In Re PK & MK (Article 8 protections) [2026] EWCOP 52 (T2), HHJ Burrows picked up and developed a theme from his previous two decisions relating to deprivation of liberty after AGNI, namely the scope and requirements of Article 8 ECHR in a case where it has been found that P is not deprived of their liberty. PK and MK were two such Ps (twin sisters). The Official Solicitor acted, separately, for both sisters, and argued (in agreement with the .local authority) that neither sister was deprived of their liberty; HHJ Burrows agreed, holding (at paragraph 17) that:
There is no doubt that the setting in which PK and MK live is some way from the paradigm place of detention identified by the Supreme Court. It is a place in which both young women are as at home as could be possible for people with their needs and disabilities. They are able to personalise the placement. They are able to enjoy contact with their family there. The purpose of the restrictions upon them is entirely to enable them to receive care in a safe manner. It is a “relatively normal” setting for young women with their level of need. They appear not to object. Clearly there are challenging behaviours at times, but there is no way those are or could be interpreted as objections to their concrete situation or the physical environment of the placement itself. Above all, perhaps, they have each other. They are in the most profound biological and psychological sense each other’s closest relative. They appear to enjoy living together and have a unique bond as twins.
That left Article 8, on which HHJ Burrows invited written submissions. In his judgment, he started the material section by summarising the position in relation to protections outside Article 5 ECHR:
29. Unlike Article 5, Article 8 does not explicitly require the involvement of a Court. However, Article 8 issues arise on a very frequent basis within the health and social care sector. The approach taken by the Government in seeking to ensure Article 8 rights are protected has been through a series of legislative provisions, mainly the Children Act 1989 (and related legislation), the Mental Capacity Act 2005, and Care Act 2014.
30. The Care Act 2014 provides a substantial framework of protection for vulnerable adults, and particularly for those who lack capacity to make relevant decisions. The scheme is founded on the promotion of wellbeing under s.1, including personal dignity, protection from abuse and neglect, control over day-to-day life, participation in community life, and domestic, family and personal relationships. It requires the involvement of the person concerned and those interested in their welfare in assessment and care planning (ss.9 and 25), mandates continuing review of care and support plans (s.27), provides for independent advocacy where individuals would otherwise experience substantial difficulty participating (s.67), and imposes safeguarding duties where abuse or neglect is suspected (s.42).
31. In TDB v London Borough of Haringey [2026] EWCA Civ 1184 (which was handed down as I wrote this judgment), the Court of Appeal emphasised that the Care Act and the Mental Capacity Act 2005 operate together in securing the rights and wellbeing of vulnerable adults, and that issues of capacity, participation, autonomy and the minimisation of restrictions are integral to lawful assessment and care planning. The Court stressed that local authorities must have a clear understanding of an individual’s capacity where relevant to the assessment of needs, and that the statutory framework is directed towards ensuring practical and effective protection of the individual’s rights, wishes, welfare and participation in decision-making.
32. In TDB, Baker, L.J. considered that wellbeing under s. 1 of the Care Act 2014 cannot properly be assessed without specifically linking P’s control over day-to-day life, participation in decision making, family relationships and restrictions on freedom. It is by that mechanism that the rights of vulnerable people are protected under the domestic legislative scheme in England and Wales.
33. Ms Kelly’s submission is that there needs to be an independent safeguard and that cannot be achieved where the State (in the guise of the Local Authority) which imposes and operates the restrictions on P and is also the sole judge of their continuing proportionality. This is the principle enunciated in Nikolyan v Armenia (Application no. 74438/14, 3rd October 2019).
34. Much as I hesitate to reject Ms Kelly’s submissions on anything related to the Care Act 2014, in so far as she argues for there to be an independent agent involved other than the State, I do reject what she submits.
35. In Nikolyan v Armenia, the ECtHR found a violation of Article 8 where a man had been wholly deprived of legal capacity under a rigid statutory scheme that provided only a binary choice between full capacity and complete incapacity. The Court criticised the absence of any tailored or intermediate measures, the failure to analyse the degree of the applicant’s impairment in sufficient detail, reliance upon an outdated psychiatric assessment, and the lack of adequate mechanisms for review and safeguarding against conflicts of interest. The Court emphasised that measures affecting legal capacity and personal autonomy must be proportionate, individualised, supported by effective safeguards, and subject to regular review by a competent authority.
36. In my judgment, however, the relevance of that case to PK and MK is limited. Unlike the position in Armenia, these proceedings do not concern the wholesale removal of legal capacity, nor a statutory regime lacking review mechanisms or safeguards. Rather, PK and MK are protected by the integrated framework of the MCA and the Care Act 2014, including duties of wellbeing, participation, care planning, review, safeguarding and independent advocacy. To that extent, the concerns identified in Nikolyan are largely addressed by the domestic statutory protections available to them.
37. That being said, in TDB, Baker, LJ focused on the need for independent safeguards within the operation of the Care Act. He refers to s. 67 of the Act and the Statutory Guidance (at [43]) which emphasises the need for a Care Act Advocate where there is no suitable family member. He was also concerned by issues of good practice at the coal face amongst professionals. Those concerns related to capacity assessments and are very unlikely ever to be relevant to this case, where incapacity of a profound degree will be permanent.
On the facts of the cases before him, HHJ Burrows considered that:
38. In my judgment, the provisions of the Care Act and the MCA are adequate protections in this case. The situation will likely be different in other cases. In AR, for instance, there was an issue, present at the time of the final hearing that concerned the Court, namely the position of AR’s parents towards those managing his welfare and their (the parents’) role in his life. The LA there ensured there would be an independent advocate at least for the first year. That may continue. But that is a matter for the Care Act jurisdiction, it seems, and not this Court.
39. In this case, there is no doubt that the provisions of the Care Act and MCA apply. It seems to me a Care Advocate will be needed in this case if their mother either does not wish to perform that role, is unsuitable to do so, or (and this seems unlikely) where PK and/or MK do not wish her to perform that role.
41. As I understand it MK has a Care Act advocate. In PK’s case it is less clear. Both need one, it seems to me. I directed that the LA clarify this by no later than 4 p.m. on 2nd October 2026.
42. At the time I completed my draft judgment, I was not persuaded that a further review hearing was required. However, before reaching a final determination on that question, I wished to be satisfied that the practical and effective safeguards upon which I rely are actually in place.
43. I therefore said this. The existence of an independent advocate may be of significance. As the Court of Appeal emphasised in TDB v London Borough of Haringey [2026] EWCA Civ 1184, participation, support and independent advocacy form important components of the statutory protection afforded to vulnerable adults under the Care Act 2014. Whilst I do not accept that Article 8 invariably requires independent review by the Court, the absence of independent advocacy may, depending on the circumstances, weaken the practical protection otherwise available. I therefore required clarification of the advocacy arrangements before deciding whether the existing framework provided sufficiently effective safeguards for the Article 8 rights of PK and MK.
44. When the draft was returned with corrections and clarification requested the Local Authority confirmed that both young women had been referred to Care Act advocacy. At my request, it was agreed that the Local Authority should refer the matter back to the Court in the event that no such advocacy was to materialise.
Comment
HHJ Burrows is undoubtedly taking the lead as regards the development of a body of judicial consideration of the world after AGNI. Three points arise from this most recent judgment:
- It is well-established in Strasbourg case-law that the implied procedural protections in Article 8 are aimed at giving a person a degree of involvement in decisions affecting their private and family life that is sufficient to protect their interests, the requisite degree of involvement being calibrated to the circumstances of the case, and the seriousness of the interference with the rights that the article protects.[1] It was this need for English law better to recognise this which motivated both the changes in the Mental Health Act 2025 in relation to compulsory mental health treatment, and the changes proposed by the Law Commission in relation to the operation of s.5 MCA 2005.[2]
- HHJ Burrows was clearly right to say that the extent to which Article 8 requires a degree of ongoing scrutiny by an external body will depend on the factual circumstances of the case (a difficult issue may well arise here, as noted in relation to the BM case as to who would pay for such scrutiny if it has to involve the court)
- However, where the view has been taken that (1) Article 8 ECHR is engaged such as to give rise for a need for procedural protections; and (2) that need can be met by the involvement of advocacy, I suggest that it is important that the court is clear as to the basis upon which that advocacy is provided. Unless it is clear that there is a statutory power grounding its provision in the case before the court, the latter cannot be satisfied that any procedural protections will be effective to secure the Article 8 ECHR rights that it has identified as being engaged. As desirable as it would be, I have serious doubts as to whether there is the power to appoint a Care Act advocate simply on a ‘rights protection’ basis. The duties to appoint an advocate under s.67 are limited to specific situations which are not obviously those covered by those envisaged by HHJ Burrows in this case; whilst it is possible to appoint an advocate to meet care and support needs (see s.8(1)(a) Care Act), there will be hoops to jump through to explain how ‘rights protection’ satisfies the statutory eligibility criteria.
I hope that there can be a judgment soon (whether from HHJ Burrows or otherwise) which can: (1) set out the necessary chapter and verse (provided by the local authority before the court) as to the basis upon which that local authority has appointed a Care Act advocate; and (2) why that chapter and verse satisfies the judge that advocacy will actually be available so as to satisfy them that the court does not need to keep a watching brief on the case so as to satisfy its obligations under Article 8 ECHR.
[1] See, in addition to the case cited to HHJ Burrows, Shtukaturov v Russia [2012] EHRR 27 and (in relation to a regime much closer to that of England & Wales) AM-V v Finland [2017] ECHR 273).
[2] See Chapter 14 of the Law Commission’s Mental Capacity and Deprivation of Liberty report.
