From Cheshire West to Peterborough — a judicial attempt to narrow the definition of deprivation of liberty?

Summary

In Peterborough City Council v SM [2024] EWHC 493 (Fam), handed down on 6 March 2024, Mrs Justice Lieven took a radical approach to the question of deprivation of liberty for a 12 year old girl, which may have wider implications. 

Deciding, essentially, that the restrictions on SM were the result of her profound disabilities rather than any intervention by the state, the judge held that this meant she should not be regarded as deprived of her liberty for the protection of her human rights under ECHR Article 5.

This is very difficult to reconcile with other case law from the Supreme Court and the Court of Appeal. Although some may welcome a pragmatic result in an individual case, anything that brings more confusion into the difficult world of defining and dealing with deprivation of liberty is likely to cause much wider problems. 

SM

SM is a 12-year-old girl with many and severe disabilities. She was diagnosed with a brain disorder, Lissencephaly, at 5 months of age, and has epilepsy, global development delay and scoliosis. Crucially, for this judgment, she is non-mobile and non-verbal. 

Her only movement is to push her hands away, which allows her to do no more than to wriggle a little from side to side in her bed. She cannot communicate in any form and though her cognition is hard to assess, her mother describes her as responding like a child in the first few months of infancy. 

All her care needs, of course, are met by carers, including feeding through a gastrojejunal button. 

Ordinarily, there would be no question of her being considered deprived of her liberty as, under 16 where the child cannot consent, this would be covered by the consent of a parent, but SM is subject to a care order and lives with a foster family, who provide her with excellent care. 

As such, the local authority applied to the High Court for an order to authorise, in her best interests, what it regarded as clearly being a deprivation of her liberty – she was under continuous supervision and control and not free to leave, without any valid consent, and it was imputable to the state, so there needed to be a due legal process to authorise this to meet her rights under Article 5 ECHR. 

CAFCASS, acting as the child’s guardian, said that an order authorising a Deprivation of Liberty (“DoL”) was not necessary on the facts.  

Lieven J’s Decision

Lieven J decided that SM was not deprived of her liberty. She was clearly influenced by the practicalities and resources: “DoLs orders have become a depressingly common matter in the Family Division of the Family Court." [Picky point, but I do think referring in this way to High Court Orders to authorise a deprivation of liberty can cause confusion with authorisations under the Deprivation of Liberty Safeguards (DoLS), which only apply over 18 years and in care homes and hospitals, which is why, of course, cases like this much come to the High Court]. "Over the period of 12 months something in the region of 1700 such orders have been made.”  Such “exponential growth” is the result of the Cheshire West judgment, as well as the lack of places in appropriate secure accommodation. 

She may also have in mind, perhaps, the practical impotence of the safeguards: “I emphasised during the hearing that the issues before me have nothing to do with the quality of her care, and the support SM gets will not change by reason of any order I do or do not make.”

Lieven J started by saying that:

• supervision at all times 1:1 (whether by someone present or live video feed);
• being moved by carers to meet her welfare needs;
• feeding and administering medicine;
• dressing and undressing her, washing and managing her incontinence; and
• having bars on the bed sides to prevent her falling

are all “on any analysis part of her care provision, and not actions which deprive her of her liberty. This would be the case whether or not SM was severely disabled. It is important that the "mission creep" that seems to have set into the DoLs applications to the High Court [sic]. There are many aspects of care which may intrude on an individual's privacy and autonomy, and which may interfere, albeit with justification, into the scope of Article 8. But they are not interferences with the right to liberty enshrined in Article [5]”. [Confusingly, the judgment actually says “Article 8” here, but I think that only makes sense if it is a typo for a reference to Article 5].  

The only other aspects of the care identified are that SM was supported outside the home 2:1 at all times (I am not sure why that is not seen as just part of her care in the same way as the care within the home) and that external doors are locked for security. 

Turning to the case law, Lieven J emphasises the protection of physical liberty, and concludes:

“This is a case where the LA's application takes the principles set out in Cheshire West to a logical but extreme conclusion that, in my view, defies common sense and is not required by the terms of the Supreme Court decision. It is important to note that Cheshire West was concerned with the three individuals' inability to consent to the deprivation of their liberty, and their apparent compliance with the restraints placed upon them. They were all physically capable of leaving the property, and would have been stopped if they had tried to do so. That is not the facts of the present case”. (para 31)

“The test for whether there is a deprivation of liberty adopted in Cheshire West was whether the individual was under constant supervision and control and not free to leave. It was axiomatic that they were not free to leave because of some action (or inaction) of the State. Cheshire West does not deal with the situation of a child such as SM who is incapable of "leaving" because of a combination of her physical and mental disabilities, not by reason of any restraints placed upon her”. (para 33)

“There are a number of different ways of explaining why SM is not deprived of her liberty in breach of Article 5, but they all come down to focusing on the reason why she cannot leave where she is living. That reason is her profound disabilities, not any action of the State, whether by restraining her or by failing to meet the State's positive obligations to enable her to leave”. (para 35)

“SM is undoubtedly under close supervision and control, but that is not in order to prevent her leaving. The close supervision is to meet her care needs. It does not need to be, and is not, for the purpose of preventing her leaving, because she is wholly incapable of leaving, both because of physical inability but also because she is unable to form any desire or intent to leave. It is simply not a concept of which she has any consciousness”. (para 37)

“On a conceptual level it is difficult to see how one can be deprived of something that one is incapable of doing. Equally, how can one be deprived of a right that one is incapable of exercising, not through the actions of the State or any third party, but by reason of one’s own insuperable inabilities”. (para 38)

“There will be many instances where a disabled person cannot do something through their own volition, by reason of their disability, but could do it with appropriate support. An obvious example is a disabled person who cannot move without a wheelchair, and therefore cannot leave the property without assistance. It is easy to see that that person may be deprived of their liberty because they are not free to leave, even though they need third party help in order to leave. In that situation the State may be under an obligation to assist the person in leaving, and failing to do so might amount to a breach of Article 5. Equally, there will be people with mental disabilities, who may not assert their right to liberty, but are restrained by being told that they are not allowed to leave. Those are the type of situations which were in contemplation in Cheshire West.

However, that is a wholly different situation from that of SM. She is both physically incapable of exercising her right to liberty, and mentally incapable of asserting it”. (para 39-40)

Cheshire West set out that the proper approach for considering whether a child is deprived of their liberty is to contrast the restrictions on that child with a child of their age without their disabilities. Lieven J said that this would be “a wholly unreal exercise, and one that leads to a nonsensical result.” (para 41)

“The able bodied 12-year-old is plainly not an appropriate comparator because there is a material difference between them and SM as regards the matter in question, here the constant control and supervision. There may be good reason to apply a strict approach to Article 5 in respect of disabled people given the fundamental importance of protecting liberty. However, a discrimination argument does not, certainly on the facts of SM's case, progress the analysis.

The need to ensure the universal applicability of Convention rights is central to the analysis in Cheshire West, and how the term "deprivation of liberty" is defined. However, that does not mean that where the facts show overwhelmingly that the State is not depriving someone of their liberty the universal quality of the right force the Court to a conclusion that defies the facts and commonsense”. (para 43-44).

Comment

I have quoted from her judgment at length because is it the reasoning for Lieven J’s decision that is important, and it is, with respect, really problematic in a number of ways. 

The initial distinction between (1) simply providing care and (2) actions which deprive someone of their liberty treats them as if they are different things (rather than 2, sometimes, being the result of 1). This feeds the (misplaced) idea that appropriate care in itself is not a deprivation of liberty, so that the various safeguards of Article 5 would only be triggered if there was a concern about the care itself. That was the fundamental thinking of the Court of Appeal decision in Cheshire West that was so firmly rejected in the Supreme Court in that case.

In this, and other ways, Lieven J’s judgment is very difficult to reconcile with higher authority where each of these arguments has already been dismissed.

Most obviously in Cheshire West itself, where Lady Hale giving the leading judgment in the Supreme Court held that “what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage”. (para 46)

In Re D the Supreme Court was mainly concerned with the question of whether a parent could give consent to what would otherwise be a deprivation of liberty for a child once they reached 16. There was no real argument that D should be seen as deprived of his liberty (both before and after the age of 16) unless it was negated by valid consent. Lady Hale, again, held that “quite clearly” the degree of supervision and control to which D was subjected in his placement was not normal for a child of his age, and went on to say that his mental disability makes no difference to the protection of his human rights in this respect. 

In Mostyn J’s unsuccessful campaign to establish that a lady known as KW was not deprived of her liberty by a care package in her own home, he had argued that she was not independently mobile, and so it was nonsense to suggest that she was not free to leave. In strikingly similar language to Lieven J’s judgment, Mostyn J had argued that “the protected person was "merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury". At para 25, he said that he found that KW was not "in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom.” This was firmly rejected by the Court of Appeal which said that Mostyn J might not like the Cheshire West judgment, but the law was clear and had been settled by the Supreme Court. 

Unfortunately, in SM’s case we are not likely to see an appeal since the child’s guardian was successful, and the local authority has no interest in appealing the case, meaning we will have to wait until it can be considered by a higher court in another case. It is fair to say that the approach taken by CAFCASS as the child’s guardian in this case is very different to the attitude of the Official Solicitor (acting for adults) in other cases seeking to assert the protection of Article 5.

But there is nothing in Lieven J’s reasoning that limits her logic to a child. There is lots in there for someone who wants to argue that there is no deprivation of liberty at any age – that the person is so disabled that they cannot assert their liberty anyway; that we are just providing appropriate care to meet their needs; all reasoning strongly rejected in the Supreme Court and Court of Appeal already. 

To the extent that Lieven J suggests that it might be different for a person with a physical disability who wants to leave somewhere, or perhaps to someone with a mental disability who is stopped from leaving, it seems to simply discriminate against someone who has both a physical and mental disability (SM could neither physically leave nor could she decide she wanted to). It is hard to square Lady Hale’s obvious intention to protect the rights of people with disabilities with the idea that human rights to liberty may extend to someone with either a mental or a physical disability, but not to someone with both. 

Nor is it clear that continuous supervision and control should be downplayed, as Lieven J does here, where she sees it as not for the purpose of preventing someone leaving. 

Further, there is a fundamental problem with the approach taken to being not free to leave. By making the person’s immobility a central issue, the judgment pulls the lens too tightly on whether SM can physically come or go from where she lives. But the courts have been absolutely clear that for Article 5 the issue is whether she could go to live somewhere else - could she simply pack her bags and leave? And for someone with a disability such as this, the question to ask is what would be done if someone with a proper interest in their welfare turned up and wanted to take the person to live with them? We might argue that is different for a child, as here, where they might not expect to be making decisions for themselves about where they live anyway; but there is real danger in conflating the physical “ability to leave” with the idea of being “free to leave” for the purposes of Article 5, in a way that could be misapplied more widely. 

For all these reasons, until there is further authority on these issues, this is a case we recommend is treated with caution before relying on it, and especially so before extending its reasoning more widely, including beyond the age of 16, where there is no question that the case law of Cheshire West and Re D take precedence.

Context

It is perfectly legitimate, of course, to question whether Cheshire West has gone too far, especially where the hugely increased scope of people seen as deprived of their liberty in law has not nearly been matched by the resources available to the various systems to legitimise this, whether under DoLS or in the Court of Protection or the High Court. 

As a result, there are tens of thousands of people unlawfully deprived of their liberty nationwide. Many thousands of cases that should be brought to court and are not and only 19% of DoLS referrals are processed within the statutory 21 days, with an average time now of 156 days. There were 126,000 DoLS authorisations incomplete at the end of the last financial year with nearly 40,000 of those outstanding for more than a year. Just under 50,000 people had died while waiting for a DoLS authorisation to be processed. 

Others may well agree with Liven J’s complaint about “mission creep”. Have we now cast the net so wide that those who most need the safeguards are lost in the backlogs, among those who may need them less?  

It is clear that we are not going to see reform to the system anytime soon, with the Liberty Protection Safeguards (LPS) proposals now dropped for the foreseeable future; nor the resources invested in the system to better meet the scale of demand on it (what the impact assessment to the LPS reforms boldly called “fully operationalising” DoLS and costed at an additional £1.92 billion every year (the most recent of the three LPS impact assessments in March 2022).

If we are not to go on like this, then, the only way may be to move the goalposts judicially, to change the scope of the demand on the system by taking a different approach to defining deprivation of liberty in the courts.   I have speculated that there might be scope for this to be done on a principled basis in looking afresh at the subjective element of defining a DoL where there is “assent” (even without capacity to consent) and there is no coercion; or that the courts might extend the Ferreira argument that Article 5 is not interested in life saving medical treatment (whatever that means) to take other “contexts” out of scope of DoL, perhaps when the person is living in their own home rather than a residential or institutional setting? 

Lieven J takes a different approach, directly taking on the very fundamental basis of Cheshire West and its approach to the objective test of confinement for the purpose of a DoL

Coming up to the tenth anniversary of Cheshire West, and without reform or resources in sight to tackle the obvious problems with the system, perhaps this is the start of a fresh judicial backlash. But the reasoning in Peterborough is an awfully long way from Cheshire West, with real risk that it could be misapplied, leading to safeguards being denied to those who may need them most.