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'Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7 [arranged by an independent contractor]. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back.'Before Mr Justice Mostyn, both the local authority and KW (by her litigation friend Celia Walsh) agreed that the decision of the majority in Cheshire West compelled the conclusion that she was deprived of her liberty (the local authority being said to ‘constrain to concur’ with this conclusion).
'[found] it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.'In order to reach this conclusion, Mostyn J embarked upon his own analysis of the meaning of Article 5 ECHR and of the concept of liberty, holding that the first question he had to ask was what '"liberty" was for Katherine'. This was, he acknowledged, a 'big question' (para ). He considered what J.S. Mill had to say upon the subject, noting that he considered that it was 'inconceivable' that Mill would have found that the provision of care to Katherine in her own home involved an encroachment on her liberty – and that he would have taken the same view of each the of three cases that were before the Supreme Court in Cheshire West.
'It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5.' (Emphasis in original)Mostyn J made very clear he agreed with the opinions of the minority in the Supreme Court (and those lower courts that were in line with them), but – properly – recognised that he was bound by the majority. He, however, distinguished Katherine’s situation on the following bases:
'Katherine’s ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves. It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not ‘free to leave’. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.' (para )
'By contrast MIG was a young woman with full motor functions, notwithstanding her problems with her sight and hearing. She had the physical capacity to leave in the sense described. She had sufficient mental capacity to make the decision to leave, in the sense described. If she tried she would be stopped. Therefore, it can be seen that in her case both parts of the acid test was satisfied.' (para )
'could never to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged.' (paragraph 26, footnote in the original)
 There is also the problematic question of whether the State is involved in a private arrangement if benefits, such as attendance allowance, are paid to help with the care of the protected person.Mostyn J then held that the 'matter' (by which I presume he means the application of Article 5 in this context) 'should be reconsidered by the Supreme Court'. Mostyn J held that he considered that a 'leapfrog' appeal to the Supreme Court was technically possible (if the council agreed), but made alternative provision for extending time to seek permission to appeal from the Court of Appeal.
Explains the relevance of the Court of Protection in family matters
'124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.
125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to
Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.
126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty.
127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the
Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.
128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished…' (emphasis added)