Lieven J puts the (Cheshire West) cat amongst the pigeons
A High Court judge recently refused a local authority’s application for a deprivation of liberty (DoL) order in respect of a 12-year-old girl with “profound and enduring” disabilities. Alex Ruck Keene KC (Hon) analyses the ruling.
Lieven J is proving herself the spiritual successor to Mostyn J as regards challenging Cheshire West. In order to make this assertion good, we need to take a trip back in time. Readers with long-ish memories will recall that Mostyn J took on the Supreme Court decision in full-frontal fashion in Rochdale MBC v KW [2014] EWCOP 45, concerning a woman who was ‘barely ambulant,’ and was thought soon not to have the motor skills to walk even with her frame. At that point, Mostyn J observed (at paragraph 22) that:
If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves. It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not “free to leave”. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.
And then, at paragraph 25:
She is 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.
Mostyn J observed that the definition of deprivation of liberty given in Cheshire West should be reconsidered by the Supreme Court, and sought unsuccessfully to bring about a leapfrog appeal. An appeal against his decision was allowed by consent; Mostyn J then sought to reconsider the question, and, on a further appeal, was firmly told off (to use a legal term) by the Court of Appeal, who made it clear that in endorsing the consent order they were necessarily deciding that KW was deprived of her liberty and that his legal analysis was of no legal effect (see here at paragraphs 18 and 31 respectively).
Now, 10 years later, and just in advance of the 10 year anniversary of Cheshire West, Lieven J has taken another run at a situation involving a person with profound cognitive and physical impairments, although this time a child. Her judgment in Peterborough City Council v Mother (Re SM) [2024] EWHC 493 (Fam) concerned SM, a 12 year old girl with profound and enduring disabilities, who was non-mobile and non-verbal, whose situation was described at paragraph 4 of the judgment thus:
In practical terms SM cannot leave her bed of her own volition, and according to her Mother does not like sitting up. Her only body control is to be able to push her hands away and to wriggle and roll from side to side. She is moved by her carers from the bed to the floor, which according to her Mother she enjoys. She cannot communicate in any form and does not understand language. It is difficult to assess her cognitive functioning, but her Mother described her responding like a child of a few months. She does respond to stimuli, and for those who know her well it is possible to tell whether she is responding positively or negatively. All her care needs are met by carers.
Having been made subject to a final care order, SM lived with foster carers who provided her with what was described as a high quality of care. The local authority applied for an order authorising the deprivation of liberty to which they said she was subject in consequence of the following restrictions:
a. SM is supervised 1:1 in the home at all times either by a physically present person or by remote live only video feed;
b. SM is moved by her carers as appears reasonable or necessary to meet her welfare needs;
c. 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;
d. 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;
e. SM’s bed has bars on the side to prevent her moving while in bed so as to fall and injure herself;
f. 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;
g. External doors to the property are kept locked for the purpose of ensuring the integrity and security of SM’s home.
The case was referred to Lieven J by a circuit judge concerned as to whether was an appropriate case for such an order. SM’s Guardian opposed the making of the order on the basis that it was not necessary.
Lieven J started her analysis at paragraph 8 by observing that:
Quite apart from the overarching issue as to whether SM should be subject to a DoLs order at all, there are a number of aspects of the above restrictions which do not amount to a deprivation of liberty. In my view (a), (b), (c), (d) and (e) are 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. 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].[1]
She also noted at paragraph 10 that such orders had:
become a depressingly common matter in the Family Division of the Family Court. Over the period of 12 months something in the region of 1700 such orders have been made. The exponential growth in these orders has been referred to in numerous cases in the High Court, Court of Appeal and Supreme Court, see Re T (A Child) [2021] UKSC 2136. The enormous expansion of this area of law can be traced to two factors. Firstly, the caselaw, in particular the judgment of the Supreme Court in Cheshire West v P [2014] AC 896; and secondly the severe shortage of places in secure accommodation units, see Re T. The present case does not concern the problem of the shortage of places. It is a product of the decision in Cheshire West and the approach that has been taken to potential prospective breaches of Article 5 European Convention on Human Rights (“ECHR”).
Lieven J then turned to Cheshire West itself, observing that:
24. The ratio of Cheshire West [i.e. what the Supreme Court decided as a matter of law] 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 test that Lord Kerr sets out at [78] that the child should be compared to someone of the same age is not a separate test adopted by the majority of the Supreme Court. The dissenting judgments (Lord Carnwath and Lord Hodge, and Lord Clarke in a separate judgment) largely focused on the need to consider the “concrete situation” and the fact that the individuals had no wish to leave and were living in a “domestic setting”, see [98].
25. It is not straightforward, certainly in the more complex cases, to apply Lord Kerr’s approach in a meaningful manner. Firstly, assuming that one should compare SM with someone of “her age and station” is a difficult exercise with a child. There is no paradigm 12 year old who can be assumed to have a particular level of maturity, and therefore subject to a particular level of restraint and control. Secondly, and more fundamentally, it is a wholly unreal exercise to compare SM with another 12 year old. To the degree that such comparisons are useful, she functions cognitively in a way comparable to a baby of a few months in age and therefore, on the facts, that would be a much more useful comparator. Lord Kerr was simply not addressing the type of facts, and thus the legal issue, that therefore arises in this case.
Lieven J considered that the local authority’s application took the principles set out in Cheshire West:
31. […] 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.
At paragraph 33, Lieven J identified that she considered that it was “axiomatic that [the three individuals] were not free to leave because of some action (or inaction) of the State,” and that the Supreme Court’s decision did 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.” She identified that both Counsel in the case had not found any case either in the UK courts or in Strasburg where a court had not found any case, whether in Strasbourg or the UK Courts, where a court had found a deprivation of liberty in circumstances similar or analogous to those of SM.
Lieven J considered that there were a number of different ways of explaining why SM was not deprived of her liberty, but that they:
35. […] 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.
Lieven J considered that:
36. Fundamental to a breach of Article 5 is a deprivation of liberty attributable to the State, whether by negative or positive action. Often this will involve putting in place restrictions, such as locked doors or windows; or physically restraining the individual. However, the action to prevent someone leaving could be purely verbal or indeed psychological, which often will involve “close supervision and control”. In Cheshire West the facts suggest that there was little physical restraint, but the nature of the supervision was such that the individuals knew they were not allowed to leave and would be prevented if they tried to do so. So simply telling someone that they are not allowed to leave, may be sufficient to amount to a deprivation of liberty.
In response to the emphasis placed by the local authority on the extent to which SM was under supervision and control, Lieven J noted that this was to confuse two things:
37. 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.
Lieven J then emphasised that:
38. 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 ones own insuperable inabilities.
39. In Cheshire West the Supreme Court, particularly in the speeches of Lady Hale and Lord Kerr, were concerned to protect and facilitate the rights of disabled people. 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.
Lieven considered that this was a wholly different situation to that of SM, because she was both physically incapable of exercising her right to liberty, and mentally incapable of asserting it. Returning to Lord Kerr’s focus on the comparison with a child of the same age and station, she identified that it was not quite clear what he meant by this, but that neither Lady Hale nor Lord Neuberger adopted the argument that the comparison must simply be a child of the same age and station, such that “the binding ratio of the case is the test of close supervision and not being free to leave, rather than necessarily comparing SM with a non-disabled 12 year old.” That having been said, “in many, indeed most cases, such a comparison will be very useful, and the approach has been applied in many subsequent cases as an appropriate exercise, never so far I am aware on facts similar to SM’s” (paragraph 40). Lieven J was clear that:
41. As I have said, the approach of comparing SM with a non-disabled 12 year old, as an “objective” analysis, is a wholly unreal exercise, and one that leads to a nonsensical result. Ms Scarborough submitted that not finding SM was deprived of her liberty would involve discriminating against her as a disabled person. To some degree this was the concern of the majority in Cheshire West. The Court emphasised the universal quality of the rights granted by the ECHR, see [36]. This was not however a legal argument of unlawful discrimination under Article 14, as opposed to a general concern to protect the rights and interests of disabled people.
Aware, perhaps, that her approach could be seen as potentially discriminating against those who are physically and mentally incapable of exercising their right to liberty, Lieven J tackled Article 14 ECHR head on, noting that “[i]n order for there to be a breach of Article 14 it is necessary for there to be different treatment between people in a relevantly similar situation for the purposes of the decision or matter in question” (paragraph 42) and that:
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.
Before refusing the application for a DoL order, Lieven J concluded by observing that:
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.
Comment
It is undoubtedly true that it is depressing how many applications are being made for authorisation of deprivation of liberty in relation to children. It is important to note, as did Lieven J, that many of these applications are being made because of the crisis in service provision. That crisis does not just relate to the provision of secure accommodation. As the work of the Nuffield Family Justice Observatory shows, it is also relates to the crisis in both social and health care provision for children with complex needs, with situations escalating in consequence.
SM’s case, however, is very different to the cases covered by the Observatory’s report, and indeed, I anticipate, to the vast majority of those cases involving children being put forward for authorisation, and it is easy to see why the case was referred to Lieven J to determine whether an order authorising deprivation of liberty was required in her case. Her conclusion that one was not required is likely to have considerable resonance with many people – and not, I hasten to add, just because of the potential for reducing the number of deprivation of liberty applications which might need to be made.[2] It is also entirely easy to see that Strasbourg might find SM not to be deprived of her liberty, even if perhaps less easy to work out the principled basis upon which it might do so, given that the only case in which it has previously considered the position of children (Nielsen) is one whose logic is somewhat difficult to disentangle.
Because of the way in which she approached the question before her, however, Lieven J’s judgment perhaps represents the most serious (albeit first instance) challenge to Cheshire West in the 10 years since it was handed down, more serious, even, than the challenges launched by Mostyn J in Rochdale case noted above, and also Bournemouth Borough Council v PS [2015] EWCOP 39, because engages with the judgment in a more sustained and detailed fashion. Whilst it relates to a child, and it is important to emphasise that on its face can only apply to a child given its focus on the ‘comparator’ approach of Lord Kerr, an approach that does not apply to those over 18, its underpinning logic might be thought not to be so limited as Lieven J’s analysis was founded upon a conceptual approach towards the meaning of liberty which is not limited to children.
That conceptual approach to what it means to be deprived of one’s liberty chimes with the extra-judicial observations of District Judge (and Professor) Anselm Eldergill in an article published in 2019 called “Are all incapacitated people confined in a hospital, care home or their own home deprived of liberty?” It might also be thought to be consistent with the underpinning rationale of the Court of Appeal in the Ferreira case which, as expressed by Lady Arden in Re D [2017] UKSC 42 (now as a Supreme Court judge, having sat previously on the Court of Appeal panel hearing Ferreira) that there may be circumstances where the person may lose their liberty but fall outside the scope of Cheshire West because “the loss of liberty is due to the need to provide care for them on an urgent basis because of their serious medical condition, is necessary and unavoidable, and results from circumstances beyond the state’s control” (paragraph 120).[3]
I do not understand that the decision will be appealed, so the appellate courts are not going to be able to pronounce upon her observations or her conclusion. This is particularly unfortunate, because the judgment does give rise to some significant questions that it would be very helpful to have addressed at an appellate level.
The first is in relation to the application of the decision of the Supreme Court in Re D [2019] UKSC 42, not referred to by Lieven J, but in which the Supreme Court expressly considered the position of those under 18 (at least, those aged 16 and 17). In that decision, Lady Hale (for the majority) identified that the crux of the matter was whether the restrictions fell within normal parental control for a child of the relevant age (see paragraph 39), and by reference to Lord Kerr’s analysis in Cheshire West considered that: “[i]t follows that a mentally disabled child who is subject to a level of control beyond that which is normal for a child of his age has been confined within the meaning of article 5” (paragraph 42). Lady Hale was therefore giving a clear comparator: a child of the same age. At that point, the question is whether the restrictions go beyond those which would be considered societally acceptable for a child of that age.[4] If they do, then at least in relation to a child over 16, they fall to be considered as a deprivation of liberty. Lady Black agreed with, and did not add to, the analysis of Lady Hale (see paragraph 90), as did Lady Arden (see paragraph 116). For Article 14 purposes, therefore, it might be said that not treating the disabled child as deprived of their liberty would be to allow unjustified differential treatment in the form of socially unacceptable restrictions being placed upon them that would not be accepted in respect of a non-disabled child of the same age.
One response to the question of the relevance of Re D might be that, whilst Lady Hale in Re D observed that her conclusions would also apply to a child below the age of 16, the other judges (both in the majority and minority) specifically did not address their position. However, when SM turns 16, and given that it is unlikely on the face of the judgment that her position will materially have changed, she will be firmly into Re D territory. Further, Lieven J did not purport to limit her observations about the scope of deprivation of liberty to those under 16. The question of the application of Re D to cases of children below the age of 16 (or, at a minimum, the question of why it should not apply) is therefore a live one. This is perhaps particularly important for the fact that Re D makes clear that each element of the Article 5 “trinity” needs to be considered separately, i.e. confinement, consent and state imputability. Whilst Lieven J expressly addressed the question of confinement, she appeared in effect, also, to link it to SM’s cognitive abilities: a matter which would, for those in the Re D zone, be relevant to consent, not confinement. Does this mean that there is a different approach required altogether for younger children?
The second question that arises in respect of Lieven J’s judgment is as to the applicability of the Court of Appeal’s decision in KW. It might be thought to have been a little surprising that the researches of the Counsel appearing before Lieven J did not identify the decision, given that – as noted above – the case expressly considered the position of a person said not to be “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.” Whilst KW was an adult, and SM a child, the framing is essentially identical.
A third question is as to Lieven J’s observations at paragraph 37 in relation to the supervision and control to which SM was subject. It is entirely understandable that she focused on the issue of whether such supervision and control was directed to preventing SM leaving. Indeed, this was precisely what the Official Solicitor argued in Cheshire West, only to be met with the response from Lady Hale at paragraph 49 that she would not go so far as to agree that “[t]he supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.” So the fact that supervision and control was in SM’s case was not directed specifically at stopping her leaving would not, applying Cheshire West, itself, be determinative.
A fourth question is how the decision sits with that in HL v United Kingdom, in which a central feature of the case before the domestic courts was the assertion that HL (who was autistic and non-verbal) never tried to leave, the judgments giving the strong sense that HL did not appear to have the mental capacity to understand that he could try to. The ECtHR had little truck with the fact that false imprisonment at English common law only arises where the person seeks to leave and is prevented, noting that such a distinction was not of central importance under the ECHR, and that (paragraph 91) “the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements [and that] the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale.‘” In the passage from Cheshire West cited in the paragraph above, and consistent with HL, it can be seen that Lady Hale proceeded on the basis of asking what would happen if the person did express a desire to leave, not on whether they had done so.
I am on record as considering that the Supreme Court did take a wrong turn in Cheshire West, but that, as discussed here, the wrong turn was (in effect) not listening closely enough to P, MIG and MEG to discern whether the arrangements were – to use CRPD language – in line with their will and preferences or otherwise. That wrong turn arose because the Supreme Court assumed, on the basis of the agreed position of the parties before them, that MCA 2005 incapacity to consent to the arrangements meant that they could not give valid consent for purposes of Article 5 ECHR. However, the reversal of that wrong turn would require the Supreme Court to reconsider the matter.
My concern in relation to any attempt to narrow the scope of Cheshire West by reference to the objective test is how to avoid falling into the trap of discriminating against those who are physically incapacitated. Lieven J was undoubtedly alive to this in SM’s case, and her reference (at paragraph 35) to the State’s positive obligations that might be in play to support a person to leave is clearly very important. From the judgment it is clear that she considered that, in effect, there as was (and could be[5]) no evidence that SM would wish to leave; the logical corollary of this is that her conclusions would have been different had she had such evidence. However, it is all too easy to see the judgment being applied to situations where little or no work is done to identify what the person wants. To this end, it is perhaps important to reiterate that, whilst its underlying logic may be thought to apply to those over 16 / over 18, it is a decision which relates to a child of 12.
For all these reasons, it will be very unfortunate if there is no appeal, such that the questions will remain to be resolved – but hopefully before SM reaches the age of 16 so that those responsible for her at that point know what they should be doing in her case.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
[1] The judgment says Article 8, but from context clearly means Article 5.
[2] Although the reality is that cases such as SM’s case are likely to be so far down the priority / triage list for local authorities working with children with complex needs that it is on one view quite surprising that the council in this case in fact even considered making an application.
[3] However, it is important to note that the Court of Appeal in Ferreira found that they were not bound by Cheshire West because that case concerned living arrangements, whereas Ferreira concerned immediately necessary life-saving physical health treatment: see paragraph 91. SM’s case undoubtedly concerns living arrangements.
[4] See also in this regard Sir James Munby’s ‘rule of thumb’ at paragraph 43 of Re A-F (Children) [2018] EWHC 138 (Fam) that “(i) a child aged 10, even if under pretty constant supervision, is unlikely to be “confined” for the purpose of Storck component (a); (ii) a child aged 11, if under constant supervision, may, in contrast be so “confined”, though the court should be astute to avoid coming too readily to such a conclusion; and (iii) once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion,” although “all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr.” As noted above, the ‘wiggle room’ in terms of the attributes of the comparator has been significantly reduced by Re D, handed down subsequently.
[5] Although I note that SM is described as being unable to communicate, it is also possible to identify that she responds positively or negatively to stimuli. Likewise, it is clear from all that is known about HL that he hated being in Bournewood Hospital.
