(Court of Appeal; Mummery and Hooper LJJ and McFarlane J; 2 August 2011)
A young adult was placed with foster carers as a child. There were concerns about some comments made by the vulnerable adult which led to a safeguarding referral, during which the vulnerable adult was removed from carer and placed in a residential unit. The safeguarding investigation was inconclusive. The foster carer and young adult's sister applied to court for the adult's return to foster carer's home. The judge concluded that the adult was undoubtedly being deprived of liberty in the residential unit which was completely controlling the adult's movements and confining him to the unit unless escorted somewhere. The deprivation was not done ‘in accordance with a procedure prescribed by law' and therefore in breach of Art 5 and also in breach of Art 8 in removing the adult from home without conducting any balancing exercise. Eventually ordered the return to carer. The judge ordered the local authority to pay the costs of the foster carer and sister, including pre-litigation costs on an indemnity basis up to the first hearing and then 1/3 costs on standard basis thereafter. The judge considered that the local authority's conduct amounted to misconduct justifying departure from the general rule and there was a ‘significant degree of unreasonableness' giving rise to liability for costs on indemnity basis.