Family Law

Her Honour Nasreen Pearce

Retired Circuit Judge

District Judge Sue Jackson

Nominated Judge of the Court of Protection:

This is the last in the series of articles which have appeared in Family Law. Those readers who have been following the series will be familiar with the term 'The Bournewood Gap' and what it means. For those who remain unfamiliar, there had been numerous cases in which the European Court of Human Rights (ECtHR) had found that the care and treatment by public bodies of those who lack capacity amounted to deprivation of liberty in breach of Art 5 of the European Convention on Human Rights. This culminated in the decision in HL v United Kingdom (Bournewood) [2004] EHRR 761. The European Court found that the UK laws was not compliant with Article 5 and identified a number of short comings in the legislation relating to those who lacked capacity. Once the provisions of the European Convention were incorporated into English Law by the Human Rights Act 1998 it became imperative to deal with the issues raised by the ECtHR.

The amendments to the Mental Capacity Act 2005 (known as the Deprivation of Liberty Safeguards (DOLS)) were introduced to ensure that the procedure for depriving the liberty of whose who lacked capacity was Convention compliant.

This article considers whether these measures have proved adequate to cover the numerous and complex situation which may or often arise in respect of those who lack capacity and situations which are either not covered by the legislation or remain unclear.

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