Judge finds provisions of Care Act and MCA to be “adequate protections” in case involving twin sisters with disabilities

In PK & MK (Article 8 Protections), Re [2026] EWCOP 52 (T2), His Honour Judge Burrows, sitting as a nominated judge of the Court of Protection at Tier 2, said: “The existence of an independent advocate may be of significance. As the Court of Appeal emphasised in TDB v London Borough of Haringey [2026] EWCA Civ 1184, participation, support and independent advocacy form important components of the statutory protection afforded to vulnerable adults under the Care Act 2014.

“Whilst I do not accept that Article 8 invariably requires independent review by the Court, the absence of independent advocacy may, depending on the circumstances, weaken the practical protection otherwise available.”

The case concerned twin sisters, PK and MK. Both have significant disabilities and require extensive packages of care.

The judge noted: “Their incapacity, at least in so far as the Mental Capacity Act 2005 (MCA) is concerned, is uncontroversial. They both lack capacity to make all decisions relevant to these proceedings.”

The sisters moved to placement N in April 2026. Prior to that, they had lived together in a children’s home.

At that stage, the court authorised their deprivation of liberty, as their circumstances were under the test in Cheshire West.

Burrows HJ said: “The care arrangements for PK include one-to-one supervision within the placement, two-to-one support in the community and during bathing, movement sensors for seizure monitoring, window restrictors, locks on external doors and certain internal storage areas, child-lock mechanisms during transport, and an inability to leave the placement independently. The evidence also establishes continuing supervision directed towards seizure management and safety. The evidence suggests that materially similar environmental and supervisory arrangements apply to MK within the shared placement.”

The local authority and the Official Solicitor in respect of both sisters stated that they were both not deprived of their liberty in accordance with the Northern Ireland case [A Reference by the Attorney General for Northern Ireland of a Devolution Issue under Paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16].

Burrows HJ said: “I agree. There is no doubt that the setting in which PK and MK live is some way from the paradigm place of detention identified by the Supreme Court. It is a place in which both young women are as at home as could be possible for people with their needs and disabilities.

“[…] PK and MK are not deprived of their liberty. Article 5 does not apply. That means they do not have automatic reviews by a Court or tribunal.”

In light of this, counsel for PK argued that her client’s Article 8 protections were “particularly significant” because although she is subjected to considerable restrictions, her Article 5 protections have fallen away.

Consequently, she submitted it would be “essential” for an advocate to be appointed for her and to remain in contact with her periodically to review the effect of the measures upon her and her tacit consent to them.

Counsel for MK placed greater emphasis on the need for “independent scrutiny” of the continuing restrictions now that Article 5 had fallen away.

She argued that once Article 5 is no longer engaged, there remains a risk that significant restrictions on private life will continue without sufficient independent scrutiny.

Article 8 therefore requires a mechanism capable of reviewing the continuing necessity and proportionality of those restrictions. The court should be slow simply to withdraw from the case without being satisfied that such a mechanism exists.

The questions that the judge had to consider were therefore as follows:

1. Where Article 5 is not engaged, Article 8 is and the proceedings are at an end, because there is no further decision for the Court of Protection to make, should it look to ensure that P’s rights continue to be protected through the Court process?
2. If so, is that the approach the Court needs to take in this case, or are there other methods by which PK and MK’s Article 8 rights are protected?
3. What should the Court do?

Outlining relevant caselaw, His Honour Judge Burrows said: “In Nikolyan v Armenia, the ECtHR found a violation of Article 8 where a man had been wholly deprived of legal capacity under a rigid statutory scheme that provided only a binary choice between full capacity and complete incapacity. The Court criticised the absence of any tailored or intermediate measures, the failure to analyse the degree of the applicant’s impairment in sufficient detail, reliance upon an outdated psychiatric assessment, and the lack of adequate mechanisms for review and safeguarding against conflicts of interest. The Court emphasised that measures affecting legal capacity and personal autonomy must be proportionate, individualised, supported by effective safeguards, and subject to regular review by a competent authority.

“In my judgment, however, the relevance of that case to PK and MK is limited. Unlike the position in Armenia, these proceedings do not concern the wholesale removal of legal capacity, nor a statutory regime lacking review mechanisms or safeguards. Rather, PK and MK are protected by the integrated framework of the MCA and the Care Act 2014, including duties of wellbeing, participation, care planning, review, safeguarding and independent advocacy. To that extent, the concerns identified in Nikolyan are largely addressed by the domestic statutory protections available to them.”

Turning to the facts of the case, the judge found the provisions of the Care Act and the MCA were “adequate protections” in the case.

He said: “The situation will likely be different in other cases. In AR, for instance, there was an issue, present at the time of the final hearing that concerned the Court, namely the position of AR’s parents towards those managing his welfare and their (the parents’) role in his life. The LA there ensured there would be an independent advocate at least for the first year. That may continue. But that is a matter for the Care Act jurisdiction, it seems, and not this Court.

“In this case, there is no doubt that the provisions of the Care Act and MCA apply. It seems to me a Care Advocate will be needed in this case if their mother either does not wish to perform that role, is unsuitable to do so, or (and this seems unlikely) where PK and/or MK do not wish her to perform that role.

“As I understand it MK has a Care Act advocate. In PK’s case it is less clear. Both need one, it seems to me.”

His Honour Judge Burrows added: “At the time I completed my draft judgment, I was not persuaded that a further review hearing was required. However, before reaching a final determination on that question, I wished to be satisfied that the practical and effective safeguards upon which I rely are actually in place.

“I therefore said this. The existence of an independent advocate may be of significance. As the Court of Appeal emphasised in TDB v London Borough of Haringey [2026] EWCA Civ 1184, participation, support and independent advocacy form important components of the statutory protection afforded to vulnerable adults under the Care Act 2014. Whilst I do not accept that Article 8 invariably requires independent review by the Court, the absence of independent advocacy may, depending on the circumstances, weaken the practical protection otherwise available.

“I therefore required clarification of the advocacy arrangements before deciding whether the existing framework provided sufficiently effective safeguards for the Article 8 rights of PK and MK.”

He continued: “When the draft was returned with corrections and clarification requested the Local Authority confirmed that both young women had been referred to Care Act advocacy. At my request, it was agreed that the Local Authority should refer the matter back to the Court in the event that no such advocacy was to materialise.

“I am content with that outcome. These proceedings can come to an end.”

Lottie Winson