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Summary of Peterborough City Council v Mother & Ors [2024] EWHC 493 (Fam)

This was an application by the Peterborough City Council (“LA”) for a deprivation of liberty order (“DOLS order”) in respect of SM who is 12 years old with profound and enduring disabilities. Mrs Justice Lieven’s judgment set out that this case raises an important issue about the requirement for such an order in the case of a very severely disabled child such as SM.

SM’s only body control is being able to push her hands away and to wriggle and roll from side to side. Her carers move her from the bed to the floor where it is reported she enjoys. She cannot communicate in any form and does not understand language. SM does respond to stimuli and for those who know her well they can tell whether she is responding positively or negatively. All her care needs are met by the carers.

A final care order was made on 29 October 2022 and SM resides with foster carers who provide her with a high quality of care.

When the application was made, the case was heard in the DOLS list of the High Court and HHJ Barlow was concerned whether this was an appropriate case for a DOLS order and therefore the matter came before Mrs Justice Lieven.

The restrictions the LA sought were:

  • SM is supervised 1:1 in the home at all times either by a physically present person or by remote live only video feed.
  • SM is moved by her carers as appears reasonable or necessary to meet her welfare needs.
  • SM’s feeding and administration of medicine is managed by her carers through her gastrojejeunal button as appears reasonable or necessary to meet her welfare needs.
  • SM is dressed and undressed, washed and her needs arising from her incontinence are managed as appears reasonable or necessary to meet her welfare needs.
  • SM’s bed has bars on the side to prevent her moving while in bed so as to fall and injure herself.
  • SM is supported outside of the home at all times, with up to 2:1 supervision to ensure her safety and ability to mobilise as appears reasonable or necessary to meet her welfare needs.
  • External doors to the property are kept locked for the purpose of ensuring the integrity and security of SM’s home.

As well as the overall issue of whether SM should be subject to a DOLS order at all, the Court felt there were a number of aspects of the requested restrictions which do not amount to a deprivation of liberty. The first 5 were part of her care provision and not actions which deprive SM of her liberty. This would be the case whether or not SM was severely disabled. There are many aspects of care which may intrude on an individual’s privacy and autonomy which may interfere albeit with justification into the scope of Article 8. They are not interferences with the right to liberty enshrined in Article 8.

The Court considered the caselaw around the potential prospective breaches of Article 5 EHCR “right to liberty and security”. The starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects, and manner of implementation of the measure in question, para 89 in HL v United Kingdom [2004] 40 EHRR 32. Stanev v Bulgaria [2012] 55 EHRR 696, the ECtHR at para 115 to 119 made it entirely clear that the fact that someone was voluntarily accepting the relevant restriction, when they did not have capacity did not mean that Article 5 did not apply. The ratio of the case of Cheshire West v P [2014] AC 896, is therefore that for there to be a deprivation of liberty the individual must be under constant supervision and control, and not be free to leave. 

The LA submitted that in relation to SM, she meets the 3 Cheshire West tests because she cannot consent to her own confinement, she is subject to continuous supervision and control, and she is not free to leave.

The Guardian’s position was although not reaching a concluded view, does raise significant questions about whether there was a deprivation of liberty here and questioned whether the consequences of SM’s care and treatment was a deprivation of liberty or rather arising out of her own physical and mental disabilities.

The Court concluded that the LA’s application takes the principles set out in Cheshire West to a logical but extreme conclusion that defies common sense and is not required by the terms of the Supreme Court decision. The question of whether an individual is deprived of their liberty must always involve a fact specific consideration.

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.

Neither party had found a case whether in Strasbourg or the UK where a court had found a deprivation of liberty in circumstances similar or analogous to those of SM.

The reason why SM cannot leave where she is living is down to her profound disabilities not any action of the State by way of restraining her or failing to meet the State’s positive obligations to enable her to leave.

SM is under close supervision and control but not to prevent her leaving but because she is wholly incapable of leaving. On a conceptual level it is difficult to see how one can be deprive of something that one is incapable of doing. Equally, how can one be deprived of a right that one is incapable of exercising by reason of one’s own insuperable inabilities?

The court acknowledged there may be a deprivation of liberty in an example where a disabled person who cannot move without a wheelchair and therefore cannot leave the property without assistance 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. That is the type of situation contemplated in Cheshire West. The Court determined 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.

The Court also found that a discrimination argument does not on the facts of SM’s case progress the analysis.

Full judgment can be found via this link: https://www.bailii.org/ew/cases/EWHC/Fam/2024/493.html