“The features of the disorder (which are displayed by C) include the following behaviour problems: self injurious behaviour, physical and verbal aggression, temper tantrums, destructive behaviour, hyperactivity, restlessness, excitability, distractibility and severe sleep disturbances, which include frequent and prolonged night waking and early morning waking.”
“People with Smith Magenis Syndrome have marked difficulties controlling their emotions. Behaviours include frequent temper tantrums and outbursts, aggression, anxiety, impulsiveness and difficulty paying attention. These can be short lived but extremely intense at the time. During such aggression, people can get seriously assaulted and objects thrown and broken. People with Smith Magenis Syndrome appear to have very little control over their aggression at the time, but are remorseful after the event. These features have been present in C from an early age. Self-injurious behaviours are universal and typically include hand-biting, self pinching/scratching and picking at sores, hitting the head or body, picking skin around the fingernails and tearing or pulling at the nails. The self injury is often a response to frustration or anger and can be extreme, possibly due to the decreased sensation in the extremities and relative insensibility to pain that is a characteristic of affected individuals. Boredom or habit may be other reasons for self- injurious behaviours. C displays self-harming behaviours in the form of nail pulling, wound picking and head-banging … There are high rates of autism-like behaviours in Smith Magenis Syndrome such as stereotypic behaviours, a need for ‘sameness’ and difficulty adjusting to a new routine. People with Smith Magenis Syndrome are less impaired in their communicative abilities and sociability than one might expect from purely autistic children. Severe sleep disturbance is a hallmark of the syndrome and has been reported to be near universal. The problems described include difficulties falling asleep, shortened sleep cycles, frequent and prolonged night awakenings, early morning waking, excessive daytime sleepiness and daytime napping. Evidence suggests that there is an underlying problem in the biological clock in the syndrome. C displays all the characteristic features of sleep disturbance seen in Smith Magenis Syndrome. People with Smith Magenis Syndrome are frequently described as loving and caring, eager to please and with a good sense of humour. They like adult attention and enjoy interacting with adults, though the desire for individual attention from adults may be intense. Many also love music. They react well to consistency, structure and routine. These characteristics also describe C.”
“This is a rare condition associated with developmental delay, learning disabilities, behavioural difficulties and disturbed sleep patterns and is caused by a small deletion (microdeletion) on Chromosome 17. The most distinctive features of Smith Magenis Syndrome are the behavioural problems. These include self-injurious behaviour such as hand biting, self picking or scratching, picking at sores, hitting the head or body, tearing or picking fingernails or the skin round the nails, physical and verbal aggression, frequent temper tantrums, destructive behaviour, hyperactivity, restlessness, excitability, distractibility, removal of clothes and severe sleep disturbances including difficulty falling asleep, shortened sleep cycles, frequent and prolonged night waking and early morning waking. Autistic type behaviours such as resistance to change, repetitive questioning and pre-occupation with particular topics are also common.”
“A is a very vulnerable little girl who needs ongoing monitoring and support. To ensure that A does not leave the family home the external doors are kept locked at all times and keys hidden or with her mother. At night A would leave her bedroom and put herself at risk. She has in the past turned on taps in the bathroom, eaten soap, turned on the electric oven, eaten frozen food and tried to get out of the house via the garage door. A is a very determined little girl who does not have any insight into dangerous situations and will persevere at risk to herself and the household … Safety gates at the top of the stairs or on bedroom door are no barriers to A, as she will either climb over them. She is also able to open them. Safety gates do not provide any barrier to A and could also pose a danger if she tried to climb over the gate on the stairs. Given A’s sleep pattern it is not practical for someone to sit with her until she falls asleep, this would necessitate someone remaining with her all through the night. Windows are fitted with locks, keys have been removed and kept with mother to ensure that A does not open the windows. The bedroom window has double glazing, although this is safer there is always a risk of this being broken. Items that could be used to break the window have been removed from the bedroom. A combination of door sensors has limitations during the night. Response from parents could not be instantaneous and therefore would put A at risk. The only way the family are at present able to keep A safe during the night is to keep her door locked. They do check on her regularly and A will shout if she wants to come out of her bedroom, however this is said to be rare. Most mornings A is ready to come out of her room, however she occasionally indicates that she wants to remain her room for a while longer. It is reported that A does not become distressed with regard to her bedroom door being locked. If A shouts to them during the night her shouts will be responded to and they will go to ensure that she is alright. Parents have reduced the risk of harm during the night by removing objects which would be a danger to A, however all risks cannot be alleviated in the normal way. The key to the door is kept with the mother at all times.”
“B told me that A requires constant supervision at home. She describes that she is incredibly active, has no concentration, limited attention span, and no concept of danger. B describes A as being very clumsy and she will frequently bump into things. She is very active, will not sit down and is always ‘on the go’. B describes A charging around the house with no concept of danger … B told me the most difficult time of the day is during the night. At the most, A sleeps for four hours in total, but this tends to occur in 30 minute chunks. B places A in her bedroom and locks the door. If the door is not locked A will frequently leave her bedroom and at these times can put herself and others at risk. During the night, A is at risk of falling down the stairs. In the past, she has gone downstairs and eaten food from the freezer. B reports that she has found A with her head in the oven and there have been times when there have been concerns that A could be at risk of starting a fire in the family home during the night. On one occasion, A placed a tub of salt in the microwave. She has also been observed lifting her baby brother out of his cot and thereby putting him at risk. B is also concerned that, should A leave her bedroom during the night, she could vacate the home and, as she has a history of approaching non-familiar adults, would be at risk. At interview B told me that, during the night, she will frequently check that her daughter is okay in her bedroom and A will knock on the door should she want to come out. B told me that there are many times when A wants to be left alone in her room. B may open the door to let her daughter out of the bedroom, but A will refuse to leave and will slam the door in B’s face, indicating that she is not ready to come out.”
“A’s level of understanding seems, at best, to be at a three year level. From information I have available to me, I believe that A knows her bedroom door is locked. However, she does not have any insight to why this happens or the risk that her behaviour puts herself or other people in. From my interview with A, I could establish that, if she wants to get out of her room, she knows she should knock on her door. In relation to A’s attitude to being locked in her bedroom, her behaviour indicates that she is not unhappy with this. It appears that she does not protest when she is going to bed at night and A told me that she plays, dances and goes on the slide when she is in her bedroom, giving no indication that she is unhappy during the night. A told me that she could knock on the door when she wants to get out. In addition B told me there are times when A actively refuses to leave her bedroom, indicating to me that she does not find being in her bedroom unpleasant. A’s account of her night-time routine is very limited. As noted, she told me she goes into her room and, if she wants to get out, she will knock on her door. Through the course of my interview with A, I could find no evidence that she was distressed at night or that she dislikes being in her bedroom, even though the door in locked. I have been asked to comment on A’s attitude towards her family and home. From all the information I have available to me and A’s presentation at interview, it is obvious that she has good relationships with all her family and presented as a happy little girl.”
“It is my view that having a carer in the room would not be appropriate, as it would be over-stimulating for A and would result in a deterioration in her sleep pattern. It is my view therefore that the only way of keeping A safe at night is to confine her in one space within her home. This could be done in one of two ways. Either continue with the current arrangements of locking A in her bedroom and making modifications to make the room as safe as possible. A does not resist this, she appears to enjoy being in her bedroom at night and has access to her toys and slide. The disadvantages to this option would be that, as A grows and increases in size, then opportunities to hurt herself from objects in her bedroom may increase. However, if regular assessment could be undertaken by an occupational therapist and necessary alterations undertaken, then these risks could be minimised. In my view, the other alternative would be the provision of a safe space, which provides an alternative to wall padding and is best described as a ‘room within a room’. Safe spaces are made with industrial strength PVC walls, which are positioned away from the walls of a room, the PVC is pulled taut on a steel frame and flexes to absorb impact. The flexible walls and thick soft padded floor reduce the risk of the person inside being able to harm themselves on walls, floors and other hard surfaces. A safe space has the advantages of protecting A from objects in her room, but she would still need to be confined in one space. At the moment I am unable to predict how A would actually respond to being placed in such an environment, where she does not have access to some of the toys which she likes, such as the slide. It would also provide A with a much reduced area to move around in at night and may result in increased frustration and distress. At the present time, given the uncertainty as to how A would react to being put in a safe space, it is my view that, on balance, being locked in her bedroom is the more appropriate means of keeping her safe during the night.”
“The mother said she felt she has no choice but to lock A in her own bedroom. A posed a risk to herself and others. She gave me the following examples of what happened when A is not contained in the bedroom. A: • caused a fire by placing a tub of salt in the microwave. It was the smell of the burning that woke the mother; • emptied the freezer and was found eating frozen food; • had been found with knives/scissors which she used to open packets of food; • emptied the washer/dryer machine and then attempted to enter it; • turned on the bathroom taps and left them running; • attempted on several occasions to leave the house through the front door/windows of the house; • entered her mothers room and picked her baby brother out of his cot. The mother said that she accepted that the situation was not ideal but because of the perceived danger to A and the rest of the household, the risk of not locking A in her room was greater than locking her in … The mother told me that A goes to bed between 7.30-8pm. She sleeps between 2-4 hours. When A was awake the mother would hear her banging, shouting and when she was momentarily quiet that would mean A was seated on the windowsill. The mother said she checks on A at least two-three times during the night.”
“Having the opportunity to meet A and the family on two occasions and gain a better understanding of the issues as experienced by the mother and family on a daily basis, I hold the view that the risk of A suffering harm, if her room door was left unlocked, is greater than when it is locked. Based on what I have listed [above], as told by the mother and confirmed by social services, I believe it would be negligent not to take safeguarding measures. It is to the mother’s credit that she has investigated alternate options to protect A before resorting to locking A in the bedroom. It is my assessment that the mother has the capacity to meet A’s physical and emotional needs. She has clearly given a lot of thought to how her actions impact on A’s welfare. I have no doubt of the mother’s love for A and that her primary concern is about the risk A poses to herself and the rest of the family. I believe the mother would find it difficult to forgive herself if anything happened to A because she failed to act or protect … I think it will be helpful for the court to make a declaration on the issues concerning A’s human rights, so that there will be clarity between the mother and the local authority concerning the steps that can be lawfully taken within the home to protect A from herself. Beyond that I do not see any welfare grounds requiring an order to be made, and I certainly do not see any need for the local authority to have either a care, or supervision order in respect of A … It is my view that in this case the actions of the mother are necessary and unavoidable. Her actions are not borne out of selfish motivation or maliciousness, but because she genuinely, and rightly, believes A would harm herself and pose a risk to the rest of the household if left in an unlocked room and unsupervised during the night. This point is echoed in Dr Rippon’s first report … On that basis, and on purely welfare grounds, my observation would be that whatever deprivation of liberty there may be is more than counter-balanced by the imperative need to protect A from her own actions. And that the mother’s actions in securing her in her room at night enable the family to function in what is an extremely difficult and demanding situation. Were it not for these measures, I would have doubts whether the family would be able to function at all. And so, it seems to me that the measures actually contribute to A’s enjoyment of family life, as witnessed by me on my two visits to the home … It was not possible for me to see the ‘safe space bed’ however; I do hold reservations about the use of it. A would be able to see out of it but I believe that she could feel more enclosed than if she were locked in the open space of her room, thereby feeling the true impact of her liberty being restricted. I also, concur with Dr Rippon that the ‘safe space bed’ would limit her access to the toys and slide in her room. The advantages of the ‘safe space bed’ such as protecting A from objects in her room … or walking off the windowsill are lost when considering A’s likely reaction to being confined in a PVC constructed bed … It is my assessment that the mother’s current practice of locking A in her room is in the best interests of the child and is a significant preventative measure in protecting her from harm. As a result I believe it should be allowed to continue. This would not prevent the mother and the local authority continuing to search for alternative ways to keep A safe, including by agreement, a trial period using the ‘safe space bed’.”
“A feature of Smith Magenis Syndrome is an erratic sleep pattern. As it can take 2 hours for C to go to sleep she is encouraged to go to bed around 9pm-9.30pm. C will then read her magazines and look at her books for about 2 hours. It is likely that C will wake up again after sleeping for a couple of hours and then be awake again for up to 2 hours. This pattern can occur throughout the night. When awake C would leave her bedroom and go downstairs. Without supervision it is likely that C’s destructive behaviour would result in her destroying furniture and fittings within the home and as a result of this she would be at risk of harming herself as well. C would also empty the contents of the fridge and cupboards and eat copious amounts of food, whether cooked or not. She would also tamper with the electric cooker and other appliances. In order to prevent this C is locked in her bedroom overnight. Previously there was a lock with a key before the current bolt was fitted. C would kick the door causing the key to fall out with the risk of it becoming lost. No keys are required for the current lock therefore the key can not be lost. Her parents advise that should C shout for them they do go and attend to her immediately. Usually however, they are aware that C is moving around her bedroom but she is not calling out for them nor is there any sign that she is distressed in any way. It appears that C is content to spend time looking at her books until she falls asleep again.”
“Several options have been tried to keep C safe overnight without having to lock her in her bedroom. None of these have been successful. Due to the open plan layout of the home there are no internal doors downstairs which can be locked to prevent C accessing rooms. Once downstairs C has access to kitchen, dining room and living room. As well as the risk of harming herself she would also destroy the fixtures and fittings. There is no cure for C’s condition and therefore these behaviours will continue throughout her life. As the erratic sleep pattern is also part of her condition this will also continue. If C is not locked in her bedroom overnight then her parents would have to be up with her every time she was awake during the night in order to provide constant supervision, as in place during the day. This is not a practical solution as both parents would quickly become exhausted and E has to go out work. They would then struggle with their caring role and it would become increasingly difficult for them to continue caring for C at home. This would not be a good outcome for either them or C. The family have very strong bonds and her parents are committed to providing C with as many positive opportunities as possible.”
“The current system of locking C in her bedroom appears to be the most appropriate solution to ensure both C and her parents get sufficient sleep. C is generally settled in her room overnight and if she does wake up tends to spend time reading her books until she falls asleep again. Should she shout for attention her parents can easily hear her and get up to attend to her. When C wants to get up in the morning, which can be any time from 5am onwards, her parents get up as well. The bedroom is locked for the shortest possible time and is the least restrictive option to manage the risks.”
“D and E reported that C has had her bedroom locked at night for many years now, and she is very settled with this regime. The sound of the door locking is now a cue for her to settle down and get ready to sleep. Her parents described and showed me the open plan nature of their home, and it was clear from this that there is no area that could be locked other than the bedroom which would prevent C from accessing the rooms downstairs. They said that any attempt they have made in the past, such as putting up safety gates, have not worked as C can be quite determined to circumvent them, and was described as showing a remarkable degree of strength and persistence at destroying things. The cupboards in her bedroom are locked so that she does not have access to these books and games except when she needs them. However there are plenty of other games, books and toys in her room on open shelves that she can access at any time. The TV and computer are in a locked unit, and the electrical switches are kept out of the way, because if she had the opportunity, she would turn everything on and play with it throughout the night. They said that C did have some idea that things are out of the way for a reason, but the situation is now so normal for her, she really does not think about it and is not worried by it. They said that as she has got older, she has got better at only touching her own belongings and not interfering with other people’s. However she still ‘trashes’ her bedroom from time to time, at a frequency of one or two times a week. There has been no change in her sleep pattern for many years. Some nights she can fall asleep straight away, whereas others she can ‘be quite merrily singing away at 2.00 or 3.00am.’ Her parents often hear her pottering around in her room in the early hours of the morning. C indicates to them if she wants to go out usually by knocking on the bedroom door, which may be because she wants a drink or her continence pad needs changing … It was their strong opinion that she does not have the capacity to decide whether to have her bedroom door locked or not. They said that if anyone was to ask her the question, she would give them varying responses depending on how it was phrased and to whom she was talking. They described her as ‘answering without meaning’. They said if the door were left open, she would wander around. If the front door were left open, she would wander through the streets in various states of undress including being naked. They have tried unlocking the door after she falls asleep, but have discovered that this does not work as she often wakes up through the night and is very adept at sneaking past their room and downstairs without them hearing. Therefore they have now adopted a routine whereby they unlock it at 7.00am (later at the weekends) so that when she wakes up she can leave her room when she wants … C is awake and up at some point nearly every night. Most nights her parents have to go into the room in order to attend to her. She gains their attention by shouting, knocking and banging. She may ask for a drink or her pads to be changed. They said that she always knocks if she wants them for something. Most of the time she does not try the door handle, though can occasionally bang or kick the door. However this is nearly always as part of a temper outburst rather than an attempt to get out, as she is also kicking the walls and the furniture. However the door causes most noise when kicked, and this may be the reason it is preferred. Her parents felt that C views being in her room at night with a locked door as entirely normal and part of her routine. She does not complain about it, she just merely accepts this is what happens at home.”
“C’s understanding of being locked in her room is restricted to an account of the physical process. When I asked her why, she said it was so she could sleep. She did not equate being locked in her room as being a consequence of her behaviour or management thereof. She therefore does not understand that she is being locked in her room. She has no awareness of the social context of being locked in her bedroom. She would not appreciate this was in some way unusual, rather she would view it as something that happens when she is at home at night and it is time for bed . She told me she liked her bedroom, which was full of her personal items and was well appointed given the level of destruction caused by C on a regular basis. When she showed me round her bedroom it was with a sense of pride. There was no sense of her being upset or distressed by being in her bedroom. This, in my view, would suggest that she does not consider her bedroom in a negative way, or as a place of punishment. Rather the opposite, her view was entirely positive … I asked what she would do if she wanted her mother or father; she indicated she would knock on the door.”
“C has an excellent quality of life at home. In a case such as this it is important to view the care package in the round. I am strongly of the opinion that she would not have as good a quality of life in any other setting. The priority therefore has to be to maintain the home situation whilst ensuring that any potential deprivation of liberty is avoided or appropriately safeguarded. The risks to C of being allowed to wander the house at night unsupervised would be substantial, and could not be justified. There is therefore required a reasonable and proportionate response to lower these risks. In reality, this can only be achieved by one of two means (1) C being contained within a relatively safe area where risks are minimal and/or (2) C is supported at all times in areas of significant risk by a carer (either parental or professional).”
“Having reviewed the case and relevant literature, it is my view that the only two methods that can be reasonable considered in this case are: (1) To continue with the status quo and keep C’s bedroom locked, or (2) To utilise a night time carer, who will support and safeguard her through the night whenever she gets up. C’s parents need to be assured that C is safe, and the same time, they need to receive sufficient rest to allow them to continue in their roles. It is not reasonable to consider either parent providing the 1:1 nighttime support without risking a breakdown of the entire care package. It is necessary therefore to have a professional carer.”
“In light of the above analysis, it is my view that for C the advantages of retaining the current system far outweigh the disadvantages. Furthermore, the range of alternatives is realistically limited to just one, the provision of nighttime carers, and the disadvantages of this option outweigh the advantages, principally by virtue of the nature of C’s medical condition.”
“The use of the locked door at night has resulted in a reduction in both the likelihood and seriousness of harm. It is of course a decision of the Court of Protection as to whether the response was proportionate. It is the view of this assessor, in the absence of alternatives, that it is not a disproportionate response. It is the opinion of this assessor that the family have attempted to try a reasonable range of alternatives, but unfortunately without success. The only alternative that could be considered is the use of a nighttime carer for C. The use of a night time carer is less restrictive than having a physical barrier in place and her parents on hand to tend to her needs and to support her going to other areas within the house. However even with the locked bedroom, C can leave when she wishes, albeit by first having to alert her parents that she wants to get out. This is not fundamentally different to the daytime situation should C wish to go outside; she would indicate to her parents/carer that she wanted to go outside, they would unlock the door and go out with her. However the clinical situation would be worse with the long-term use of a nighttime carer … due to it interfering with C’s already poor sleep pattern, and ultimately increasing risks associated with C. If the door was opened but a nighttime carer was present, C would be awake more and would be out of her room more often. A large driver for this would simply be to interact with the carer. The carer would presumably encourage C to return to bed and to sleep rather than promote C getting up and wandering around the house (especially as this would disturb the parents). Almost inevitable therefore C’s carer would act in a sense as a form of ‘barrier’ to C leaving her bedroom, encouraging her to return to bed. Therefore there is still an element of restriction with the use of a carer through the night.”
“C has an excellent quality of life considering the nature and degree of her disorder. Having reviewed the care package as a whole, I am of the opinion that it is comprehensive and meets all of C’s needs. The current strategy of locking C’s bedroom door at night appears to be working well in that risks are managed to a reasonable level. C does not object to the door being locked and is not coming to harm due to the procedure. The only real alternative is to employ a night time carer. However there are significant disadvantages to this, but principally it could increase C’s overall level of risk as her sleep pattern would be more disturbed using this approach. This would also have implications for her developmental progress and on the long-term ability of her parents to care for her.”
“It is lawful being in A’s best interests that: (a) A remain in the care of B. (b) Such steps as are currently being taken to prevent A from causing harm to herself and acting in a destructive and life-threatening manner at night – namely being locked in her bedroom with ongoing risk assessments: (i) are reasonably proportionate and (ii) to the extent that such acts constitute a deprivation of liberty underArticle 5 ECHR , the court authorises the deprivation of liberty until further order.”
“Whether in all the circumstances of the case A is being deprived of her liberty within the meaning of Article 5(1), namely whether: (a) the objective element is satisfied, ie A is being confined in a particular restrictive space for a not negligible length of time and having regard to the type, duration, effects and manner of implementation of the restrictions, in particular that they are imposed by A’s parents in the family home at night for the protection of A’s health and welfare (and considering, in particular, the role of parental authority in the light of Neilsen v Denmark) For obvious reasons the parenthetical reference to Neilsen v Denmarkis omitted from the preliminary issue in C’s case. ; (b) the subjective element is satisfied, in that A has not validly consented to the confinement in question; and (c) the deprivation of liberty is one for which the State is responsible, having regard (among others) to the fact (i) A is being confined in her own bedroom by her parents and (ii) the local authority are actively involved in A’s care in the form of providing care services.”
“In 2007 the Hansel Trust published a research document entitled “Sleep? What’s that?” which looked specifically at such issues … The Hansel Trust is an independent voluntary organisation which works to promote support for families with disabilities. In this particular survey of parents and/or carers with severely disabled children they found that … 38% of children with sleep problems need containing … The report of the Hansel Trust indicates that sleep problems such as those set out in facts of these proceedings are by no means exceptional within families caring for a disabled child. The Hansel Trust has estimated that as many as 246,000 families in England and Wales are potentially experiencing sleep problems. If 38% of these families are resorting to containment the question of deprivation of liberty is likely to be an issue for many local authorities. A 2001 report by MENCAP entitled “No Ordinary Life” … found that 60% of people with a severe and profound learning disability live at home with their parents … There therefore appears to be a significant number of incapacitated individuals who are being cared for within private family homes under the supervision of local authorities. Whereas there are now procedures in place regarding the deprivation of liberty of incapacitated individuals under the Deprivation of Liberty Safeguards these do not apply to private homes or to children under 18 years of age. Although it is clear in these proceedings that the individuals involved are well cared for within a loving family home, the Commission is concerned at the potential for abuse where there is no external scrutiny of the treatment of vulnerable are adults within private homes. This is particularly the case when the person being locked up is incapable of taking personal responsibility, and the person with responsibility is making the decision as to the manner of restraint. The Commission can see no justification as to why such individuals should not be considered as being at risk of being deprived of their liberty and be excluded from the safeguard procedures which apply for those being locked in rooms in accommodation elsewhere. Nor should children have less protection than adults.”
“The Commission does not seek to adopt a position in line with one or other of the parties in these proceedings but wishes to ensure that a system exists to protect vulnerable individuals, particularly in circumstances where they may have difficulty in exercising their rights. The Commission is therefore of the view that where a local authority is aware, or ought to be aware, that there is a real risk of a deprivation of liberty the local authority must carry out an assessment to ascertain if a deprivation of liberty is taking place. The assessment process should include the appointment of an advocate for the person whose liberty is being restricted. Should the local authority and advocate agree that that the restriction is proportionate then there will be no deprivation of liberty. If the local authority and/or the advocate do not find the restriction is proportionate then the local authority must apply to the Court for a ruling on the lawfulness of the restriction. The Commission is of the view that such a procedure is not only required by law, but is also fair to the parents/carers and the local authority. Most importantly it offers protection to a potentially large number of vulnerable children and adults.”
“1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (e) the lawful detention … of persons of unsound mind … 4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
“In my judgment in a case such as this the local authority incurred the following duties: (i) to investigate the position of a vulnerable adult to consider what was her true position and intention; (ii) to consider whether she was legally competent to make and carry out her decision and intention; (iii) to consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options; (iv) to consider whether she was legally competent to make and carry out her decision and intention; Mr Bowen points out that para (iv) is a repetition of (ii), but I have checked the accuracy of the quotation and it is correct. This no doubt editorial slip in the original does not affect the substance of what Hedley J was saying, which is perfectly clear. (v) to consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined; (vi) in the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests; (vii) in the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests; (viii) where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police; (ix) in very exceptional circumstances, to invoke the jurisdiction of the court unders 222 of the Local Government Act 1972 . My view is that its duties do not extend beyond that.”
“officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act”
“Where a parent has … willingly shouldered the burden of looking after his mentally incapacitated son and wishes to go on doing so, he does not cease to be an appropriate person to do so merely because his son has now turned 18. Indeed, respect for the realities of the human condition rather than any mere regard for so-called parental right would surely suggest that in such a case, other things being equal, it is precisely the parent who is the ‘more appropriate person’ and not some public authority, however well-intentioned.”
“[30] … the fact that the assessment of the option of a family placement was not given priority is a matter of concern. Placement in the family should be at the top of any priority list before alternative non-family placements are considered. … [33] Before a local authority seeks to invoke the court’s powers to compel a family to place a relative in a residential care home, the court is entitled to expect that the authority will have made a genuine and reasonable attempt to carry out a full assessment of the capacity of the family to meet the relative’s needs in the community.”
“the way in which Channel Four went about the filming, something about which both the local authority, and more particularly the Official Solicitor, make strong complaint. [Counsel] complains that neither the filmmakers nor Judy consulted with the local authority responsible, as she puts it, for Pamela’s care, nor with the Official Solicitor whom Judy knew was representing Pamela in relation to her community care needs. The filmmakers, she says, continued to proceed as though the Official Solicitor was not involved, and as if there was no local authority responsible for Pamela, even after they had made their responsibilities clear. They showed the film to Pamela several times without, as Ms Morris puts it, any consultation with those responsible for her as to the effect the film might have on her. Ms Morris asserts that ‘there is a public interest in filmmakers not going about making films as they did in this case’. She submits that ‘there is a positive obligation on the court under Art 8 not to establish a precedent which allows filmmakers or other media to benefit from commencing filming children or incapable adults without notice to or consultation with those concerned with their care’.”
“ … It is to be noted that, even now, the local authority has still not commenced any proceedings under the inherent jurisdiction with a view to regulating Pamela’s care. The local authority’s formal role in the matter is, essentially, as a provider of community care services to Pamela under the community care legislation (though in saying this I do not overlook its responsibilities to Pamela under the Department of Health’s No Secrets). Prior to the commencement of the present proceedings the Official Solicitor’s only formal role was as litigation friend in relation to Pamela’s community care needs. Judy’s role may be self-appointed but she is not a mere busybody. And as I pointed out during the course of argument, the doctrine of necessity … clothes Judy, unless and until she is replaced, with authority to act in Pamela’s best interests in so far as she lacks the capacity to take her own decisions … I do not differ from what Sir Stephen Brown P said in Nottingham City Council v October Films Ltd[1999] 2 FLR 347 . And a very similar approach might well be called for in a situation where a local authority had assumed some kind of formal responsibility for an incapable adult, for example by taking proceedings under the inherent jurisdiction … (… as the local authority is now planning to do here See now St Helens Borough Council v PE[2006] EWHC 3460 (Fam) ,[2007] 2 FLR 1115 , and, for subsequent proceedings in the Administrative Court, R (St Helens Borough Council) v Manchester Primary Care Trust (PE, interested party)[2007] EWHC 2391 (Admin) , appeal dismissed St Helens Borough Council v Manchester Primary Care Trust and anor[2008] EWCA Civ 931 . ) or under theMental Health Act 1983 or, when it comes into force, under theMental Capacity Act 2005 . But I do not agree with [counsel] that one can, as it were, extrapolate from that to the more sweeping proposition for which she seems to be contending, that the media, whether the print media or the broadcast media, must first consult with the relevant local authority or with the Official Solicitor before seeking to interview or film a vulnerable adult, or even an adult who is in receipt of care and support under the community care legislation.”
“The Court has consistently held that the responsibility of a state is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that state of its obligation under Art.1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction. Consequently, the Court has expressly found that Art 2, Art 3 andArt 8 of the Convention enjoin the State not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by state agents or private parties. Having regard to this, the Court considers that Art 5(1), first sentence, of the Convention must equally be considered as laying down a positive obligation on the state to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court’s case law, notably under Arts 2, 3 and 8 of the Convention. It would, moreover, leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is, therefore, obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.”
“The Court observes that it is not disputed between the parties that the applicant’s confinement to the private clinic in Bremen had not been authorised by a court or any other state entity. Likewise, at least at the relevant time, there was no system providing for supervision by state authorities of the lawfulness and conditions of confinement of persons being treated in the said clinic. However, the Court notes that on March 4, 1979 the police, by use of force, had brought the applicant back to the clinic from which she had fled. Thereby, public authorities became actively involved in the applicant’s placement in the clinic. The Court observes that there is no indication that the applicant’s express objection to returning to the clinic had led to any control on the part of the police or any other public authority of the lawfulness of the applicant’s confinement to a private hospital. Therefore, even though state authorities caused the applicant’s detention in the clinic only towards the end of her placement, this engaged their responsibility, as her confinement had otherwise ended on that date.”
“The Court, referring to its findings under Art 5(1), observes that on March 4, 1979 the police had brought the applicant back to the clinic by force, thereby rendering her further treatment there possible. At that stage, public authorities became actively involved in and therefore responsible for the applicant’s ensuing medical treatment.”
“Since the decision in Guzzardi(1981) 3 EHRR 333 , (a case involving a suspected member of the Mafia detained on a small island off the coast of Italy) the principle has been consistently expressed that that the aim of Article 5 is to ensure that no one should be dispossessed of liberty in an arbitrary fashion, as opposed to being subject to restraints on liberty. Article 5 is to be distinguished from Article 2 of the Fourth Protocol (not ratified by the UK) which deals with mere restrictions on liberty of movement. The Court in Guzzardi said “in order to determine whether someone has been deprived of his liberty within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … the difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … deprivation of liberty may … take numerous other forms” than “classic detention in prison or strict arrest imposed on a serviceman.”
“Deprivation of liberty may take many forms, and does not require the detained person to be kept under lock or key. But the starting point is the “paradigm” example of the prisoner in the cell (see JJ per Lord Hoffmann at [37]) which “amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has assigned. He may eat only when and what his jailer permits. The only human beings he may see or speak to are his jailers and those whom they allow to visit. He is entirely subject to the view of others.”
“described Lord Hope’s opinion as to purpose as “guarded”, referring to HL v United Kingdom and Storck v Germany, and stating that “if confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement under one of the exceptions listed in Article 5(1) (a) to (f), which are to be strictly construed.””
“In my judgment the decision in Austin cannot be divorced from its context. The question of purpose or intention in Austin was intimately bound up in the evaluation of all the circumstances, namely that the police had a duty to maintain public order and where the interests of the public had to be considered. It was pre-eminently a “balance” case. It also seems to me that although the words “purpose” and “intention” are used synonymously in certain passages in Austin, the word “intention” is not used in the same sense as in HL v United Kingdom and JE v DE. In HL v United Kingdom and in DE v JE the word “intention” is used in the sense of the mental attitude with which a person acts, whereas “purpose” in the sense that it is used in Austin is more akin to motive, the motive of the police being to exercise crowd control, rather than to confine the demonstrators. Lord Scott however in stating at [39] that “the intention of the police was to maintain the cordon so long as was reasonably thought necessary” uses the word “intention” in the sense of mental attitude, whilst Lord Hope in saying at [24] “detention in the paradigm sense was not in the minds of anyone”, seems to be referring to “motive”
“Habeas corpus ad subjiciendum (which is the form of the writ with which I am concerned) is a remedy protecting the citizen or subject against an unlawful detention or imprisonment. Detention need not be at the hands of the state or public authority. Even a domestic house may for this purpose be a prison: see R v Jackson[1891] 1 QB 671 , esp per Lord Esher MR at 682. That was the celebrated case where a wife who had been detained by her husband in his house, being given the full run of the house short of leaving it, was freed on a habeas corpus, the Court of Appeal denying that a husband has in law any right either to imprison or to confine his wife.”
“But there must be a detention. The children in the present case are not in secure accommodation (whether in the sense in which that expression is used ins 25 of the Children Act 1989 or in any other sense). They are not being detained. They are simply living with foster parents in exactly the same type of domestic setting as any other children of their ages would be, whether living at home with their parents or staying with friends or relatives. Habeas corpus does not lie because a parent, or other person in loco parentis, makes it a rule that a child of tender years is not to leave the house unless accompanied by some suitable person or because an exasperated parent has sent a naughty child to his room and told him to stay there for 2 hours or because a rebellious teenager has been ‘grounded’ or subjected to a parentally enforced curfew, any more than habeas corpus lies if the headmaster of a boarding school forbids his charges to leave the school premises except at permitted times and for permitted purposes. And it makes no difference for this purpose that the domestic rule is actually enforced by the turning of a key in a lock.”
“To return E to his home and family would not constitute a deprivation of liberty. The concrete situation will be the familiar surroundings of home and family life to which he is accustomed. Other members of his family could visit whenever they wished. In F’s home, E has his own bedroom which is always kept open due to the risks presented by his epilepsy. [Counsel for G] submits that the suggestion that E’s lack of capacity was so extreme that he would always be deprived of his liberty, wherever he was, and even if returned to F, demonstrates a fundamental misunderstanding of Article 5. The “core element” is confinement, per Secretary of State for the Home Department v E[2008] AC 499 per Baroness Hale of Richmond at paragraph 25. She submits that the suggestion that F’s home constituted a particular restricted space is untenable. Nor is there any evidence that E was confined to that home for a significant length of time. On the contrary, she submits, E was entirely free to leave, (and frequently did leave) subject only to proportionate safeguards which, at most, would be a restriction on, rather than deprivation of, liberty. There were no restrictions imposed on any person having access to him. The Official Solicitor also disagrees with the local authority, contending that if E were to return to F he would probably not be deprived of his liberty within the meaning of Article 5. But he submits that it is unnecessary and undesirable for the Court to rule on this point.”
“Common sense suggests that when considering deprivation of liberty there is a clear distinction between a placement at home, with family or an adult carer, and in a residential establishment. One can of course think of circumstances – those of the first Mrs. Rochester in “Jane Eyre”, for example – where someone might be deprived of their liberty although living at home. But in most cases the circumstances are more likely to fall into the category of a restriction, rather than a deprivation, of liberty.”
“In my view it is possible for a person to be deprived of their liberty in a domestic setting”, citing as obvious examples control orders and house arrest generally. She continued, however, with these important qualifications (paras [200]-[201]): “But conversely, even a degree of confinement in particular premises may not constitute deprivation of liberty. In my view there must be a significant element of confinement, of restriction, which crosses the line between restrictions on liberty and confinement. In JJ, the House of Lords held by a majority that 18 hours a day confinement in a small flat with other restrictions on movement constituted deprivation of liberty. Lord Brown of Eaton under Heywood (one of the majority) was the only member of the committee who gave consideration to what would cross the line. He said “18 hour curfews are simply too long to be consistent with the retention of physical liberty. In my opinion they breach Article 5. I am equally clear however that 12 or 14 hour curfews … are consistent with physical liberty … for my part I would regard the acceptable limit to be 16 hours leaving the suspect with 8 hours (admittedly in various respects controlled) liberty a day. Such a regime … can and should properly be characterised as one which restricts the subject’s liberty of movement rather than one which actually deprives him of his liberty. Permanent confinement beyond 16 hours a day on a long term basis necessarily to my mind involved the deprivation of physical liberty.”
“In my judgment the question of whether ‘P’ is in an institutional setting also cannot be left out of the evaluation. It is notable that in HL v United Kingdom it was not suggested that HL would be deprived of his liberty in the domestic setting of the home of the foster carers, a placement to which he also lacked capacity to consent or dissent, and which he was not free to leave. The foster carers are described as “paid carers” and they must, I assume, have been employed by the Local Authority with social work responsibility for HL. In HM v Switzerland, although I accept that the principles were not there so clearly defined as in subsequent cases, the setting in which HM was living seems to have been one of the factors which was taken into account.”
“There is a valid distinction in my judgment between a confinement within the home: equivalent to house arrest, as in the control orders cases, and the mere fact of being placed in a foster home. As Collins J said in GG, it is the effect of the restrictions and the extent of the confinement which matters. And Lord Bingham in JJ stressed the need to examine what the person’s life would have been like had they not been placed in the location where they are said to be confined. I do not accept that mere placement in a residential or domestic setting can be construed as creating confinement of itself just because the person cannot legally decide whether to remain there or not. In my judgment, if a person is living what is for them a normal life in a family home, and would not be living any different life in any other setting including in their own family home, then it is very difficult to see how they can objectively be confined, simply because they lack the capacity to consent to that placement. A person who lacks capacity and who cannot therefore give or withhold consent may nonetheless express a wish not to be in a particular setting. In JE v DE Munby J placed very considerable weight on the fact that although incapable of taking a decision as to his residence, JE consistently stated his wish to leave. The applicant in Storck v Germany wished to leave the hospital and attempted to run away. Notwithstanding that MIG and MEG cannot consent to their placements, the fact of happiness in their respective environments, each regarding the place where they live as home, and their wish to stay there, must be relevant to the question of both the objective and the subjective element.”
“It is said that that MIG and MEG are each deprived of their liberty because they lack the capacity to consent or to object to their placement, and that they lack the freedom to leave where they are living. In my view this casts the net too wide. I have set out above at paragraphs 202-204 my analysis, which I shall not repeat, as to whether mere lack of capacity to consent to living arrangements can in itself create a deprivation of liberty. I add that if mere lack of capacity to consent were enough then all such persons placed by a Local Authority would be considered to be deprived of their liberty. The provisions of theMental Capacity Act 2005 and the Code of Practice and the Deprivation of Liberty Safeguards Code plainly do not support that analysis.”
“on fine balance MIG is deprived of her liberty, because in the sense in which the ECHR in HL v United Kingdom, and Munby J in DE v JE analysed the concept, she is unable to decide where she is able to live, is not free to leave, is subject to continuous supervision and control, and is deprived of social contacts by the declaration which I make in relation to her family and others.”
“MIG is living in an ordinary domestic environment which she regards as home. She is not restrained in any way. She is not locked in in any way, (although she does refuse to keep her bedroom door open, causing some concern to her foster parents). She does not wish to leave. She wants to stay with JW. She loves JW and regards JW as her “Mummy”
“Although neither is able to consent to their living arrangements, the fact of their wishes is an important part of the factual context: each wants to remain living in her present environment. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment.”
“On the basis, as I have found, that placement in itself and lack of consent in itself is not sufficient to create a deprivation of liberty in the circumstances of this case, then there must in my judgment be some other specific course of action adopted or measure taken whereby restraints or restrictions are placed upon an individual of sufficient degree and intensity to constitute a deprivation of liberty. The guidance in the Deprivation of Liberty Safeguards Code supports this analysis. In neither placement in my judgment is there “confinement in a restricted space for a not negligible length of time.”
“I have not met MIG or MEG but I have read much about them and heard much too. Their wishes and feelings are manifest and clearly expressed. They plainly have no subjective sense of confinement. In a non legal sense they have the capacity to consent to their placements. I cannot imagine that any person visiting MIG at the home of JW … would gain any sense of confinement or detention. Those circumstances are in my judgment very far from the “paradigm” example of imprisonment. [Counsel for the Official Solicitor] submitted to me that the purpose of the legislation is to protect vulnerable persons who are subject to more than minimal intervention. She says that MEG will be subject to intervention and physical restraint because she is in a residential home and is medicated and that it would be “sad if she didn’t get the benefit of the legislation”