Here’s the story about a father, an autistic son and a ‘Kafkaesque nightmare’ that resembles many stories of abusing power in positions of institutions and ‘authorities’.
Jackson J referred first to a “basic legal principle found in an era long before the invention of local authorities as we know them” – chapter 29 of Magna Carta 1297, which provides “no freeman shall be taken or imprisoned or disseised of his…liberties…but by lawful judgment of his peers or by the law of the land“. Jackson J went on to declare that this fundamental constitutional right:
…will certainly not lose its importance in the field of adult social care, with an ageing population increasing the responsibilities of families and the State. Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for their family life where it exists. The burden is always on the State to show that an incapacitated person’s welfare cannot be sustained by living with and being looked after by his or her family, with or without outside support.
The local authority argued that Steven was not deprived of his liberty from January to April 2010, a submission which Jackson J gave short shrift to. The local authority then argued that from April to December 2010 the DOL authorisations clothed the detention in legality. Jackson J was entirely unconvinced by this as well, holding that:
The authorisations relied upon were flawed, and even if they had been valid, they would not in themselves have amounted to lawful authority for keeping Steven at the support unit. It follows that Hillingdon had no lawful basis for keeping Steven away from his home between 5 January 2010 and 23 December 2010. The fact that it believed that it was acting for the best during that year is neither here nor there. It acted as if it had the right to make decisions about Steven, and by a combination of turning a deaf ear and force majeure, it tried to wear down Mr Neary’s resistance, stretching its relationship with him almost to breaking point. It relied upon him coming to see things its way, even though, as events have proved, he was right and it was wrong. In the meantime, it failed to activate the statutory safeguards that exist to prevent situations like this arising.
- Local authority unlawfully detained autistic man (alisonsgypt.wordpress.com)
- You: Local authority unlawfully detained autistic man (guardian.co.uk)
- Autistic man ‘unlawfully detained’ (mirror.co.uk)
- Autistic man ‘let down’ by council (mirror.co.uk)
- Autistic man ‘let down’ by council (independent.co.uk)
- A father’s right to love (independent.co.uk)
- Autistic man ‘detained unlawfully’ (mirror.co.uk)
- Mark Neary: victory over autistic son, 21, ‘trapped in care’ (telegraph.co.uk)
- High Court to decide if autistic man was illegally detained (independent.co.uk)
- Inspection of local authority fostering services and independent fostering agencies (vickyhaigh.wordpress.com)