Deprivation of liberty and profound disability

A recent High Court ruling has left an urgent need for appellate clarification, writes Alex Ruck Keene KC (Hon).

Another in the Lieven J-inspired line of challenges to Cheshire West can be found in Re V (Profound Disabilities) [2025] EWHC 200 (Fam), concerning a 15 year old boy with “profound enduring disabilities”, in which HHJ Middleton-Roy (sitting as a Judge of the High Court) identified that:

13. People with disabilities have the same human rights as those without disabilities. ‘V’s profound disabilities place a duty on the State to make reasonable accommodation and cater for his particular needs. The measures put in place by the Local Authority to support ‘V’, on a proper fact-specific analysis, form part of ‘V’s care provision. ‘V’ is undoubtedly under close and constant supervision. However, in this Court’s judgement, the measures implemented by the Local Authority are not actions of the State which deprive ‘V’ of his liberty. They are designed to meet his care needs. There are many aspects of ‘V’s care which may intrude on his privacy, with specific justification, but they are not, in this Court’s judgement, interferences with his important right to liberty and security of person under Article 5 of the European Convention on Human Rights.

14. Respectfully, this Court disagrees with the submission that there is any material distinction of the principle in SM[[1]] this current case. The young person, ‘V’ who is at the centre of this case, requires support because of his profound disabilities. In practical terms, ‘V’ cannot leave his care placement of his own volition, due to his enduring disabilities. For ‘V’, the reason he can’t leave his care placement and requires intimate support is because of those disabilities, not by reason of any action of the State. For the same reasons articulated by Lieven J in SM, the facts of this case show that the State is not depriving ‘V’ of his right to liberty and security of person within the meaning of Article 5 ECHR. ‘V’s Article 2, 3 and 5 rights are not infringed by the restrictions necessarily implemented by the Local Authority to supervise him, monitor him and provide for his personal care.

It is important to note that almost exactly the same arguments as set out here were roundly rejected by the majority of the Supreme Court in Cheshire West. It is not obvious, one might think, why the fact that the person in question is 15, as opposed to 25, should make any difference to the basic arguments of principle relied upon by HHJ Middleton-Roy.

There is a further aspect: there is no reason to think that either V’s impairments, or his arrangements, will change when he turns 16: at that point, applying the decision of the Supreme Court in Re D (which was not referred to by Lieven J in SM, nor by HHJ Middleton-Roy in the instant case), it would seem impossible to say that he is anything other than deprived of his liberty. It is therefore very difficult indeed – if not impossible – to reconcile this decision (or that of SM) with binding Supreme Court authority.

I would suggest that there is the same urgent need for appellate level consideration of this issue as there was of the decision of Lieven J in Re J concerning (as the Court of Appeal confirmed on 5 February) what is, in fact, the non-ability of local authorities to consent to confinement of children subject to care orders.

For what is worth, it seems to me that:

(1) We need always to be clear that there are three elements in play: the objective element, the subjective element, and State imputability.

(2) The objective element of confinement needs to be thought about consistently as regards those under 16 and those aged 16 and above (my suggestion being Lord Kerr got it entirely right in Cheshire West – and Lady Hale in Re D – by nuancing the ‘acid test’ by reference to what society would consider acceptable for a non-disabled child of the relevant age).

(3) That having been said, there is a very good case that Cheshire West ‘overshot’ as regards the scope of Article 5 ECHR in the context of disability by capturing more people than the Strasbourg concept of the right to liberty requires.

(4) However, any attempt to undertake a course correction by reference to the severity of the impairments of the person themselves inevitably leads to discrimination, because it inevitably leads to a conclusion that liberty means less for someone who because of those impairments is unable to enjoy that liberty.

(5) A way of undertaking a principled course correction would be to start by looking closely at whether the arrangements are line with, or contrary to, the person’s known will and preferences – as discussed further here. That course correction may (and I only say ‘may’) need to be modified to take account of the role of natural persons with parental responsibility in respect of children, but does need to start with the child themselves.

(6) Above all: that course correction can only be undertaken by the Supreme Court, given that it has set the parameters, and attempts (including those as sophisticated as those of Lieven J in Re SM) to do so at first instance need to be read in that light. Such attempts must be subject to enormous health warnings in relation to children under 16. And under no circumstances should the logic of the cases decided in relation to children under 16 such as SM and V be applied to those over 16.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

[1] Ie. the decision of Lieven J in Re SM [2024] EWHC 493 (Fam).