Jake Richards, 9 Gough ChambersThis article argues that the suspension on prison visits during this period and the deficiency of measures to mitigate the impact of this on family life and to protect...
(Family Division; Munby LJ sitting as a judge of the Family Division; 4 May 2010)
In the two separate cases, a child and an adult both suffered from a rare syndrome resulting in them lacking capacity. They were cared for at home by their families and were locked into their rooms at night, although nobody suggested that they would be better cared for in any other environment. The issue was whether the care at home involved deprivation of liberty.
Held that the child and the adult were not deprived of their liberty, instead their liberty was restricted. To engage Art 5, deprivation of liberty must be imputable to the State. Notwithstanding local authority's duties, it was not sufficiently directly involved to engage the State's responsibility. In any event, while the subjective element of deprivation of liberty was satisfied, the objective element was not. A domestic setting could involve deprivation of liberty, but typically not. Re MIG and MEG  EWHC 785 (Fam) approved. Declaration made that there was no deprivation of liberty.
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