High Court judge refuses application by council for deprivation of liberty order in case of severely disabled child

The High Court has rejected 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.

In SM (Deprivation of Liberty; Severely Disabled Child), Re [2024] EWHC 493 (Fam), Mrs Justice Lieven found that the test for whether there is a deprivation of liberty adopted by the Supreme Court in 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”.

SM was diagnosed with Lissencephaly at 5 months old. She also has epilepsy, global development delay and scoliosis. She is non-mobile and non-verbal and she is fed via a gastrojejunal button.

“In practical terms SM cannot leave her bed of her own volition. […] She cannot communicate in any form and does not understand language,” Mrs Justice Lieven said.

SM was made subject to a final care order on 29 October 2022, and lives with foster carers who provide her with a high quality of care.

The local authority applied for a DoLs order, which sought 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.

Mrs Justice Lieven observed: “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.”

The High Court judge noted that the ratio of Cheshire West was that for there to be a deprivation of liberty, the individual must be under constant supervision and control, and not be free to leave.

Counsel for the local authority submitted that SM met the 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”.

In her oral submissions, counsel had emphasised the importance of not discriminating against disabled people by applying different standards to them in relation to the rest of the population.

She asserted that the “level of disability” was not relevant to whether there was a deprivation of liberty. The fact that SM had no volition, or free will, was irrelevant to the legal issue. Her foster carers were acting as agents of the state and were exercising control over her physical liberty.

Mrs Justice Lieven said: “This is a case where the [local authority'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.”

She added: “[…] 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.”

Counsel for the local authority referred to the fact that SM was under constant supervision, and virtually all physical movements were controlled by her carers.

The judge noted that although SM was “undoubtedly” under close supervision and control, that was not in order to prevent her leaving.

She said: “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.”

The judge added: “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.”

The judge said that the Supreme Court in Cheshire West had been 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.”

However, Mrs Justice Lieven said, that was 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 High Court judge noted again that the binding ratio of Cheshire West was that for there to be a deprivation of liberty, the individual must be under constant supervision and control, and not be free to leave, rather than necessarily comparing SM with a non-disabled 12 year old.

Mrs Justice Lieven 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.

“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.”

The judge suggested that the able-bodied 12 year old was “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 [ECHR] 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.”

In her final remarks, Mrs Justice Lieven observed: “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.”

The judge concluded there was no deprivation of SM’s liberty within the meaning of Article 5 ECHR and refused the council's application.