By Celia Kitzinger, 15th November 2026
The protected party at the centre of this case (COP 20017600 before Mr Justice Poole sitting remotely in the Royal Courts of Justice on 14th October 2026) is a young man in his twenties whose diagnoses include severe learning disability, autism, global developmental delay, microcephaly, spinal stenosis and epilepsy. He requires 24/7 care and support.
When he was 10 years old, Mr and Mrs B became his foster carers and later, when he reached adulthood, his ‘Shared Lives’ carers. He lived with them for 16 years.
But something has gone badly wrong. In May 2025, he was removed from their care and placed with different Shared Lives carers. Mr and Mrs B have not seen him since. They don’t know where he is now living. They received a letter from the Shared Lives agency saying they have no right to contact P and should not do so. Earlier in the proceedings, a different judge made a ‘no contact’ order. There are safeguarding enquiries underway, and a police investigation. Mrs B has been suspended as a Shared Lives carer and recently had her registration removed.
Mrs B has applied to the court for:
(1) P’s return to live at home with her and her husband
(2) contact between P and herself (and her husband I think) until he does return home
and
(3) appointment as his Welfare Deputy.
Prior to this hearing, there had been a closed hearing on application from the local authority, heard by Mr Justice Poole on 6th August 2026, at which a temporary closed material order was made (i.e., information before all the other parties is not to be disclosed to Mrs B).[1] I haven’t observed any of these earlier hearings.
There are many complex issues in this case I’m struggling to understand – partly because of the closed hearing(s) and closed materials, but also because the parties failed to submit the case summary, chronology and list of issues before the court (the so-called “Gardner” documents) mandated at Practice Direction 4B para.4.2(a)-(c) COPR 2017. They also refused to disclose their position statements. See my “Postscript” about the transparency failure this represents. The absence of any documentation[2] means that access to the hearing achieved transparency more in form than in substance, and this is obviously reflected in my reporting of it.
In this blog post, I’ll first describe as accurately as I can what happened during the hearing,[3] and then reflect on an issue that may or may not turn out to be something the judge needs to decide, but which attracted my attention as an apparently contested matter in this case: whether the Article 8 right to respect for private and family life applies to people who are effectively “paid to be family” (as counsel for the local authority described Shared Lives carers).
1. Hearing of 14th October 2026
According to her counsel (Brett Davies of Spire Barristers), Mrs B’s principal concern is to get P home. It became apparent that the judge wouldn’t be in a position to make a decision about that until the safeguarding investigations are complete.
In this hearing, the judge made directions about the evidence he needed to make residence decisions in the long-term, and then focussed on the issue of interim contact, i.e. whether, and how, Mr and Mrs B could see P over the course of the next six months or so while the safeguarding investigation is ongoing. The judge also made a declaration that P was not deprived of his liberty in his current Shared Lives placement.
Mrs B’s application to become P’s Welfare Deputy was deferred because (said the judge) there was no immediate need for a Deputyship while P’s welfare is before the court. Her counsel said that the Deputyship application was in any case “not high on Mrs B’s list” and came about because (when unrepresented) “… she didn’t know what to do to and made that application to get the matter before the court”. Her priority was, and remains, getting P back home.
I will cover first directions about residence and contact, and then the DOLS.
Directions on residence and contact
The question of long-term residence and contact would have to wait until the outcome of the safeguarding investigation, projected to be six months hence.
In response to the judge’s question of whether P’s return home is being pursued (given that it may no longer be lawful to place him with Mrs B, given that she’s been deregistered as a Shared Lives carer), Brett Davies said unhesitatingly that indeed it was: “Yes, it’s being pursued. As set out in my Position Statement, my client sees P as part of the family, as he has been for almost 17 years. He has established relationships with [name] and other family members, family in inverted commas, who reside in that household. The Official Solicitor’s Position Statement was only circulated at 9.30 this morning but calls for a detailed response.”
I do not have the Position Statement to which Brett Davies referred, so I do not know the details of the argument on which the Official Solicitor relies, but I got some sense of what it must be that the Official Solicitor is arguing from what Brett Davies said next:
“In the time available to me, I have discovered that the Health and Social Care Act 2026[4] says at paragraph 58 that “a family relationship includes a relationship between 2 persons who (a) live in the same household and (b) treat each other as though they were family members of the same family’. In my submission, that definition is enough to defeat the argument of the Official Solicitor. P would, if placed back, fall within that definition of a family relationship, living in the same household and treating each other as family. Mr and Mrs B have Article 8 rights. […] The obvious inference is that it is NOT unlawful for P to be placed in the care of Mr and Mrs B.”
Considering the issue of interim contact, the judge asked counsel for the local authority, Shadia Doerfel, for their position about various options. Could remote contact be considered if it were possible that P might be able to benefit from that? Could face-to-face contact be supported in a public space, such as a park? He asked her to consider this “against the background that he’s lived with this family for many years”.
“They were paid to be his family”, said Shadia Doerfel.
“That is, if I may say so, a slightly insensitive remark”, replied the judge.
Sadia Doerfel did not engage with the judge’s assessment of her remark and merely reiterated that the local authority does not consider returning P to live with Mr and Mrs B to be an option at all.
Counsel for the Official Solicitor, Oliver Lewis of Doughty Street, suggested that the court might adjourn for six months pending the outcome of the safeguarding investigation and then “issue an order though a parallel closed material process”. His view was that “the concerns of the closed materials go to the heart of contact and residence, so it would be difficult to assist the court on this in the interim”.
“But the court has the closed material and can take it into account,” said the judge. “Obviously if I adjourn for 6 months, that excludes any possibility of interim contact, so I think I am indicating I wish to address the matter of interim contact I would also like legal argument on the residence issue. I think it’s unlikely I’d make an interim order on change of residence. But interim contact is a different matter.”
Alluding to the closed materials, counsel for Mr and Mrs B pointed out that “the local authority knows more than we do, so in their evidence on contact, can they properly address how risk can be managed by support”.
The judge said that’s what he had in mind and that the evidence in front of him “doesn’t seem to me to exclude the possibility” (I think he meant the possibility of managing risk via supervised contact).
The next hearing will be listed, for two hours, in “four to six weeks from now” – so sometime between 11th and 25th November 2026, if everything goes according to plan.
Decision on deprivation of liberty
A community DOLS was currently in place to cover P’s residence and care at the Shared Lives home to which he’s been moved. The question of whether or not these arrangements constitute a deprivation of his liberty under Article 8 following AGNI was raised towards the end of the hearing.
Neither the local authority nor the Official Solicitor considers that P is currently deprived of his liberty under the new multi-factorial test. Mrs B, who does not know where he’s living or anything about his current care, “does not take a view” (counsel said).
The Official Solicitor asked whether “the court is minded to let the DOLS fall away”.
Judge: Remind me what the care arrangements are. He’s living in a family home – (wryly) though it might be said they are paid to care for him. Does it involve locked doors?
Official Solicitor: It does – but that’s a mere indication. There are lots of people post-AGNI who are actually deprived of their liberty physically but not deemed deprived of liberty in relation to Article 5. He’s happy. The local authority has set out reasons why this does not meet the multi-factorial test [NB I assume counsel means that these reasons are set out in the position statement that the Official Solicitor has refused to disclose but relies on here in oral argument.] This is very far from the paradigm of the prison cell. He’s accompanied whenever he goes out, but that for his benefit.
Judge: Was he under a community DOLS when he lived with Mr and Mrs B?
[The answer to that question was not forthcoming.]
Judge: It seems to me he clearly isn’t deprived of his liberty, applying the more holistic approach of AGNI.
It’s absolutely normal to see this type of fairly cursory judicial decision-making about deprivation of liberty when there is no disagreement between the parties.[5]
2. Shared Lives: “Paid to be family”
Shared Lives is a regulated adult social care and support model, often compared to adult fostering, delivered mostly through local council adult social care services, NHS budgets, or commissioned providers. Their purpose is to provide care for adults in the homes of people who are not their relatives. The NHS UK website about Shared Lives schemes says that they are “an alternative to traditional kinds of care, such as care homes”: adults with care needs are matched with an approved carer who “shares their family and community life”. The schemes are regulated in England by the Health and Social Care Act 2008.[6] The first Shared Lives scheme in the UK was launched in the mid-1970s under the name “Adult Placement” and changed to “Shared Lives” in 2008.[7]
Shared Lives schemes generally offer three different types of care: live-in (60%), short breaks e.g. for respite 31%, and day support (17%) [8].
The largest demographic group supported by Shared Lives is adults with learning disabilities, but schemes can include people with a diverse set of needs including autism, mental health issues, dementia, and care leavers needing to learn independent living skills.
Long-term live-in care, sometimes following on from foster-care arrangements once the child becomes an adult, is common[9], and cared-for adults sometimes live in the family home for years or even decades.
Today most local authorities in England operate or commission a Shared Lives scheme and they’ve been assessed as providing excellent quality care service (97% are rated as ‘Good’ or ‘Outstanding’ by the Care Quality Commission[10]) while also being cost-effective[11].
People who sign up for the Shared Lives schemes as providers or as recipients of care are actively encouraged to see it as becoming part of a family. Recruitment materials for local schemes repeatedly reiterate that ‘the person would become part of the carer’s extended family’(Tower Hamlets)[12], “a valued part of your family unit” (East Riding[13]), “part of the family” (Cumberland Council[14]). Shared Lives Plus, the national organisation promoting the scheme, uses the strapline on one of its videos “Start your shared life today and become part of a family again“[15].It reports that 97% of the people in Shared Lives felt they were part of the family most or all of the time.[16]
A video on the NHS ‘Shared Lives’ website features Dave and Pauline describing their experience as carers for two adults (71-year-old Alma and 57-year-old Keith – both with mental health issues and learning disabilities) who have lived with them for 19 and 13 years respectively. The video shows carers and care-recipients looking at family photographs together, watching television, and sharing a birthday celebration with grandchildren. They go on holiday together, and to events like weddings and christenings: Dave says, “they’re part of the family and all the things that go on in families from day-to-day”.
Familial and kinship terms are absolutely standard across Shared Lives schemes. “We’re his family”, says Debbie, a carer in Doncaster, who features, along with cared-for adult James, in one of a series of videos showcasing South Yorkshire Shared Lives schemes: “Not just the immediate family, but extended family members as well” (she adds). James agrees: “It’s nice to know that I’ve got all these people that care about me and love me and see me as family”. In the Sheffield video, Donna says something very similar: “They’re part of a family rather than a care system”, and Kayleigh, the cared-for adult who lives with Donna, agrees: “this is my home now, and the people who live here, they are my family”[17].
But it’s not just “family”: it’s also paid work.
“Your new career starts here” announces a red tab on the front page of Shared Lives Plus. Click on the tab and you are promised “a steady income” with “generous tax breaks”. In “The Financial Bit”, it’s explained that carers are self-employed and paid a weekly fee of between £350 and £650 per person, depending on the local authority and the person’s assessed care needs. This payment is subject to a favourable tax arrangement (“Qualifying Care Relief”), which can often mean no tax is paid. Carers also receive rent (on average £120 a week) and a housekeeping contribution of £60 to cover food, hot water and heating. Clothing, toiletries subscriptions and the like are paid from the person’s own money.[18] Nonetheless, the NHS does acknowledge that “Carers, as well as their families and friends, contribute a lot that is unpaid”.
Shared Lives carers in court (and Article 8)
People meeting the current definition of “Shared Lives carers) – i.e. people paid by the state to provide care and residence in their own homes for (unrelated) vulnerable adults – appear quite frequently in legal cases concerning disabled people, including in some of the landmark cases. The Bournewood Case (HL v United Kingdom) was initiated by Graham and Wendy Enderby who had been caring for HL under an “adult fostering scheme” in their own home for more than three years[19]. And in Cheshire West, “MIG” lived in an adult placement, and “was devoted to her foster mother (whom she regarded as her ‘mummy’))”.
I did a quick search and found that Shared Lives arrangements have cropped up quite frequently in the Court of Protection over the last few years, both in published judgments and in “unreported”[20] cases. Examples include: court oversight as former foster parents register to become Shared Lives carers (KL (A Minor: deprivation of liberty) [2022] EWCOP 24), a young person choosing (capacitously) to move from the family home to a Shared Lives placement (Re AG [2024] EWCOP 18); court consideration for a Shared Lives placement for a man in his 70s with alcohol related dementia[21] and a Shared Lives carer acting as P’s litigation friend in court.[22]
I’m surprised by the argument I understood the Official Solicitor (and local authority) to be making that, due to the financial arrangements underpinning Shared Lives carer, they cannot engage Article 8 rights to respect for private and family life.
Article 8, entitled “Right to Respect for Private and Family Life”, provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”
On my reading of the case law, it appears that the courts have taken the position that Article 8 rights are not automatic in fostering arrangements (either for adults or for children) but can arise as a consequence of the nature, duration and strength of the relationships formed as a result of them (see Moretti and Benedetti v. Italy, 2010, § 48; Kopf and Liberda v. Austria, 2012, § 37)[23].
There’s an important domestic case: G v E [2010] EWHC 621 (Fam), decided by Mr Justice Baker (as he was then). A 19-year-old learning disabled man (”E”) had been living with a paid carer (and her son) for ten years in the family home – initially under a foster care arrangement under section 20 of the Children Act 1989 and subsequently under an adult placement. He was removed from his carer by the local authority due to safeguarding concerns (allegedly abusing him by, for example, locking him in a wardrobe and striking him)[24]. The local authority subsequently placed E in a residential unit without adequately involving his adult carer (“F”) in the decision-making about his removal and future care[25]. Baker J found Article 8 had been breached: “.. the removal from F’s care, the failure to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter, the failure adequately to involve F in the decision-making process about E’s future, and the impediments to contact between E and F for several months after his removal constituted a serious breach of his Article 8 rights”. According to Baker, J, “It is beyond argument that E has been treated and has regarded himself as a member of F’s family – in the words of her counsel, he is “an integral part of family life“ (§8). Later: “Although E is unable to express himself in words with any clarity, he has clearly demonstrated that he loves F and regards her as his mother” (§126).
Baker J says” “There was, in my judgment, a deplorable failure to take into account the close relationship between E and F, the need to sustain that relationship, and a consequent failure to arrange any contact for several months between this vulnerable young man and the person who had been his carer – his mother-figure – for most of his life.” (§85).
Two general points made in the judgment:
- “Whether or not ‘family life’ exists depends upon the facts and the real existence of close personal ties […] In the words of Munby J. in Sheffield City Council v S [2002] EWHC 2278, “in our multi-cultural and pluralistic society the family takes many forms … The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family. But – and this is the point – the family, whatever form it takes, is the bedrock of our society and the foundation of our way of life.” It is well established that relationships between children and foster parents or carers fall within the definition of “family” within the meaning of Article 8 …” (§83)
- Article 8 gives the families of such adults (and by ‘families’ I include relationships between such adults and long-term foster carers) not only substantive protection against any inappropriate interference with their family life but also procedural safeguards including the involvement of the carers in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of the families’ interests. If they have not, there will have been a failure to respect the family life of the incapacitated adult (and of course the carer.) (§88)
The question of whether adult fostering arrangements can constitute ‘family’ life has also arisen in domestic law in the Court of Appeal in the very different context of immigration. (Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338). A young Bangladeshi adult, who had lived with his foster family for twelve years and had been denied leave to stay in the UK by the lower court because the “commercial arrangement” for the “mechanics of care” constituted by fostering was said not to engage Article 8. The Senior President disagreed:
In sum, both European and domestic case law seem (on my non-lawyer’s reading) to support the position that de facto “family” relationships can develop in the context of paid adult placement arrangements, and that these engage Article 8 protections.
I will be interested to hear (and I hope to read) the arguments relating to this at the next hearing.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project and an Honorary Professor in the School of Law and Politics at Cardiff University. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
Postscript: Transparency fails (again)
As is the case in well over 50% of the hearings I’ve observed in the last few months, there were no Gardner documents before the court (i.e no case summary, no chronology and no list of issues the judge was being asked to consider). I am grateful to the judge for providing an introductory summary which helped to fill that lacuna.
In the absence of Gardner documents, I requested Position Statements on the grounds that, without documentation, I would be unable to properly follow the hearing or to understand the basis on which the judge would make his decisions – in which case my access to the hearing itself would be transparency only in form and not in substance (as Nicklin J, Chair of the Ministry of Justice Transparency and Open Justice Board has put it). The parties unanimously declined to disclose their Position Statements to me despite the judge giving permission for them so to do.
It subsequently became clear in the course of the hearing that there was an “Addendum Position Statement” for P which I understood to present a legal argument against considering Shared Lives carers and the adults they care for (either in general, or this adult P in particular, I’m not sure which) to be “family”, in the sense of engaging Article 8 rights to protection of their private and family life. I asked (orally during the course of the hearing) whether this Addendum Position Statement could be disclosed to me, redacted to remove any personal material if necessary. The judge assured me that there was no personal material to redact – it merely sets out what the Official Solicitor considers to be the correct legal position.
This matter is likely to be addressed at the next hearing by which time counsel for the former foster/Shared Lives carers will have had time to consider and respond to the OS position. So, I followed up on my oral request with an emailed request to Oliver Lewis (copied to the other parties) on 14th October 2026 pointing out that I hoped to attend the next hearing in this case and would also be requesting the response from the other parties specifically in relation to the Article 8 point. I have had no reply. I am about to submit a COP 9 application for disclosure.
Endnotes
[1] For information about closed hearings and closed material hearings see the Vice President’s Guidance. I did not observe the closed hearing in this case, but another public observer did, and is prohibited by the Transparency Order from relaying to me “any information relating to the closed material application by the local authority and the closed material hearing on 6th August 2026 other than (a) that the local authority made an application for closed material (b) which was heard by Mr Justice Poole on 06 August 2026, and (c) a temporary closed material order was made” (§6(iii)). I have also been served with the same Transparency Order. This means that I cannot report what was said and done by the judge in relation to that closed material application at this hearing on 14th October 2026. I cannot see any reason for prohibiting me from reporting this information, and in fact I’m not sure that it was the intention of the applicant in drafting, or the judge in signing, the Transparency Order, to forbid me from doing so. Since I’ve not received any response to my email seeking clarification on this, I will make a COP 9 application to vary the TO to permit me to report on this. My understanding is that this clause in the TO was inserted as a reporting restriction against a different public observer who did observe the closed hearing of 6th August 2026 and that there was no intention to prevent me from reporting developments in relation to the closed material as relayed in public court on 14th October 2026. I am however cautious about determining the “intention” of the court in the light of what appears to me to be wording that clearly bans reporting. It may be that the TO would better reflect the intention of the court if it were reworded as follows: “..any information about the closed material hearing on 6th August 2026, which dealt with the closed material application by the local authority, other than…” and that is the variation I have requested. In the meantime, I have not disclosed “any information relating to the closed material application by the local authority” other than that expressly permitted by the Transparency Order.
[2] I have requested the approved order from the hearing as per COP Rules 2017, 5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public. I’ve been told this is not yet available. I am hoping that it will shed light on some features of the case that are currently opaque to me. If it does, I’ll update this blog post to reflect that.
[3] All quotations that purport to be reports of what was said in the course of the hearing are based on my touch-typed contemporaneous notes and they’re as accurate as I could make them but unlikely to be verbatim.
[4] I’m almost certain that this is the statute referred to by counsel, but when I looked it up after the hearing, I couldn’t find any such definition there. I eventually located something that sounds like the same definition of “family relationship” in a different statute: the Safeguarding Vulnerable Groups Act 2006, (Section 58(3) “A family relationship includes a relationship between two persons who live in the same household and treat each other as though they were members of the same family)”. It would have been useful had the party been willing to disclose their Position Statement as that would have enabled me to check this.
[5] Without position statements I am merely speculating, and these matters may have been addressed therein – but I do wonder whether P might be ‘objecting’ in so far as he is able to, about having been removed from his family home of nearly 17 years, and may also be ‘objecting’ to contact restrictions preventing him from seeing familiar people he’d become accustomed to and might relate to as ‘family’. In the case of G v E [2010] EWHC 621 (Fam)), it was reported that the protected party was missing his “mummy” (the adult placement carer) and also her son, with whom he’d grown up (§33). Both removal from the family home and contact restrictions are features of a vulnerable person’s residence and care arrangements that the courts have taken seriously in determining deprivation of liberty. It’s depressing to see how swiftly the “safeguards” put in place for vulnerable people are being dismantled as a result of the AGNI judgment – even though, in my own family experience, it was clear that they were often ineffective (Polly and AGNI: A family reflection on deprivation of liberty).
[6] In Wales, the relevant statutes are the Adult Placement Scheme (Wales) Regulations 2004 Social Services and Well-being (Wales) Act 2014 and the regulator is Care Inspectorate Wales (CIW).
[7] Scotland and Northern Ireland also have “Shared Lives” schemes. Similar models outside the UK are generally known as ‘adult foster care’. In the USA: “AllThrive365” https://allthrive365.org/resources/adult-foster-care-what-is-it-and-how-can-you-get-involved/ and “CareForth” https://careforth.com/blog/what-is-adult-foster-care/. In Finland: Leinonen E. Caring in space: the boundaries between public and private spaces in Finnish adult foster care homes. Ageing and Society. 2021;41(5):1184-120. In France: Chammem R, Domi S and Schott AM (2021) Perceptions and Experiences of Older Persons in Two Types of Institution in France: Foster Care Family Institution and Medico-Social One. Front. Public Health 9:684776. doi: 10.3389/fpubh.2021.684776. In Guadaloupe and Martinique: Boucaud-Maitre, D. et al. 2024, Comparison of quality of older life of older adults living in foster families versus nursing homes, Journal of Nutrition, Health and Ageing 28(10)
[8] https://www.local.gov.uk/publications/developing-shared-lives-people-learning-disability
[9] Worcestershire County Council has a useful explanation of how this works in practice, and some guidance about the legal differences between foster care and shared lives care https://www.worcestershire.gov.uk/sites/default/files/2025-04/Transitioning%20from%20Foster%20Care%20to%20Shared%20Lives%20v1.5%20%282%29.pdf
[10] https://sharedlivesplus.org.uk/our-work/research-and-reports/shared-lives-outcomes-and-quality/ and https://www.local.gov.uk/publications/developing-shared-lives-people-learning-disability
[11] A 2023 survey by ADASS found that 87 per cent of Directors of Adult Social Care “are of the opinion that greater availability of Shared Lives would reduce or significantly reduce adult social care expenditure”. Research conducted by Shared Lives Plus in 2024 shows that Shared Lives can save £12,000 to £26,000 per person, per year for people with a learning disability, compared to supported living or residential care.
[12] Tower Hamlets Shared Lives scheme https://www.towerhamletsconnect.org/information-and-advice/caring-for-someone/shared-lives/what-is-shared-lives/?utm_source=chatgpt.com
[13] East Riding Shared Lives Scheme https://www.eastriding.gov.uk/adult-social-care/caring-for-someone/shared-lives-carers/about-the-shared-lives-carer-role/?utm_source=chatgpt.com
[14] Cumberland Council shared lives scheme https://www.cumberland.gov.uk/health-and-social-care/care-services/shared-lives/how-get-support-through-shared-lives
[15] (https://www.youtube.com/watch?v=Zx02T23F8II&t=77s)
[16] https://sharedlivesplus.org.uk/our-work/research-and-reports/shared-lives-outcomes-and-quality/
[17] Film called “Family, Belonging and Shared Lives”.
[18] (https://heyzine.com/flip-book/3089f4b7bd.html#page/14; see also https://heyzine.com/flip-book/3089f4b7bd.html#page/14)
[19] Before moving to live with the Enderbys, HL had spent over 30 years in Bournewood Hospital. He was returned there after an incident at his day care centre, and the Enderbys were forbidden to visit him. The domestic judicial review proceedings challenged his admission and continued detention as unlawful. Further domestic proceedings in the Court of Appeal and House of Lords led eventually to the European Court of Human Rights (ECHR) whose judgment exposed the lack of adequate legal safeguards for people who lack the capacity to consent to their admission to hospital but do not actively resist it – a gap in legal protection that became known as the ‘Bournewood Gap’ and prompted the introduction of the Deprivation of Liberty Safeguards (DoLS), inserted into Schedule A1 of the Mental Capacity Act 2005. For more information about the case and the Enderbys’ role in it, see the BBC podcast on “The Legacy of Bournewood”; the article “Making sense of Bournewood” by Robert Robinson (Graham Enderby’s solicitor) and Lucy Scott-Moncrieff, Journal of Mental Health Law, May 2005; and obituaries of Graham Enderby (e.g. https://www.theguardian.com/society/2020/mar/11/graham-enderby-obituary; https://www.peteredwardslaw.com/latest/an-appreciation-of-the-life-of-graham-enderby/)
[20] In legal terminology, an “unreported” case is one where there’s no official published judgment – even though there may be a transcript of the proceedings, and even though they have may been reported by lawyers and court reporters. The vast majority of law cases are “unreported”.
[21] Improving P’s quality of life pending a s.21A change in residence
[22] Surgery for scoliosis when P indicates he doesn’t want it
[23] The Guide on Article 8 of the European Convention on Human Rights also states: “Where either family life is not found or no breach is found regarding the right to respect for family life, Article 8 may still be applicable under its private life head (Paradiso and Campanelli v. Italy [GC], 2017, § 165; Lazoriva v. Ukraine, 2018, §§ 61 and 66 concerning the applicant’s nephew; Azerkane v. the Netherlands, 2020, § 65; C.E. and Others v. France, 2022, § 99). The applicants’ “private and family life” can also been affected along with the right to respect for home (see, for example, Paketova and Others v. Bulgaria, 2022, § 153).” §349
[24] By the time of the judgment, the safeguarding investigation had been completed with an “inconclusive” outcome and the police had said they were taking no further action. The local authority had also raised concerns about F’s management of E’s finances. The judge doesn’t address this in detail but says, “I found nothing in it to suggest that there was any reason to question F’s honesty. No doubt she has found some of the rules and procedures obscure and difficult to understand”(§49). Her convictions for shoplifting were also raised – including the fact that she had dishonestly stated to the court she had only one conviction when in fact she had four.
[25] The judgment quotes from a letter sent by the local authority to F’s solicitors which echoes the oral arguments I heard in the case before Poole J: “whilst we appreciate that your client may have developed a positive and strong relationship with E over the past ten years, she is not a family member and she was financially remunerated for the services she provided to E” (§84).
