This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.  For the avoidance of doubt in any report of this judgment the First Respondent may be referred to as “Katherine”.

Case No: 12488518
Neutral Citation Number: [2015] EWCOP 13
COURT OF PROTECTION

Leeds Civil Hearing Centre
Coverdale House, Leeds, LS1 2BH

Date: 13 March 2015
Before :

MR JUSTICE MOSTYN
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Between :

Rochdale Metropolitan Borough Council		Applicant

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(1)  KW (by her litigation friend Celia Walsh)
(2)  PK
(3)  MW								Respondents

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Mr Samuel Skinner (instructed by Rochdale MBC Legal Services) for the Applicant
Mr Adam Fullwood (instructed by Peter Edwards Law LLP) for the First Respondent 
The Second and Third Respondents were neither present nor represented

Hearing date: 2 March 2015
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Judgment
Mr Justice Mostyn: 
1.	On 18 November 2014 I handed down my principal judgment and it was immediately placed on Bailii: Rochdale Metropolitan Borough Council v KW & Ors [2014] EWCOP 45.
2.	In paras 25 and 26 I held, applying the law to the facts as I found them, that:
"It is my primary factual finding that in Katherine's case the second part of the acid test is not satisfied. She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom. 
I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged."
3.	Earlier, at para 22 I had stated:
"Katherine's ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves."
This was not a finding of fact on which my decision depended. Far from it. It was a hypothetical scenario used by me to stress-test the principal argument that Katherine was being detained by the State. The factual basis on which I made my finding was set out in para 6 as follows:
"Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back."
4.	It was from first to last a judgment on the merits. I will explain the significance of this later in this judgment. It was also, I like to think, an important decision and it was for this reason that I expressed the view that the matter should be reconsidered by the Supreme Court (see para 27). However, the applicant council did not give the necessary consent for a leap-frog straight to the Supreme Court and I therefore granted KW permission to appeal to the Court of Appeal (see paras 31 and 32).
5.	My order dated 18 November 2014 contained a recital as follows:
"The applicant seeks a determination from the Court as to whether its involvement in KW’s care plan in her home is sufficient to engage Article 5 of the European Convention on Human Rights in her favour. The first respondent asserts that it does."
Paras 5 and 6 of my order provided that:
"5.	It is in KW’s best interests to reside at (address redacted) and there to receive a package of care in accordance with her assessed needs.
6.		That package of care does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights."
Para 11 of my order provided that:
"Permission is granted to the first respondent to appeal to the Court of Appeal against para 6 of this order." 
6.	On 17 December 2014 I handed down my judgment in The London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 53. There I sought further to explicate my reasoning particularly by reference to the decision of the European Court of Human Rights in Price v. The United Kingdom [2001] ECHR 458, a decision not referred to by the Supreme Court in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19, [2014] 1 AC 896. 
7.	The appeal was fixed for a full oral hearing on 4 or 5 February 2015. However, on 30 January 2015 the Court of Appeal allowed the appeal against my decision by consent and without a hearing purportedly pursuant to the terms of CPR PD52A para 6.4. Its order provided as follows:
"UPON reading the appeal bundle filed with the court.
AND UPON the Respondent confirming that it does not intend to oppose the appeal
IT IS ORDERED that:
1. 	This appeal is allowed.
2. 	For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW's liberty, such deprivation of KW's liberty is hereby authorised.
3. 	If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes. 
4. 	If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made. 
5. 	In any event. Rochdale Council must make an application to the Court no less than one month before the expiry the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.
6. 	Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.
7. 	"The review period" shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.
8. 	Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as "KW" until further order pursuant to section 12 of the Administration of Justice Act 1960.
9. 	There shall no order for costs between the parties.
10. There shall be a detailed assessment of KW's public funding costs." 
8.	Attached to the order was a piece of narrative, prepared by counsel for the appellant, which provided as follows:
"Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.
The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors [2014] UKSC 19; [2014] AC 986 ("Cheshire West") to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own." 
9.	On  3 February 2015 I directed that this hearing should take place for: 
"Directions as to the scope of (and reasons for) the additional obligations imposed on this court by virtue of the consent order made by the Court of Appeal on 30 January 2015."
Earlier on 2 February 2015 I had directed that this case should be reserved to me. 
10.	CPR 52.11(3) provides:
"The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."	
11.	CPR PD52A para 6.4 provides for a very limited derogation from this simple and necessary rule. It is headed "SECTION VI – DISPOSING OF APPLICATIONS AND APPEALS BY CONSENT" and provides:
"Allowing unopposed appeals or applications on paper
6.4  The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order." 
12.	It can be seen that the strict terms of CPR 52.11(3) are modified by the deployment of the adverb "normally" in the first sentence. In the second sentence the sole exception to the primary rule is spelt out. An appeal may be allowed by consent "without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing". Therefore it follows that this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits.
13.	One can see the need for this provision. Following the first instance decision there may have been a change in the law deriving from legislation or a binding decision of a higher court. In such a case it would be necessary to set aside the original decision without a determination on the merits. Similarly, a procedural order may require to be set aside without a determination on the merits because of a change of circumstances or a mistake. It is impossible to see however how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement of legal principle in relation to the facts as found. 
14.	My limited researches in the field of family law reveal that where a merits based decision has been reached at first instance, which all parties agree should be set aside on appeal, then there is a hearing and a judgment. This is consistent with the only reasonable interpretation of para 6.4. The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise. Thus in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412 Thorpe LJ held as follows:
"1.	In a judgement handed down on 23 June 2008, Charles J dismissed an application brought by the wife to set aside a consent order reached on 20 July 2006 at an FDR appointment determining her claims for ancillary relief for herself and the two children of the family.
2.	Charles J dismissed the wife's application and refused her permission to appeal. Her application for permission was renewed to this court by a Notice of Appeal dated 7 August 2008. Wilson LJ granted permission to appeal on 30 October 2008, and that appeal was listed for hearing today and tomorrow, 4 and 5 March 2009.
3.	At the outset Mr Martin Pointer QC and Mr Jonathan Cohen QC, representing respectively the wife and the husband, informed the court that the parties had reached a comprehensive agreement to settle not only the appeal but also pending or prospective applications for the variation of the order of 20 July 2006.
4.	The agreement reached between the parties invited the court to allow the appeal, set aside the order of 20 July 2006, and to make revised orders on the wife's applications.
5.	A short disposal might have followed but for our concern that the judgment below had already been reported at [2008] 2 FCR 527 and at [2009] 1 FLR 2001 and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief."
Thorpe LJ then went on to give a full judgment explaining why Charles J had fallen into error. 
15.	Similarly, in the recent decision of Re S-W (Children) [2015] EWCA Civ 27 it was recorded at para 4 that: 
"Neither Liverpool City Council nor the children's guardian seeks to uphold the orders made. All parties are therefore agreed that the appeal should be allowed and that the matter should be remitted to Her Honour Judge de Haas QC, the Designated Family Judge for Liverpool." 
16.	Three full judgments followed explaining why Judge Dodds had fallen into error. Again, this was the least he could have expected and a reasoned judgment would have the effect of preventing similar mistakes in the future. 
17.	The reason why in neither of these cases the Court of Appeal exercised its powers to deal with the appeal on paper, without a hearing, and by consent pursuant to para 6.4 was that in each instance it involved a determination on the merits that the judge was wrong. Therefore in each case the circumstances fell outside para 6.4. 
18.	The researches of counsel, undertaken after argument was concluded before me but before this judgment was handed down,  have not revealed any case where a fully reasoned decision has been overturned on the merits by consent and without a judgment. This is not surprising. 
19.	In this case the appeal was against para 6 of my order, which reflected the terms of my judgment, that the package of care provided to Katherine does not amount to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. That was the centrally, if not the only, relevant component of my judgment. It was its very ratio decidendi. By para 1 of the Court of Appeal order the appeal is allowed. That is plainly a determination on the merits. It could not be anything else. But such a determination on the merits does not fall within para 6.4.
20.	If this determination does not fall within para 6.4 then there has to be a judgment explaining why my decision was wrong (no-one has suggested that it was procedurally unjust). But there is no judgment. Mr Fullwood agrees that the annex to the order is not a judgment. So I do not know why my jurisprudential analysis in this case as augmented in the Tower Hamlets case is said to be wrong. The narrative in the annex does not say anything other than that I was wrong, aside from a mere assertion that I made a material error as to Katherine's downward path in terms of her mobility, which, as I have explained above, was immaterial to my decision. 
21.	At this point it is relevant to refer to para 6.5 of PD52A. This provides:
"Disposal of applications and appeals involving children or protected parties
6.5  Where one of the parties is a child or protected party, any disposal of an application or the appeal requires the court’s approval. A draft order signed by the parties’ solicitors should be sent to the appeal court, together with an opinion from the advocate acting on behalf of the child or protected party and, in the case of a protected party, any relevant documents prepared for the Court of Protection."
I have not been told of the existence of an opinion of the advocate acting for KW. Had there been one it may well have enlightened me about my supposed error. If one does not exist, as I infer, then that is another reason why the consent order made by the Court of Appeal was procedurally flawed. 
22.	Even though the Court of Appeal appears to have taken a procedurally impermissible route, the rule of law depends on first instance judges complying scrupulously with decisions and orders from appellate courts. And so I must here, even if I happen to think that the order of the Court of Appeal is ultra vires. The allowing of the appeal should be construed as setting aside para 6 of my order, even if it does not actually say so. But does the order replace it with a declaration that Katherine is being deprived of her liberty? It does not explicitly say so, which is highly surprising. Further, para 2 of the order is phrased in highly ambiguous language. It says "to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW's liberty, such deprivation of KW's liberty is hereby authorised." The use of this conditional language suggests to me that Court of Appeal has not actually decided that this is a situation of state detention. What they are saying that if it is then it is authorised. In my judgment para 2 of the order does not amount to a declaration that Katherine is being deprived of her liberty. 
23.	It therefore seems to me that we are back to square one with no-one knowing whether Katherine is, or is not, being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order. Pursuant to para 6 I now direct that any review hearing will be conducted by me at an oral hearing and on the basis of full fresh evidence concerning Katherine's circumstances. Until then Katherine's status must be regarded as being in limbo.
24.	For the avoidance of any doubt it is my finding that the hearing ordered by para 5 of the Court of Appeal order is not a review of  a determined situation of state detention but is, rather, a hearing de novo to determine if one exists.
25.	Further, it is my ruling that a hearing under paras 3 or 4 can only be triggered if the restrictive changes proposed amount to bodily restraint comparable to that which obtained in P v Cheshire West and Chester Council. Any restrictions short of that will amount to no more than arrangements for her care in her own home and would not, consistently with my previous judgments, amount to state detention. Therefore, in such circumstances there would be nothing to review under paras 3 and 4. 
26.	It will be apparent from what I have written above that in the absence of a reasoned judgment from the Court of Appeal explaining why I was wrong I maintain firmly the correctness of my jurisprudential analysis in my principal decision as augmented in my Tower Hamlets decision. In this difficult and sensitive area, where people are being looked after in their own homes at the state's expense, the law is now in a state of serious confusion.