J: Local Authority consent to Deprivation of Liberty, Re
[2024] EWHC 1690 (Fam)
SM (Deprivation of Liberty; Severely Disabled Child), Re
6 March 2024
[2024] EWHC 493 (Fam)
High Court
A council wanted a court order to control every aspect of a severely disabled girl's life, saying it was needed to protect her. The judge said no, because the girl can't leave her home because of her disabilities, not because anyone is stopping her. The care she receives is to help her, not to keep her locked up.
Key Facts
- •Peterborough City Council applied for a deprivation of liberty order (DoLO) for 12-year-old SM, a profoundly disabled girl.
- •SM has Lissencephaly, epilepsy, global development delay, and scoliosis; she is non-mobile, non-verbal, and requires constant care.
- •The Local Authority sought restrictions including 1:1 supervision, assistance with all daily needs, and locked doors.
- •The Children's Guardian opposed the DoLO, arguing it was unnecessary.
- •The case raises concerns about the increasing number of DoLO applications and the interpretation of 'deprivation of liberty' for severely disabled children.
Legal Principles
Deprivation of liberty requires continuous supervision and control and lack of freedom to leave (Cheshire West).
Cheshire West v P [2014] AC 896
The Article 5 ECHR right to liberty applies in its classic sense – physical liberty – regardless of compliance or contentment.
HL v United Kingdom [2004] 40 EHRR 32; Stanev v Bulgaria [2012] 55 EHRR 696
Deprivation of liberty requires an objective component of confinement, a subjective component of lack of valid consent, and State attribution (Storck).
Storck v Germany [2005] 43 EHRR 6
A person's contentment with their living situation does not determine whether their liberty is restricted.
Cheshire West v P [2014] AC 896 (Lord Kerr)
Article 14 ECHR prohibits discrimination, but only if there's different treatment of those in relevantly similar situations.
R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26
Outcomes
The application for a DoLO was refused.
SM's inability to leave is due to her profound disabilities, not state action. The constant supervision is for her care, not to restrict her liberty. Applying Cheshire West's principles strictly in this case would defy common sense and be inappropriate.