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Deprivation of liberty cases increase tenfold

The number of deprivation of liberty cases dealt with by local authorities has increased ten times since a landmark Supreme Court decision last year.

If someone is unable to make decisions about their own care and living arrangements, as a result of illness or disability, other people can make such decisions for them. Sometimes, such decisions can infringe upon a person’s Article 5 right to “liberty and security of person” under the European Convention on Human Rights. When this occurs, it is known as a “deprivation of liberty”. In order to address this issue, certain safeguards were added to the Mental Capacity Act. These include a requirement that the situation is regularly reviewed and that the affected person has a representative who can challenge the deprivation on their behalf.

If a care home or similar organisation believes that a deprivation of liberty cannot be avoided, they must apply for assessment and authorisation of the situation by the courts.

However, last year the Supreme Court ruled on the so called ‘Cheshire West case’. In this case, a previous decision by President of the Family Division Sir James Munby was overturned. He had ruled that the living conditions of three people with mental disabilities were an “inevitable” consequence of their care. The Supreme Court disagreed and said the conditions amounted to a deprivation of the three’s liberty.

That decision effectively lowered the threshold for what could be classed as a deprivation of liberty. In reaction to the Supreme Court’s ruling, Sir James warned that applications for assessments would dramatically increase. With more stringent criteria to consider, the living arrangements for greater numbers of people now require authorisation.

Figures from 116 local authorities in England appear to support Sir James’ prediction. In the year prior to Cheshire West, there were about 10,900 applications for safeguards. In the year since the decision, local authorities have received 113,300 applications.

The tenfold increase has created a backlog of applications which local authorities’ are struggling to deal with. Recent figures reveal that 54 per cent of applications had either been withdrawn or had not been properly signed off. In the previous year, this was only true in three per cent of applications.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Paula says:

    My children aged 6, 7, 10 and 13 are all in foster care due to a care order, their has been no physical abuse accused or otherwise from me or my family, I was in an abusive marriage of which I am now divorced, I see my children separately from my ex-husband, it has been 3 years since the care order I am still trying to take it back to court however I am still not allowed to see my children without strict supervision that listen intently to everything I speak of with them and constantly hold the threat that all contact will be cancelled should i say anything that they class as inappropriate.My children are not allowed any direct contact with me outside of the contact center including letters, emails or messages of any kind. My children are also scrutinized about any activity on the internet that could involve me they are watched and blackmailed with loss of contact, I have always been very close to my children and them to me, it feels very unnatural and extreme to limit contact in this way are social services within their rights to do this. On the last Lac review it stated that my children are still finding it difficult to except they will not be returning home to their Mother. Do you have any advice I feel that ss constantly dismiss my requests.

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