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Magical sparkle powers – a sparkle too far?

Regular readers will know that when I read the phrase “The Court’s powers under the inherent jurisdiction are theoretically limitless” it makes me bristle, and hence my coining the name “magical sparkle powers” for the use of these, to remind ourselves that the Court is effectively inventing powers for itself out of thin air.

As is established law, Princess Kenny MAY use her magical sparkle powers to get the Black Friday Bundaroo

The problem I have with it is not that the Court have used the inherent jurisdiction as a way to solve a particularly thorny legal problem on an individual case, it is that this then gets used as an authority for “well, we could do THAT with our magical sparkle powers, so THIS is only a further stride along that path” and then THIS gets used as authority for taking another stride to THE OTHER. It is the stepping stone issue.

So a while back, the President ruled that the inherent jurisdiction could be extended to protect vulnerable adults, and then someone else ruled that his decision was authority for protecting adults with vulnerabilities, and then someone else ruled that THAT decision was authority for protecting adults who didn’t seem to have any vulnerabilities but whom the Court wanted to protect

And then we end up with this
http://www.bailii.org/ew/cases/EWFC/HCJ/2017/65.html

Mahzar v Lord Chancellor 2017

Mr Mazar is a 26 year old man with muscular dystrophy. He has no mental health problems and he has capacity. Part of his physical illness is that he needs apparatus to breath through, and this apparatus needs to be suctioned four to five times every hour. Without this, he could be at risk of serious injury or death. Mr Mazar wanted to be in his own home for this procedure rather than be detained in hospital – he says that his family members have had training in the procedure. That may be contentious – I don’t know whether th

I don’t know the ins and outs of why Mr Mazar came to that conclusion, but we don’t NEED to know. If he is an adult, with capacity to make his own decisions and does not have a mental health disorder, he is entitled to say that he does not want to be admitted to hospital. That’s his right. He is entitled to say that even if all of the medical opinion is that this is dangerous and stupid. Even if it might lead to his death.

What actually happened was that the Trust applied to the High Court for permission under the inherent jurisdiction to not only treat him against his will, but for police officers to enter his home and remove him by force if necessary to take him to hospital.

2. The order complained of is as follows:

“(I) It is lawful for the police and any medical professionals, as are required, to enter [address] (the property) and use reasonable and proportionate force to do so.

(2) It is lawful for the police and any medical professionals, as are required, to remove Mr Aamir Mazhar from the property and to convey him to an ambulance.

(3) It is lawful for the ambulance service, together with any other medical professionals and police as are required, to convey Mr Aamir Mazhar to the Queen Elizabeth Hospital, Birmingham.

(4) It is lawful until further order for Mr Aamir Mazhar to be deprived of his liberty at the Queen Elizabeth Hospital, Birmingham for the purposes of receiving care and treatment from his arrival on 22 April 2016 and then to be conveyed to the specialist respiratory centre at Guy’s Hospital, London until suitable care can be put in place for him at home, or to be transferred to an alternative specialist respiratory unit.

(5) The matter shall be listed for urgent hearing on the first available date after 25 April 2016 (upon application to the Clerk Rules (sic)).

(6) There be leave to serve this order without a Court seal until 16:00 on Monday 25th April 2016.”

It was an out of hours application, without any notice to Mr Mazhar or his family and they were therefore not present or represented at the hearing.

The pleaded consequence of the order made by Mostyn J is the forcible and what is described as the highly distressing removal of Mr Mazhar from his family home at 3 am on Saturday 23 April 2016 by two police officers and the ambulance service. Mr Mazhar was and is a young man who has the capacity to make decisions for himself. It is submitted on his behalf that there was no basis in law for the order to be made or for the actions taken in accordance with it.

7. Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person’s alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law.

Mr Mazhar sought damages against the Trust, who settled out of Court. He also made a Human Rights Act claim against the Lord Chancellor for breach of article 5 (that he was unlawfully deprived of his liberty), article 8 (that his right to private and family life was breached) and article 6 (that such a fundamental decision was taken without any challenge to the application being made.

The Lord Chancellor concedes that Mr Mazhar was deprived of his liberty when he was removed from his home and taken to hospital and accepts that he was not a person of unsound mind within the meaning of article 5(1)(e) at the date of the order. He does not however accept that the broader proposition that the inherent jurisdiction is limited in the way suggested on behalf of Mr Mazhar and in particular that it can only be used to facilitate the re-establishment of autonomy. He argues that its use to detain and remove a person who has mental capacity to make decisions about his care (but who is a vulnerable adult) to a safe place such as a hospital is a well recognised jurisdiction which acts as a safety net to protect persons who fall outside the scope of the Mental Capacity Act 2005. He contends that use of the jurisdiction to detain is neither arbitrary nor unlawful because there are procedural safeguards ie it is a procedure prescribed by law, governed by Rules of Court, Practice Directions and Guidance. It is clearly established by case law which is sufficiently accessible and foreseeable with advice and the jurisdiction’s flexibility is reasoned and justified so that, for example, where detention is permitted there are rigorous safeguards that include regular review.

9. The Lord Chancellor does not accept that there were procedural failings such that the detention was unlawful within the meaning of article 5 of the Convention or unfair at common law. He avers that in any event the threshold of ‘gross and obvious irregularity’ is not met. The procedural protections for anyone deprived of their liberty are the lex specialis of article 5(4) and provide equivalent protection to article 6 which the Lord Chancellor submits is not engaged. Any breach of article 8, which is not admitted, is justified by being in accordance with the law, necessary and proportionate.

So who is right?

It is a really important point. As the High Court repeatedly says – the powers under the inherent jurisdiction are theoretically limitless – so on the face of it Mostyn J had the power to make that order, even though Mr Mazhar was of sound mind and had capacity to make his own decision.

Is that really right?

If the law is going to authorise police officers to come into your home and remove you by force and take you to hospital and detain you there while you have treatment that you have not consented to, that seems to me rather a big deal – particularly as there’s no clarity at all about what hurdles the Trust ought to have to meet to establish that – if Mr Mazhar lacked capacity there would be a statutory framework as to what the Court would need to consider and a mechanism for challenge.

So I was reading this case with great interest to see what was decided about whether or not the inherent jurisdiction really does give Mostyn J or other Judges the power to make such a dramatic order – without Mr Mazhar even being told about it in advance and having the opportunity to have his say.

The order was made on a specific evidential basis which was recorded in the recitals to the order. It is important to acknowledge that this prima facie evidential basis was the evidence, at that stage unchallenged because the application was made without notice, which the judge had available to him and which he decided was sufficient to lead to the order that he made. It is part of Mr Mazhar’s claim against the Lord Chancellor that the judge should not have accepted the evidence without an opportunity being given at that stage for challenge and, in any event, that it was insufficient in law to justify the order made. It is also important to acknowledge that some of the evidence provided to the judge was wrong and may have been untruthful. The difference between the recorded prima facie evidence and the agreed facts is stark. The claim against the NHS Trust which deals with those issues has been settled and it is not for this court to give judgment on the failings of the NHS Trust. Some of those failings are however apparent in the differences revealed between the recitals and the agreed facts. The implications are very worrying indeed.

Sadly, the Court doesn’t answer that at all. Instead we get reams of paragraphs about why the challenge to the order of the High Court can’t be by HRA claim or claim for vicarious liability on the part of the Lord Chancellor, and judicial immunity, and this is all absolutely right, but still very frustrating.

43. Lord Denning MR described the principle of judicial immunity in Sirros v Moore [1975] QB 118 at 132D:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the excess of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred or malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to the Court of Appeal or to apply for habeas corpus or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action in damages. The reason is not because the judge has any privilege to make mistakes or do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well state by Lord Tenterden CJ in Garnett v Ferrand (1867) 6 B&C 611 625:

“This freedom from action or question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be”

All of this is particularly frustrating, because the Lord Chancellor had in June submitted a position statement to the effect that judicial immunity was not going to be relied upon as a defence, and then rescinded that and relied on it successfully

If Mr Mazhar wants to find out whether Mostyn J really did have the power to make that order under the inherent jurisdiction, his mechanism is an appeal of the order, not a HRA claim.

Conclusion:

78. The consequence is that I have come to the conclusion that there is nothing in the HRA (taken together with either the CPR or the FPR) that provides a power in a court or tribunal to make a declaration against the Crown in respect of a judicial act. Furthermore, the HRA has not modified the constitutional principle of judicial immunity. Likewise, the Crown is not to be held to vicariously liable for the acts of the judiciary with the consequence that the claim for a declaration is not justiciable in the Courts of England and Wales. A claim for damages against the Crown is available to Mr Mazhar for the limited purpose of compensating him for an article 5(5) breach but the forum for such a claim where the judicial act is that of a judge of the High Court cannot be a court of co-ordinate jurisdiction. On the facts of this case, the only court that can consider a damages claim is the Court of Appeal.

79. If Mr Mazhar wants to pursue his challenge to the order of Mostyn J he must do so on appeal

Annoyingly, Mr Mazhar gave evidence at the hearing, when the case turned completely on legal argument rather than his evidence, so it was unfortunate that he was put through the experience of giving evidence when the judicial immunity point was the real heart of the case.

I hope that he does want to find out and that an appeal will be brought.

That’s not to say that I think Mostyn J got this spectacularly wrong or was off on a frolic of his own – this sort of application and this sort of order is a natural extension of where the legal authorities on inherent jurisdiction are eventually going to take us. I’d be very keen to find out if the Court of Appeal think that there IS a line in the sand that needs to be drawn on inherent jurisdiction and where that line might be.

I don’t think that the law SHOULD have allowed Mr Mazhar to have police officers enter his home and remove him by force and detain him in hospital for treatment that he had a right to refuse. But I think that the law MAY say that this is within the Court’s jurisdiction and powers. I hope that even then, the Court of Appeal may have something to say about the safeguards that ought to be put in place about how such wide-ranging and sweeping powers need to be managed to respect a person’s article 5, 6 and 8 rights.

If police came to my door, forced entry and removed me from my home to hospital for treatment that I’d said I didn’t want, just because doctors thought my decision was stupid and went before a Judge on their own without putting my side of the story, I wouldn’t be satisfied to be told that the Court’s magical sparkle powers make all of this okay. It isn’t okay.

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Tag, you’re it

A follow-up from last week’s case involving a decision that children whose parents were suspected of intending/attempting to take them to Syria to a war zone should be at home with the parents, with the parents being electronically tagged to prevent a recurrance.

 

You may remember that during that piece, I expressed some reservations about how the scheme would operate and who would pay for it.

 

Well, part two of

 

X and Y (children) No 2  2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2358.html

 

raises that particular question and then doesn’t answer it.

 

The answer is, that in THIS PARTICULAR CASE but not other future ones, the Ministry of Justice agree to pay.

  1. By the time the matter came on for hearing before me on 3 August 2015, Mr Alex Ustych, on behalf of MoJ, was able to tell me on instructions that it would take approximately a fortnight to put all the arrangements in place for GPS tagging. He was also able to say that, having considered its position further since filing its submissions, MoJ was willing, if I took the view that there should be GPS tagging, to meet the cost in this case without having recourse to any of the parties for any payment.
  2. That, as he made clear, was entirely without prejudice to MoJ’s position as I have summarised it in paragraph 2 above, and is not to be treated as a precedent in any future case. In particular, the fact that MoJ is willing in this case to agree to meet the cost does not mark any departure from its fundamental position that the court has no power to order MoJ or NOMS (or, I assume, EMS) to bear the cost of providing GPS tagging.

 

You may have picked up the not comforting crumb that it will take a fortnight to get the tagging sorted out.

So what about future cases?  Well, it seems fairly plain that the MOJ would at the very least want to have an argument about it, and as we learned from the Court of Appeal decision about whether the President’s suggestion that the MOJ/HMCS should pay for costs of a litigant where article 6 would be breached  (no statutory power, so no thanks)  they might well win there.

 

Can the costs be split between the parties?  Well, if you were a solicitor for the parents or child, there’s no way on Earth that you are writing that cheque without the Legal Aid Agency agreeing. And I am certain that they won’t.  Putting a tag on a parent can in no way be construed as an assessment of the parent. What are you assessing? Whether they will run away if there is an electronic device that prevents them from doing so?

 

If you want an expert to assess that, I am available to conduct the assessment.  It will be a very fast turnaround, and my report will consist of the words, “No, they won’t. I don’t know what they will do when you take the tags off”

So, that leaves the good old Local Authority.   Well, what’s sauce for the MOJ goose is sauce for the gander too.  Please find me the statutory power that allows the Court to order the Local Authority to pay for electronic tagging.  I don’t mind waiting.

 

I’m afraid that the very next Local Authority who have to go to Court because children in their area have been involved in an attempt to take them to Syria are going to have to go through this entire argument all over again.

 

And I will add in another argument – it is still really unclear what would happen if one or both of the parents does not consent – is there a proper statutory basis for an interference with their article 5 rights?  It is probably easier if both refuse, because then the children just can’t be placed with them, but if one says yes and the other says no? tricky.

 

If you WANT to enter into this arrangement, the President does set out a very useful template order.

Bodey and DoLs

Mr Justice Bodey, sitting in the High Court dealt with a case involving a 93 year old woman with severe dementia, and had to resolve whether the protective mechanisms that had been put in place by the Local Authority amounted to a deprivation of liberty (or DoLs).  And if so, whether the Court would authorise those.

 

W City Council v Mrs L  2015

http://www.bailii.org/ew/cases/EWCOP/2015/20.html

 

This might have wider implications, because the Court were being asked specifically about two issues :-

 

1. The deprivation was in the woman’s own home, rather than in accommodation provided by the State.

2. The woman herself was not objecting to the restrictions, or kicking against them.

Unusually here, it was the LA who were saying to the Court that their actions amounted to a deprivation of liberty, and the family were saying that it wasn’t.

Here’s what the restrictions amounted to:-

  1. As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, but became disorientated and wandered away from her home very unsuitably clothed into the local town. She was returned home by the Police or Social Services. This event led to the involvement of the Local Authority.
  2. At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.
  3. The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.
  4. Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.
  5. The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

 

This is a good illustration of how unsatisfactory things are at present with DoLs.  On those facts, my gut feeling would be that it ISN’T an article 5 deprivation of libery. BUT, given that if you get this wrong, compensation is payable to the person being deprived of their liberty (and at least one Judge has ordered that that is on a daily rate), would I be sure? Or even fairly sure? I can absolutely see why this LA wanted to make the application and have a Judge decide.

 

Mr Justice Bodey sets out the law very well (this would be a good “go-to” judgment for these issues)

 

On the two key issues in the case, Bodey J said that both were relevant factors in weighing up whether the restrictions amounted to a deprivation of liberty, but neither of them were determinative (i.e a person CAN be deprived of liberty in their own home and a person CAN be deprived of their liberty even if they seem perfectly happy about it, but whether or not they ARE being deprived of their liberty depends on the facts of the case)

 

23. ..it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

  1. The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.
  2. This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.
  3. I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into place as being in her best interests, even though involving restrictions. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carer’s visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.
  4. This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
  5. In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.

 

 

Even Professionals can find it difficult to know if a person is being deprived of their liberty…

Even Professionals can find Deprivation of Liberty confusing

A whole heap of trouble (secure accommodation)

You don’t often get secure accommodation judgments published, largely because they are usually decided by Justices rather than Judges so don’t fall into the publication scheme, but this one was decided by Mr Justice Hayden and throws up some interesting philosophical issues.

London Borough of Barking and Dagenham 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4436.html

 

There’s an exercise in philosophy where one starts putting individual pebbles on a table. You add one at a time, every few seconds. At some point, what you have is a heap or a pile of pebbles. But if you are adding them one at a time, it is difficult to see the point at which you go from “non-heap” to “heap”.  Equally, once you have a heap of pebbles and start removing one at a time, finding that precise point at which you’ve removed the pebble that turns it from “heap” to “non-heap” happens.  Obviously we can all agree that 3 pebbles aren’t a heap, and that 300 are, but where that precise boundary line happens is much more fuzzy.

 

In this case, the heap issue arises in part on the legal test for making a Secure Accommodation Order (which, lets not forget, is an order that allows a family Court to sanction a child being locked up not as punishment for a criminal offence but for their own good)

“Use of accommodation for restricting liberty

(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (‘secure accommodation’) unless it appears –

(a) that –

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”

 

They are alternate tests – either (a) OR (b),  you don’t have to satisfy both  (though in many such applications, both limbs are satisfied).

Now, for ground (a) it all flows from “has a history of absconding”, so how many incidents of absconding amount to a history. One incident isn’t a history, fifty clear is. But at what point do the number of incidents crystallise into a “history”

For the purposes of this application, I find that SS has absconded on two occasions. I doubt whether that can truly be said to be a history of absconding and it is, as I said, significant that, on the second occasion, it was she who sought to return to the foster carer. I am, however, entirely satisfied that she is likely to abscond in the future, if not in secure accommodation, in the sense that there is a real possibility of her absconding. I am absolutely sure that she is at risk of significant emotional and/or physical harm were she to do so.

This was one of those cases where the child was the victim of Child Sexual Exploitation by unsavoury adults, but because of the difficulty in prosecuting such adults for their criminal behaviour, the child is locked up instead, a state of affairs which post the Rochdale child grooming debacle, is happening more and more.

  1. It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No.2) Regulations 1991. The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the ‘unconventional’, i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young persons spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution.
  2. The courts have seen a number of cases in recent years where vulnerable young girls have been exploited in a variety of ways by groups of predatory men. That so many of these men escape prosecution and continue to enjoy their liberty whilst the young girls they exploit are locked up (for their own protection) sends very confusing messages to the girls themselves, to the distorted minds of the men who prey on them and to society more generally.
  3. I have heard something of the regime the unit in which SS has been resident. I have no reason to believe that it is any different to any other of the welfare-based units. I equally have no doubt that those who run and work in them and the variety of disciplines which support such units are all highly motivated to help. There will be circumstances where young people have to be incarcerated to protect them, ultimately, from themselves.
  4. That said, I heard that this unit has what is referred to as an “air-locked security system”; that is to say that only one room can be left open at any stage. There is no computer access. There is a reward system by which privileges are both earned, and taken away. It is difficult not to see, from the eyes of the young people concerned, a custodial complexion to this environment. It has the most profound disadvantage in the case of SS in that it must surely reinforce her own already overactive sense of having done wrong.
  5. I do not criticise the structure or regime of this, or, indeed the other units. I recognise, as I have already stated, that they have a place in the panoply of strategies required to safeguard vulnerable children, but I was not satisfied that such a regime was a proportionate interference in SS’s life and so, to investigate it further, I asked Ms. Lewis, counsel on behalf of the Local Authority, whether she could contact senior officials within the unit so that I could have some closer idea both of the nature of the regime in operation and the philosophy which underpins it. At very short notice, the deputy principal was able to make herself available. She told me that, for young women in the situation of SS, such units could only really try and achieve one objective and that was to keep the young people concerned safe in a time of crisis “only long enough to find them somewhere more suitable”. That seems to me to crystallise the very limited scope of this provision.

 

There’s a peculiar wrinkle with the law on Secure Accommodation, which I was always surprised survived the Human Rights Act but still stands. It is this – unlike any other order in the Children Act which is subject to the “no order” principle and the “welfare paramountcy” principle, orders under s25 are MANDATORY if the Court find that the criteria are made out.

The role of the Court on secure accommodation applications is not, as with any other Children Act application, to decide on both the facts and what to do with those facts for the child’s best interests, but to simply decide whether factually the grounds for the order are made out, and if so  to make the order.

The provision goes on, at subsection (3), to provide that:

“It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied (inaudible)”

And (4):

“If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.”

 

This doesn’t always sit entirely comfortably with the suggestions and recommendations that a Secure Accommodation Order ought to be a last resort.

 

What is a Court to do where it considers that the s25 threshold is met, but that the making of a Secure Accommodation Order is not proportionate? (It surely HAS to consider whether it is proportionate, because it is an article 8 interference with the child’s right to private and family life)    i.e, the LA consider that the case has reached that “last resort” stage, but the Court think that more could be done?

If the case is being brought on the second limb

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons

then the Court COULD conclude that really an attempt should be made to place the child in another form of accommodation with different resources and safeguards as one last try, and so the criteria is not made out.

 

What about the first limb?

(a) that –

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm;

 

That’s probably harder to resist – if factually there IS, a history of accommodation and if factually there IS a likelihood of significant harm if the child absconds again  (and that likelihood is the ‘risk that cannot sensibly be ignored’ provided that there’s some factual basis for thinking that that risk exists), it is hard for the Court to avoid making the order, even if they don’t consider that Secure Accommodation is the right order for the child.

So you can see that the issue of what amounts to a history of absconding can be important as to whether the Court are in charge of the order, or whether they are just there to factually determine that the criteria are made out.

 

[This judgment is also a good go-to resource for the law on secure accommodation, as the Judge gives a very punchy summary of the key issues, in part because not all of the parties in the case had quite grasped the rather unusual nature of s25]

“A labyrinth of DoLs”

 An imaginary judgment

 

(I am extremely grateful in the construction of the legal framework of this judgment to Lord Justice Wilson’s careful and precise analysis of the law in RE P and Q 2010 – often known as the MIG and MEG case. Almost everything in this that you think is well-written was written by Lord Justice Wilson, and everything shabby and feeble is my own)

 

 The Court is today dealing with an application by those representing the parents of a young man named L, to the effect that his accommodation in the Minos Taurus care facility amounts to a Deprivation of Liberty under the Mental Capacity Act 2005, and that as this has been done without authority, the facility, and the Local Authority who placed him there are in breach of Article 5 of the Human Rights Act 1998 in that his liberty is being restricted without lawful excuse.

 

The Local Authority and the owners of Minos Taurus – Mr Ian K Harris and his dad, Ellis, contend that there is no restriction on L’s liberty and that there is an open door that L can leave by at any time and a path that can be followed to the outside world should he wish to leave at any time; and that thus L is effectively remaining in the placement of his own wish.

 

Matters are complicated when the Court looks, as I am strenuously urged to, beyond the face value of that statement and at the reality of the layout of the Minos Taurus care home. The care home has a front door, which is locked at all times. Staff members have a key, and visitors will be admitted, but residents are not able to freely enter or exit through that door. That much is common ground between the parties.

 

The rear door is indeed, unlocked at all times and any resident is free to go through it and staff would not attempt to prevent or discourage a resident from doing so.

However, emerging from that back door does not grant the resident immediate access to the public highway or the world at large, but rather to the grounds of the Minos Taurus home, which are over two acres in size. I have been shown aerial photography taken by the applicants of those grounds and it is plain that what has been constructed is an array of hedges, constructed in such a way that only one path moves from the entrance to the exit.

The hedges themselves are impenetrable, and could not be scaled without considerable difficulty, being both prickly and twelve feet in height.

In short, what lies at the rear of Minos Taurus can best be described as a labyrinth. The entrance to this labyrinth is the back door of the physical Minos Taurus building and the exit is to the public footpath that runs outside the rear of the property. There is no physical gate, or barrier to that exit.

 Minos Taurus therefore contend that L, or any other resident, would simply have to walk a path between the entrance and the exit. If they walked that path, which they are free to do at any time of the day or night, nothing would prevent them from reaching the footpath and thus leaving the land owned by Minos Taurus. Thus, there is no deprivation of liberty.

I note that they contend that describing their grounds as a labyrinth is pejorative and that it is, in reality ‘a restful and soothing arrangement of hedges in a classical form’.

 They are to be admired for their chutzpah in that submission, but I find that quite the simplest of this entire tangled and byzantine case to unpick. The grounds are laid out in the form of a maze (I note in passing that whilst I may, as counsel did throughout, flit between the term maze and labyrinth, that what we are dealing with here is a maze – since it has an entrance and exit and branching paths, whereas a labyrinth leads to the centre and is not intended to be difficult or puzzling to navigate).

I am satisfied that the applicant’s claim that the grounds of Minos Taurus are intentionally laid out as a maze, and that it is not a merely coincidental happenstance or an intention to create a geometrically and horticulturally pleasing arrangement which simply happened to also take the form of a maze. Nor is it a homage to Hampden Court, or the many other notable horticultural efforts that are set out in glossy photographs in Section J of the bundle. Whilst those photographs have indeed been soothing to consider and admire, they have not assisted me as Minos Taurus had hoped they might.

The grounds are laid out in the form of a maze and this has been a deliberate intention on the part of Minos Taurus.

L’s family contend, that L, being a person who lacks capacity to make decisions in his own regard, is incapable of navigating a maze or labyrinth, and that whilst theoretically, he is free to leave at any time, in reality he is imprisoned by this maze and his liberty is just as restricted as if he were blocked by a locked and barred door.

They state that it is of significance that their Freedom of Information request gleaned that :-

 (a) Since the construction of the maze, no member of staff has chosen to enter by the back door rather than the front

(b) Since the construction of the maze, no resident has left the home by way of the back door.

(c) All residents who have left the home have done so by the front door, which had been unlocked for them by staff.

Turning now to the law, which one might rightly muse is almost as impenetrable as the hedge and with as many twists and turns as the construction in question. The issue whether the arrangements for L amount to a deprivation of his liberty and whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Article 5 provides: “1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – … (e) the lawful detention … of persons of unsound mind …; … 4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

 The practical effect of a conclusion that the arrangements for L amount to a deprivation of his liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event his right would be to take court proceedings for a decision in relation to the lawfulness of their detention The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive him of his liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court’s review would probably again require independent representation of him.

It is not, therefore, a merely academic question, but one which goes to the heart of L’s rights. I shall not go into details of the nature of L’s problems, suffice to say that his day to day functioning is approximately that of a five year old child and that it is beyond dispute and accepted by all parties to these proceedings that he lacks capacity to make decisions for all matters relevant to these proceedings pursuant to section 2 of the Mental Capacity Act 2005. There is expert evidence, undisputed, to that effect.

 L came into the Minos Taurus care home as a voluntary patient, his family having brought him there for a period of respite. They say that they had no idea that having taken him there, they did not have the power to discharge him. Although he is free to leave whenever he wishes, he is, they say, prevented from doing so by the practical barriers that have been put in place.

As indicated earlier, Minos Taurus and the Local Authority who are assisting in the funding of L’s placement there, and supporting his remaining in that placement, are of the view that L can leave the placement at any time and that there is a route or path which can be followed which is completely unimpeded to L, if he chose to follow it. Minos Taurus have indicated that if the Local Authority determined that L should leave the home by the front door, or were to cease funding the placement, they would facilitate L leaving by the front door.

The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:

(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at [74];

(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at [74]; and

 (c) the confinement must be “imputable to the State”: the Storck case, at [89].

That is not disputed by any of the parties. The critical issue that is in dispute is whether, as a matter of fact, L is confined to a certain limited place, or whether he is not. I am invited by L’s family to reword the test as being whether L is confined to a certain limited place or whether he is free to come and go as he chooses, but I decline to replace the construction that has been carefully arrived at by the ECtHR in Storck with a different formulation. It is not incumbent on the State to demonstrate that L is free to come and go as he chooses, but to refute the claim that he is confined to a certain limited place for a not negligible length of time. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at [92] – [93], as follows: “… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”

These are prescient words indeed and ones that have survived the last three decades better than tastes in literature, music, art or fashion. It certainly is no easy task to determine the clear bright line that separates a restriction of liberty from a deprivation of liberty. One is reminded of the philosophical debate about a pile of stones, and one stone being removed at a time, and at what point there ceases to be a pile.

To the layperson it would seem a relatively easy task to determine whether objectively someone is deprived of their liberty. They would probably begin with asking the question “What’s stopping them from leaving?”  , but there is no question no matter how simple or blindingly obvious the answer that cannot be obfuscated by the combined efforts of Parliament, the judiciary and the focussed minds of the Bar.

In relation to the objective element there are two more recent decisions of the ECtHR of great importance.

The first decision is HL v. UK (2005) 81 BMLR 131;  Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests. In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at [90], that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit: [91] and [92]. The court said, at [91]: “the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”

 

The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.

 

In the case of RE P (known as MIG) and Q (known as MEG) 2010, the Court of Appeal determined that there were some important factors to be considered when determining whether there was objectively a deprivation of liberty.

 1. A person’s happiness, as such, is not relevant in determining whether there has been a deprivation of liberty.

 2. However, an objection is relevant, even where a person lacks capacity. If they do not want to be in a place and they object, there will be conflict. At the very least there will be arguments and they will suffer the stress of having their argument overruled. This would be a factor which could be properly taken into account when determining if a person’s liberty were being deprived, rather than restricted.

3. From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it . The administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

4. The purpose of the arrangements under scrutiny can be relevant.

 5. the relative normality, or otherwise of the arrangements under scrutiny can be relevant

 6. an enquiry into the residential arrangements and the degree of outside social contact. “Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289.

I propose to analyse the case on the basis of those principles, to form an objective view of whether, as a preliminary issue the first of the three limbs of Starck are made out. Has there been the objective element of a person’s confinement to a certain limited place for a not negligible length of time ?

 

I am however, before conducting that exercise, mindful of the following authorities , and indeed that the Court of Appeal in Re P and Q determined that there was NO deprivation of liberty in that case and this body of caselaw strives to convince me that there is far more to the objective question that considering the commonsense formulation that an ordinary person would use “What’s stopping them from leaving?” , in that these cases illustrate that locked doors, tranquiliser medication and physical restraint can all, in certain circumstances be deployed to stop a person leaving somewhere without his liberty being deprived. 

  (I wonder, in an idle moment, whether a Judge in a civil trial to determine a tort of False Imprisonment, would wrestle for even a moment with the issue of whether someone who was drugged, locked up or sat on was being prevented from leaving, but that is by the by)

 

RE  C (BY THE OFFICIAL SOLICITOR) v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) A CARE HOME (3) BLACKBURN WITH DARWEN TEACHING CARE TRUST (2011) [2011] EWHC 3321 (Fam) Where an individual who was living in a care home with locked doors was not considered by the High Court to be deprived of his liberty.

 

The Honourable Mr Justice Peter Jackson commented here, and they are sentiments which I would not only echo, but shout into the Grand Canyon via a megaphone and perhaps even go so far as to embark upon a process of chiselling these words into Mount Rushmore:- 

 It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

Bravo.

 I wish that my own meagre contribution to the law in this regard could add illumination, but I fear it is likely to do little other than complicate matters still further.

 I am also referred to the case of CHESHIRE WEST & CHESTER COUNCIL v P (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2011) [2011] EWCA Civ 1257 In which the Court of Appeal determined that restrictive measures taken in relation to a man who lacked capacity did not amount to a deprivation of his liberty.

HELD: (1) After reviewing the relevant authorities, the court identified the following factors which were likely to be significant in the type of deprivation of liberty cases coming before the Court of Protection: (a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment); (b) deprivation of liberty had to be distinguished from restraint because restraint alone was not deprivation of liberty (paras 23, 102); (c) account had to be taken of the individual’s whole situation and context was crucial, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 and Engel v Netherlands (A/22) (1979-80) 1 E.H.R.R. 647 applied, Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 A.C. 385 followed (paras 32-35, 102); (d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would, Surrey CC v CA [2010] EWHC 785 (Fam), [2011] M.H.L.R. 108 approved (paras 27-28, 41-59, 102-103); (e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”, Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 A.C. 564 followed (paras 60-75, 102); (f) subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102); (g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation, Secretary of State for the Home Department v JJ and others followed (paras 78-97, 102); (h) the assessment had to take account of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102); (i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102); (j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development, Surrey CC v CA [2011] EWCA Civ 190, [2011] 2 F.L.R. 583 applied (paras 86-97, 102). (2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in. On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117).

 

The Minos Taurus unit, and the Local Authority urge that I exercise caution before determining that the arrangements for L amount to a deprivation of his liberty. They contend that :-

1. There is an unlocked door through which L may leave at any time.

2. L’s needs are being met in the unit

3. L is not making attempts to leave through the unlocked door. Setting aside whether he could navigate the maze (about which they make no concessions) he has not attempted to step out of the physical building and into the grounds at the rear of the building.

 4. L does attend social functions and some educational/play facilities outside of the unit and has a quality of life comparable to that which persisted before his admission 

5. L is not on any medication

6. L has not been the subject of any restraint

7. There are no entries in any of the records of L objecting to the placement, or of wishing to leave. It is plain that he is asking for his family and making positive comments about them and his time with them.

On the evidence that has been placed before me, there is nothing to counteract these facts and I have to find that these contentions are all made out.

 

Set against that,  I am satisfied that the purpose of the arrangements, in having a maze built in the grounds of the building and there being an open door leading into that maze is in order to provide the illusion of a person being free to leave. This illusion does not sit well with me, leaving as it does, an indelible impression of an attempt to circumvent the need to make the application to detain a person using the Mental Capacity Act, which application could be challenged.

I am also satisfied that none of the residents at Minos Taurus, who are there on a “voluntary” basis are capable of negotiating or navigating that maze successfully and that within a few short minutes of being in the maze unaccompanied they would become fearful, lost and no doubt calling for staff to help them. That is not an indication of them consenting to be in the home or wishing to remain there, but the reality of them being simply incapable of negotiating the obstacle that has been placed in their path by Mr Ian K Harris and his father, Ellis.

This, however, is the only matter that I can set against the 7 positive factors listed above to indicate that there might be a degree of deprivation of liberty rather than restriction of it.  I do not feel able to imbue that matter, grave as it is, with sufficient weight to tip the scales against those 7 positive factors.

Much as this conclusion might leave a bad taste in my mouth, the construction of the maze being a clear device to circumvent suggestion that L and his fellow residents are deprived of their liberty, I am in difficulties on the authorities to reach the objective conclusion that L’s family invite me to make. Given that some of the authorities find that locked doors and physical restraint need not amount to an objective deprivation of liberty, and that those factors are not present in this case, I am driven by the authorities and an analysis of the law to find that there is no such deprivation of liberty.

However, my conclusion is that L would like to have a member of his family to visit him in the unit and to walk with him in the grounds. Should they happen to wish to wander in the maze, and should they happen to find their way out (perhaps with the benefit of the aerial photography that can be found at G42 of the Court bundle) then that might be a coincident outcome.

If the unit were to refuse to allow L to be visited by his family and to walk with them in the grounds, or to refuse to allow L to leave by the exit of the maze, should he find his way there, then I would be minded to find that a deprivation of liberty had occurred at that point. Indeed, I determine that if they were minded to do so, they should make the relevant application to give them authority to deprive L of his liberty to walk in the garden with his family.

 The same would be true of any of the other residents of Minos Taurus, and I am happy for this judgment to be published and made available to the family members of all other residents of the unit.

I apologise that my solution and judgment in this case is more akin to the Gordian Knot than Ariadne’s ball of thread, but I trust that it will meet with some satisfaction in at least some of the participants of this fascinating piece of litigation.