Mental Capacity Case

A London Borough v X, Y and Z

Family Division (Theis J)

This was a wardship application brought by the local authority in respect of Z, a 17 year old boy who had a range of very complex health needs rendering him wholly dependent on his parents to meet his day to day needs.

Initially the applicant local authority had issued care proceedings, seeking the removal of Z on the basis that he was suffering or likely to suffer significant harm due to the failure of the parents to follow medical advice regarding his care or take him to medical appointments. This arose primarily as a result of the mother's mental health problems which had arisen in about mid-2018. Prior to this time, his parents had provided Z with a very good level of care.

During the care proceedings, the court made a series of orders aimed at enabling Z to access appropriate medical treatment while remaining in the care of his father in the family home. Ultimately this was only achieved once Family Law Act proceedings had been issued by the father, excluding the mother from the family home.

By the time the matter came on for final hearing it was agreed that Z should be looked after by his father, with the mother remaining in the family home but prohibited from exercising parental responsibility in respect of Z.

There remained a dispute however as to whether or not Z was deprived of his liberty in the family home within the meaning of Article 5 of the ECHR. It was agreed that his living arrangements (in which he was under constant supervision and not able to go out on his own) were a restriction on his liberty when compared to others of his age. However, the local authority argued that the objective criteria was not met for a deprivation of liberty because Z was not confined within the home beyond the ordinary requirements in any home (for example a locked front door; he was not locked in his room).  Unsurprisingly, Theis J rejected this submission and found that there was indeed a deprivation of liberty because:

  1. The objective criteria were met on the facts of this case. The court was struck by the fact that Z was assessed as requiring 2:1 care when attending his education provision.
  2. Z lacked capacity to consent to the deprivation of liberty and following Re D, the father in the exercise of his parental responsibility could not consent on Z's behalf.
  3. The deprivation of liberty was imputable to the state because the court had made Z a ward of the court and in so doing had retained control over Z's living arrangements, despite the fact that he was living in the family home and being cared for by his family.

Point 3 in the summary immediately above is of some interest – following Re D, Z's deprivation of liberty would have been imputable to the state even if the court had not made him a ward of court.  As Lady Hale observed in Re D,  in rejecting the argument that parental responsibility could serve to prevent a confinement being seen as a deprivation of liberty, one context in which such an argument might be advanced ""is where the parent is the detainer or uses some other private person to detain the child. However, in both Nielsen and Storck it was recognised that the state has a positive obligation to protect individuals from being deprived of their liberty by private persons, which would be engaged in such circumstances."

The court stated that Z was to remain a ward of the Court until his 18th birthday, at which point an application would need to be brought before the Court of Protection for authorisation of the arrangements. Of course, given Z's age (17), the matter could have been dealt with in the Court of Protection in any event.

As with most of the reported cases in this area now, and following the unfortunate lacuna in the template order endorsed by the former President, the judgment does not state the grounds upon which the deprivation of liberty is justified: was it Article 5(1)(d) (educational supervision) or Article 5(1)(e) (unsoundness of mind)?  And, if the latter, was the court provided with medical evidence of mental disorder sufficient to satisfy the Winterwerp criteria?