SM (Deprivation of Liberty; Severely Disabled Child), Re

Article 5 requires a fact-specific assessment of whether a person is under constant supervision and control and is not free to leave. The inability to leave must be attributable to State action or inaction. A profoundly disabled child is not deprived of liberty merely because care providers control her movements and she cannot leave, where that inability arises from her own physical and cognitive disabilities rather than restraints imposed by the State. Care measures addressing welfare needs do not automatically constitute deprivation of liberty. The same-age, non-disabled comparator discussed in Cheshire West v P is not an additional universal test.

Peterborough City Council sought a deprivation of liberty order concerning SM, a 12-year-old child with profound physical and cognitive disabilities who lived with foster carers under a final care order. The proposed arrangements included continuous supervision, movement and personal care by carers, bed rails, supported outings and locked external doors.

The application raised whether those arrangements deprived SM of liberty under Article 5 of the ECHR, notwithstanding that she was physically incapable of leaving and unable to form or express a wish to leave. The central issue was whether Cheshire West v P applied to those circumstances.

1. Application refused. The court held that SM was not deprived of her liberty within Article 5 of the ECHR.
2. The governing approach is fact-specific. The relevant inquiry is whether the individual is under constant supervision and control and is not free to leave, with the deprivation attributable to State action or inaction. The Strasbourg authorities, including Engel v The Netherlands, HL v United Kingdom, Storck v Germany and Stanev v Bulgaria, require attention to the individual’s concrete situation, including the type, duration, effects and manner of implementation of the measures.
3. Cheshire West v P established that a disabled person may be deprived of liberty despite compliance with benevolent care arrangements. Its binding test was constant supervision and control together with lack of freedom to leave. Lord Kerr’s same-age comparator was not a separate test adopted by the majority, and comparison with a non-disabled 12-year-old would be unreal on SM’s facts.
4. SM’s supervision and physical handling were directed to meeting her care needs, not preventing her from leaving. She was incapable of leaving because of her profound disabilities, and not because the State restrained her or failed to provide support which would enable her to leave. It is conceptually incoherent to treat her as deprived of an ability she was incapable of exercising for those reasons.
5. The Article 14 ECHR argument did not alter the result. A non-disabled child was not in a relevantly similar situation because there was a material difference concerning the need for constant care and supervision, applying the approach in R (SC) v Secretary of State for Work and Pensions.
6. Measures such as supervision, movement, feeding, washing, continence care and bed rails were care provision rather than deprivation of liberty. The court also warned against the expansion of deprivation of liberty applications to encompass ordinary care arrangements.