Christi Scarborough appears for the Local Authority in Peterborough City Council v Mother & Ors [2024] EWHC 493 (Fam)

This is a case in which the High Court considered the appropriateness of a deprivation of liberty order (“DoLs order”) in respect of a very severely disabled child, SM.

SM

SM was a 12 year old girl diagnosed with Lissencephaly. She was non-mobile, non-verbal and unable to communicate her wishes and feelings on all but the most basic level.

The Cheshire West test 

Lieven J considered the European authorities on an individual’s right to liberty under Article 5 ECHR and the leading Supreme Court case Cheshire West v P [2014] AC 896.  

She found that the binding test adopted in Cheshire West is that for there to be a deprivation of liberty, the individual must be under constant supervision and control and not be free to leave. Furthermore, Lord Kerr’s analysis requiring a comparison with a child of the same age was not a separate test adopted by the majority of the Supreme Court.

Submissions 

In support of a DoLs order being required, the Local Authority submitted that:

1. SM was deprived of her liberty since she was not free to leave the property of her own free will, and that an ordinary 12 year old might be expected to have some liberty to come and go.
2. SM had to stay where she was whether she wanted to or not as her movements were entirely controlled by her carers, who did so on behalf of the State.
3. Not finding that SM was deprived of her liberty would have involved discriminating against her as a disabled person by applying different standards to the rest of the population.

Conclusions 

Lieven J refused the Local Authority’s application for a DoLs order giving three broad reasons why SM was not deprived of her liberty:

First, considering whether an individual is deprived of their liberty must always be fact specific. Lieven J clarified that Cheshire West is concerned with instances where a disabled person cannot do something through their own volition, by reason of their disability, but could do it with appropriate support. For example, a disabled person who cannot move without a wheelchair, and therefore cannot leave without assistance. Or a person with a mental disability, who may not assert their right to liberty, but is restrained by being told that they are not allowed to leave. SM’s situation was different to Cheshire West since she was both physically incapable of exercising her right to liberty, and mentally incapable of asserting it. SM was under constant supervision and control to meet her care needs rather than to prevent her leaving.

Second, comparing SM with an able bodied 12 year old was a wholly unreal exercise which led to a nonsensical result. SM functioned cognitively in a way comparable to a baby of a few months in age. Furthermore, there was a material difference between the able bodied 12 year old and SM in that SM was under constant control and supervision. Whilst such a comparison will be a useful exercise in most cases, Lieven J found it had never been applied in circumstances similar to SM’s.

Third, treating SM differently as a disabled person did not amount to unlawful discrimination under Article 14 ECHR. This was because SM was not in a relevantly similar situation to be compared with an abled bodied 12 year old. Therefore, a discrimination argument did not, on SM’s case, progress the analysis. Where the facts show overwhelmingly that the State is not depriving someone of their liberty, the universal quality of the right does not force the Court to a conclusion that defies the facts and commonsense.

Christi Scarborough appeared for the Local Authority.

Case note written by 42BR pupil, Matthew Timm.

14th Mar 2024

Christi Scarborough

Call 2012

Matthew Timm

Call 2021