Court Rules that Severe Disability Does Not Constitute Deprivation of Liberty Under Article 5 ECHR

Citation: [2024] EWHC 493 (Fam)
Judgment on

Introduction

The case [2024] EWHC 493 (Fam), heard before Mrs Justice Lieven, presents a critical examination of the application of a deprivation of liberty order (DoLs order) concerning a severely disabled child, identified as SM. Central to this case is the interpretation of Article 5 of the European Convention on Human Rights (ECHR), the Supreme Court ruling in Cheshire West v P ([2014] AC 896), and the balance between state intervention and the inherent physical and mental incapacity of the individual.

Key Facts

SM is a profoundly disabled 12-year-old girl who cannot move or communicate in a manner consistent with her age. She lives with foster carers under a final care order from Peterborough City Council. The Local Authority (LA) sought a DoLs order on the basis that SM’s physical movements and environment are continuously controlled by carers, including the nature of her supervised care even within her own home.

The case raises questions about whether this level of care and supervision constitutes a “deprivation of liberty” as per Article 5 ECHR when applied to a person with severe disabilities who lacks the physical or mental capacity to leave their environment or express a desire to do so.

Mrs Justice Lieven’s analysis rests on several legal principles derived from both domestic and European caselaw:

  1. Objective and Subjective Components of Liberty Deprivation: The three-part test from Storck v Germany ([2005] 43 EHRR 6) was considered: the objective element of confinement, subjective lack of valid consent, and State responsibility.

  2. Continuous Supervision and Control: The Cheshire West criteria focus on whether the individual is under constant supervision and control and not free to leave. Justice Lieven highlights that supervision for care as opposed to prevention from leaving is a crucial distinction.

  3. Comparative Analysis: The principle of comparing the freedoms of a disabled individual with a non-disabled person of the same age, a concept noted in Lord Kerr’s opinion in Cheshire West, was scrutinized. It was argued, however, that this comparison is less meaningful when dealing with profound disability.

  4. State Intervention and Disability: The argument hinges on whether the deprivation is solely due to state action or a result of the individual’s own insurmountable disabilities.

  5. Non-Discrimination Principle: Article 14 ECHR and the principle against discriminating on the basis of disability were discussed, with the key question being whether differential treatment is justifiable due to material differences pertaining to the case.

Outcomes

Mrs Justice Lieven concluded that SM’s situation did not amount to “deprivation of liberty” under Article 5 ECHR. This finding was predicated on the notion that the State did not actively restrict SM’s liberty; rather, her liberty was inherently limited by her profound disabilities. The court thus refused the DoLs order application, noting that such order defies both facts and common sense.

Conclusion

In [2024] EWHC 493 (Fam), the court has delineated a boundary within the deprivation of liberty discourse, opting for a commonsensical interpretation over an unyielding application of Cheshire West principles. The judgment suggests that an individual’s physical and mental incapacity to exercise liberty should not automatically translate into a legal deprivation attributable to State action. This clarification champions a tailored approach to Article 5 ECHR applications, sensitive to the inherently unique circumstances individuals with severe disabilities may present.

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