Judge hits out at Court of Appeal over consent order in deprivation of liberty case

A High Court judge has accused the Court of Appeal of apparently taking a “procedurally impermissible route” and making a consent order that was ultra vires, in legal proceedings over whether a woman looked after at home had been deprived of her liberty.

Mr Justice Mostyn made his comments in Rochdale Metropolitan Borough Council v KW & Ors (Rev 1) [2015] EWCOP 13 (13 March 2015), a ruling he handed down last week.

The background to the case was the High Court judge’s ruling last November in Rochdale Metropolitan Borough Council v KW & Ors (Rev 1) [2014] EWCOP 45, in which he called on the Supreme Court to reconsider the approach laid down in Cheshire West on deprivations of liberty in the home.

Counsel for a 52-year-old, severely incapacitated woman (Katherine/KW) had considered that – having regard to the majority decision of the Supreme Court in Cheshire West and MiG and MeG cases – she had been deprived of her liberty. The barrister for Rochdale Council was said to have been “constrained to concur”.

However, Mr Justice Mostyn concluded that in the circumstances the second part of the ‘acid test’ set out by the Supreme Court had not been satisfied and that Katherine had not been deprived of her liberty.

He said: “I find it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5.”

Mr Justice Mostyn added: “If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.”

The judge also said he was of the view that “for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged."

Mr Justice Mostyn had expressed the view in his first ruling that the case should leapfrog to the Supreme Court for reconsideration. However, Rochdale refused to give the necessary consent. The judge therefore granted KW permission to appeal to the Court of Appeal.

An appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against Mr Justice Mostyn’s ruling by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4.

Attached to the order was a piece of narrative from KW’s counsel which said the reason for inviting the Court of Appeal to allow the appeal by consent was that Mr Justice Mostyn had erred in holding that there was not a deprivation of liberty.

“He was bound by the decision of the Supreme Court in…[Cheshire West] to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave,” the narrative said.

“It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own."

Shortly after the making of the consent order Mr Justice Mostyn directed that a further hearing should take place for “directions as to the scope of (and reasons for) the additional obligations imposed on this court by virtue of the consent order made by the Court of Appeal on 30 January 2015”. He also directed that the case should be reserved to him.

In his latest judgment the High Court judge analysed CPR 52.11(3) and CPR PD52A para 6.4 in relation to the allowing of unopposed appeals or applications on paper.

He argued that the relevant wording meant “this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits” [the judge’s emphasis].

Mr Justice Mostyn said he could see the need for this provision. “Following the first instance decision there may have been a change in the law deriving from legislation or a binding decision of a higher court. In such a case it would be necessary to set aside the original decision without a determination on the merits. Similarly, a procedural order may require to be set aside without a determination on the merits because of a change of circumstances or a mistake.”

However he added that it was “impossible to see….. how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement of legal principle in relation to the facts as found”. [the judge’s emphasis again]

Mr Justice Mostyn said his limited researches in the field of family law revealed that where a merits based decision had been reached at first instance, which all parties agreed should be set aside on appeal, then there was a hearing and a judgment.

“This is consistent with the only reasonable interpretation of para 6.4,” he said. “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise.”

The judge said researches of counsel in KW, undertaken after argument was concluded before him but before he handed down his judgment, had not revealed any case where a fully reasoned decision had been overturned on the merits by consent and without a judgment. “This is not surprising,” he suggested.

Mr Justice Mostyn noted that in the case the appeal was against paragraph 6 of his order, which reflected the terms of his judgment, that the package of care provided to Katherine did not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights.

“That was the centrally, if not the only, relevant component of my judgment,” he said. “It was its very ratio decidendi. By para 1 of the Court of Appeal order the appeal is allowed. That is plainly a determination on the merits. It could not be anything else. But such a determination on the merits does not fall within para 6.4.”

If this determination did not fall within paragraph 6.4 then there had to be a judgment explaining why his decision was wrong (no-one had suggested that it was procedurally unjust), he said.

“But there is no judgment. [Counsel for KW] agrees that the annex to the order is not a judgment. So I do not know why my jurisprudential analysis in this case as augmented in the Tower Hamlets case is said to be wrong. The narrative in the annex does not say anything other than that I was wrong, aside from a mere assertion that I made a material error as to Katherine's downward path in terms of her mobility, which.....was immaterial to my decision.”

The judge then referred to paragraph 6.5 of PD52A (disposal of applications and appeals involving children or protected parties), which requires an opinion from the advocate acting on behalf of the child or protected party to be attached to the draft order signed by the parties’ solicitors.

“I have not been told of the existence of an opinion of the advocate acting for KW,” he said. “Had there been one it may well have enlightened me about my supposed error. If one does not exist, as I infer, then that is another reason why the consent order made by the Court of Appeal was procedurally flawed.”

Mr Justice Mostyn said: “Even though the Court of Appeal appears to have taken a procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellate courts. And so I must here, even if I happen to think that the order of the Court of Appeal is ultra vires.”

The allowing of the appeal should be construed as setting aside paragraph 6 of his order, even if it did not actually say so, he said.

“But does the order replace it with a declaration that Katherine is being deprived of her liberty?” he asked.

“It does not explicitly say so, which is highly surprising. Further, para 2 of the order is phrased in highly ambiguous language. It says ‘to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW's liberty, such deprivation of KW's liberty is hereby authorised’.”

The judge said the use of this conditional language suggested to him that the Court of Appeal had not actually decided that this was a situation of state detention.

“What they are saying that if it is then it is authorised. In my judgment para 2 of the order does not amount to a declaration that Katherine is being deprived of her liberty.” [the judge's emphasis]

Mr Justice Mostyn added: “It therefore seems to me that we are back to square one with no-one knowing whether Katherine is, or is not, being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order.”

The judge directed that any review hearing would be conducted by him at an oral hearing and on the basis of full fresh evidence concerning Katherine's circumstances. “Until then Katherine's status must be regarded as being in limbo,” he said.

His finding was that the hearing ordered by paragraph 5 of the Court of Appeal order was not a review of a determined situation of state detention but was, rather, a hearing de novo to determine if one existed.

“Further, it is my ruling that a hearing under paras 3 or 4 can only be triggered if the restrictive changes proposed amount to bodily restraint comparable to that which obtained in P v Cheshire West and Chester Council,” he said.

“Any restrictions short of that will amount to no more than arrangements for her care in her own home and would not, consistently with my previous judgments, amount to state detention. Therefore, in such circumstances there would be nothing to review under paras 3 and 4.”

Mr Justice Mostyn said that in the absence of a reasoned judgment from the Court of Appeal explaining why he was wrong, he maintained firmly the correctness of his jurisprudential analysis in his principal decision as augmented in his Tower Hamlets decision.

He concluded: “In this difficult and sensitive area, where people are being looked after in their own homes at the state's expense, the law is now in a state of serious confusion.”