deprivation of liberty
27 October 2025 by Catherine Berus
In the news
A private member’s bill to enshrine the rights of nature was introduced in the House of Lords on October 23, 2025. The bill is supported by former Green Party Leader Baroness Natalie Bennett, and drafting was led by the organization Nature’s Rights. The objective of the nature’s bill of rights is to change the legal status of nature to that of a recognized legal entity with inherent, enforceable rights. The bill would create a duty of care for the government to protect nature. The proposal includes a governance structure, monitoring, and the creation of a nature’s rights tribunal for enforcement and dispute resolution.
According to Nature’s Rights, the purpose of the bill is to establish a legal framework for a more regenerative and sustainable society while aligning with realities of climate change science. If the bill passes, the UK will join a number of other states which recognize some degree of rights for nature in their constitutions, laws or regulations, including Ecuador, Brazil, Bolivia, Mexico, New Zealand, Uganda, Canada and the US.
In the courts
The Supreme Court heard arguments last week in relation to the 2014 decision known as Cheshire West. The 2014 ruling established the ‘acid test’ for determining whether an individual has been deprived of their liberty. According to the test, if a person (1) is subject to continuous supervision and control and (2) is not free to leave, then they are deprived of their liberty. The ruling had implications for persons with disabilities where it had been concluded that where a person with a disability cannot consent to their care arrangements that involve confinement, they are being deprived of their liberty. Where a person cannot consent to their care, an independent individual is required to determine that the confinement is justified, lawful and in the person’s best interests. The ruling has resulted in a significant increase in deprivation of liberty safeguards (“DoLS”) applications: for 2023-24, 332K applications were made (an increase of 300K over 10 years), with a backlog of 124K.
The Attorney-General of Northern Ireland (“AGNI”) is asking the seven-judge panel to reconsider Cheshire West in order to change the current DoLS established in response to the Cheshire judgement. The AGNI is seeking for consent for care arrangements to be obtained through an expression of a person’s feelings and wishes where they lack capacity to consent.
The Department of Health and Social Care (“DHSC”), an intervener, argued Cheshire West was “wrongly decided” and created an unsustainable system. DHSC argued that the focus of safeguards should be on identifying a person’s wishes and feelings and avoid intruding upon individuals’ lives. Three charities, Mencap, Mind and the National Autistic Society, intervened in the case. They jointly expressed a serious concerns about the arguments put before the Supreme Court and argued that the current test applies to “highly restrictive settings” and is there to ensure individuals have advocates in the care process; changes would jeopardize the safety, freedom and rights of disabled persons.
The judgment date is yet to be announced.
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20 May 2025 by Anogika Souresh
J v Bath and North East Somerset Council & M [2025] EWCA Civ 478 concerns an appeal of a decision by Mrs Justice Lieven. Lieven J had held that there was no need for the High Court to make an order authorising the deprivation of J’s liberty in circumstances where both J’s parents and the local authority consented to the deprivation of liberty.
J is a 14-year-old boy with a number of diagnoses, including autism, ADHD, and Pica. J lives in a specialist children’s home. J is subject to a final care order under Section 31 of the Children Act 1989 (“CA 1989”). The Court of Appeal spelled out that the “major consequence of any care order is that it gives parental responsibility to the local authority, which is shared with the child’s parent(s), but with the local authority having control over the manner in which parental responsibility is exercised [CA 1989, s 33(3)]”.
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22 November 2024 by Esme Cairns
Introduction
Ten years on from Cheshire West [2014] UKSC 19 (covered on this blog at the time), the seminal decision on deprivation of liberty by the Supreme Court, the Family Court faces an ever-increasing number of applications for deprivation of liberty orders for children. Two recent decisions from Mrs Justice Lieven, Peterborough City Council v SM [2024] EWHC 493 (Fam) and Re J [2024] EWHC 1690 (Fam), could curb this trend. But while these decisions emanate from the Family Court, their reasoning may be of broader interest and could prompt wider questions about Article 5 ECHR and what constitutes a deprivation of liberty.
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27 December 2021 by Rosalind English
Hotta and others, R(on the application of) v Secretary of State for Health and Social Care and another [2021] EWHC 3359 (Admin)
This was an application for permission to challenge to the Managed Hotel Quarantine (MHQ) scheme. MHQ was put into place under Schedule 11 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (SI 2021 No.582) (“the 2021 Regulations”). The 2021 Regulations were made on 14 May 2021 and came into force on 17 May 2021. They have been amended at various stages subsequently. Also amended have been the practical arrangements and, in particular, for the purposes of this case, a list of countries known as the “Red List” countries.
The claimants contended that the scheme violated the Article 5 ECHR rights of those who were subjected to it. A particular focus of the proposed claim for judicial review was to identify the category of travellers who came to (or back to) England from Red List countries into the MHQ scheme, and who were required to remain within the scheme, notwithstanding that they could demonstrate that they had been vaccinated.
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19 March 2020 by Joanna Curtis
Amid recent news reports of Turkey’s re-opening of migration routes to Europe, clashes at the Turkey-Greece border, and EU countries closing their borders due to Covid-19, this post looks back to a decision from the ECtHR Grand Chamber last November and the applicability of Article 5 ECHR in temporary border transit zones.
Ilias v Hungary (Application no. 47287/15) was the first case in which the ECtHR considered a land border transit zone between two member states of the Council of Europe, where the host state, Hungary, was also a member of the EU and had applied the safe third country rule under the EU asylum regime. The Grand Chamber held that the applicants’ detention did not breach Article 5 (the right to liberty and security of the person).
The applicants, Mr Ilias and Mr Ahmed, were both Bangladeshi nationals who had left Bangladesh at different times and in differing circumstances. They met in Greece and then traveled together to the Former Yugoslav Republic of Macedonia, then to Serbia, and then to Hungary. On 15 September 2015 they arrived in Hungary and entered the border transit zone at Röszke. They submitted asylum requests on the same day. Within several hours their requests were rejected as being inadmissible and they were ordered to be expelled from Hungary back to Serbia as a safe third country. The applicants then spent 23 days in the transit zone whilst they appealed this decision. On 8 October 2015, following a final decision of the Hungarian courts which rejected their applications for asylum and ordered the applicants’ expulsion, Mr Ilias and Mr Ahmed were escorted out of the transit zone and crossed the border back into Serbia.
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6 November 2015 by Michael Deacon
The Queen (on the application of LF) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin)
Where a coroner has reason to suspect that a person has died in custody or “otherwise in state detention” and that the death was violent, unnatural or by way of unknown cause, the coroner must hold an inquest with a jury (section 7 Coroners and Justice Act 2009 (“CJA”)). The interesting issue in this case was whether and/or in what circumstances a person who has died whilst in intensive care will be regarded as having died “in state detention”, thus triggering a jury inquest.
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8 April 2014 by Rosalind English
Surrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19 (March 19, 2014) – read judgment
Elizabeth-Anne Gumbel QC, Henry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.
Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified.
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17 November 2011 by hrupdateadmin
Chester West and Chester Council v. P (by his Litigation Friend the Official Solicitor) [2011] EWCA Civ 1257 – Read judgment / Lucy Series’ commentary
When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
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16 June 2011 by Alasdair Henderson
Neary and his father
London Borough of Hillingdon v. Steven Neary [2011] EWHC 1377 (COP) – read judgment here.
The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result.
Take a 21-year-old disabled person, the Mental Capacity Act 2005, a devoted father and an adversarial social care department. Mix in centuries-old principles laid down in Magna Carta, recent case-law on Article 5 and Article 8 of the ECHR, and some tireless campaigning by legal bloggers. The result? A landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity.
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3 March 2011 by Isabel McArdle
P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener) [2011] EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
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1 July 2010 by Adam Wagner
The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.
The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.
In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.
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4 May 2010 by Elspeth Wrigley
BJ (Incapacitated Adult) sub nom Salford City Council V BJ (By His Litigation Friend The Official Solicitor) [2009] EWHC 3310 (Fam) – Read judgment
Where there is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights, regular reviews by the court are not merely desirable but essential.
This case concerned the application of Article 5 of the European Convention on Human Rights to the ongoing review of the continuing detention of persons lacking capacity. The individual in question was a 23 year old man, BJ. As BJ lacked capacity, it was found that his best interests would be served by his continued residence at a location referred to as “MH”.
As such, the care plan devised by the local authority and approved by Lord Justice Munby (in the original hearing of 16 May 2008), required the deprivation of BJ’s liberty within the meaning of Article 5 of the European Convention on Human Rights.
Summary
Given that BJ was being deprived of his liberty, Article 5 required a review by the court of the lawfulness of his detention at ‘reasonable intervals’. Munby LJ had set out the frequency and nature of any review at the previous hearing and at paragraph 10 of this judgment the LJ again highlighted the importance of regular reviews in such circumstances,
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