Text:DH summary of Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam)
In the A and C cases, both lived at home, one with the mother alone, one with both parents. Both were extremely well looked after. Smith Magenis sufferers have behaviour problems, are aggressive, and self-injure. They also have severe sleep disturbance. The result in both cases was that the parents felt they must lock their bedroom doors at night; as otherwise, they will leave the bedroom and cause damage to themselves and their surroundings. In both cases, the parents checked regularly, A and C were not distressed by being locked in, and both knew their parents would come if they shouted during the night. The Court held that the actions of locking them up were necessary and unavoidable because the parents rightly believed that A and C would otherwise hurt themselves.
Mr Justice (now Lord Justice) Munby (LJM) first considered the role of the local authority (L/A) in both cases.
He criticised their view that they had control over A or C. Although the L/A had important monitoring and safeguarding roles, its major function was to assess needs and provide services. LJM accepted that there were positive obligations on L/As to take reasonable steps to provide protection for vulnerable people and prevent a deprivation of liberty of which they knew or should have known. However, he held that where an L/A is in this position, they should investigate, provide support services where appropriate, and if necessary refer the matter to court. They could do no more unless they could cite specific statutory authority or obtain court sanction from the Court of Protection or the High Court.
LJM therefore concluded that the State was not directly involved in either of these cases. The L/A was providing support services only. It was not directly involved in what happened in the home of either person. It was not the decision-maker. Mere knowledge was not enough, although this might trigger a duty to investigate and seek judicial assistance. He therefore, held that the L/A could not be in breach of art 5 in these cases even if a deprivation of liberty had occurred.
LJM then reviewed whether there was a deprivation of liberty in respect of A or C in their homes. He considered the 2 elements – an objective element and a subjective one. As both lacked capacity, he held the subjective one was satisfied. However, he found the objective element was not. He held that a loving, caring, proportionate and appropriate regime by devoted parents in a loving family relationship whose objective was solely “the welfare, happiness and best interests of A and C respectively – falls significantly short of anything that would engage Art 5.” He adopted the reasoning of Mrs J Parker in the case of MIG and MEG. He decided living in a family context was very different from being a prisoner. Locking their rooms at night did not change this. He agreed that the restrictions imposed were not to restrict their liberty but to maximise their opportunities and help them to lead their lives to the full. This amounted to an appropriate and proportionate restriction upon liberty not a deprivation of liberty.
As there was no deprivation of liberty, there was no need to decide whether it could be justified as an Art 5 compliant exercise of parental responsibility.
This briefing needs to be read alongside an earlier case law briefing from the Department, and an earlier practice briefing(see links below).
There are implications not just for those attempting to understand and comply with the Deprivation of Liberty Safeguards but also for safeguarding more generally.
LJM in paragraph 96 of the above judgment says,
- “What emerges from this is that, whatever the extent of a local authority’s positive obligations under Article 5, its duties, and more important its powers, are limited. In essence, its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court. But, and this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court. Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council [2008] EWHC 152 (Admin)B, [2008] 1 FLR 1660B, at para [21]. But it must follow up any such intervention with an immediate application to the court.”