High Court issues key ruling on powers of councils in relation to incapacitated adults and children

The High Court has delivered a key ruling on the extent of local authorities’ powers in relation to incapacitated children and adults.

In A Local Authority v A (A Child) & Anor [2010] EWHC 978 (Fam), a nine-year-old child (A) and a 22-year-old adult (C) in the same local authority both suffered from Smith Magenis Syndrome.

The syndrome produces behavioural problems such as self harm, physical and aggression, hyperactivity, destructive behaviour and severe sleep disturbances, which include frequent and prolonged night waking and early morning waking.

Lord Justice Munby said the parental care given at home by the parents was “devoted and exemplary”, adding that there is “nothing which even begins to suggest any proper basis for compulsory intervention in the lives of the families”.

Despite the different legal context – reflecting the different regimes for children and incapacitated adults – the issue was the same: Do the circumstances of their care by their families – they were both locked in their bedrooms at night to keep them safe –  involve a deprivation of liberty engaging the protection of Article 5 of the European Convention on Human Rights (the right to liberty and security)? And what, if any, role does the local authority have in such cases?

In both cases, the judge accepted the recommendations of medical experts, A’s guardian ad litem and C’s social worker that keeping them locked in the bedroom at night was in their best interests, and that they were at more risk of harm if the door was open. Alternatives such as a night-time carer would have significant disadvantages, principally because it would disturb A and C’s sleep pattern.

Lord Justice Munby ruled that where a local authority “knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual, then its positive obligations under Article 5 will be triggered”.

On the nature of these obligations, the judge said:

• They include the duty to investigate, so as to determine whether there is, in fact, a deprivation of liberty. In this context the local authority will need to consider all the relevant factors, both objective (in terms of the nature of the confinement) and subjective (whether the individual has validly consented to the confinement).
• If, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no deprivation of liberty, the local authority will have discharged its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation.
• If, however, the local authority concludes that the measures imposed do or may constitute a deprivation of liberty, then it will be under a positive obligation, both under Article 5 alone and taken together with Article 14, to take reasonable and proportionate measures to bring that state of affairs to an end. What is reasonable and proportionate in the circumstances will depend upon the context, but it might require the local authority to exercise its statutory powers and duties so as to provide support services for the carers that will enable inappropriate restrictions to be ended, or at least minimised.
• If, however, there are no reasonable measures that the local authority can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, obtaining authorisation for its continuance.

Ruling that parents remain in control of how they bring up their dependents, Lord Justice Munby said: “What emerges from this is that, whatever the extent of a local authority’s positive obligations under Article 5, its duties, and more important its powers, are limited.

“In essence its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court.”

The judge suggested that a “key message” was that whatever the positive obligations of a local authority under Article 5 may be, “they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do must either point to specific authority for what it is doing – and….such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court”.

Lord Justice Munby added that local authorities should approach investigations with sensitivity and a proper appreciation of the limited extent of their powers. He also warned that “too often” local authorities applied ex parte (without notice) to remove incapacitated or vulnerable adults from their carers.

He added that too often the courts granted such orders when the “seeming heavy handedness is not easy to justify and can too often turn out to be completely counter-productive”.

John Wadham, group legal director at the EHRC, which intervened in the case, said: “This is an important case about the limit of the power of local authorities. It provides a timely reminder that only in exceptional circumstances can authorities override the decisions of loving parents.”