This case was an appeal from a first instance decision which considered whether two girls, MIG (aged 18) and MEG (aged 17), both with moderate to severe learning disabilities had been deprived of their liberty within the meaning of the Deprivation of Liberty Safeguards. Both were under continuous supervision and control for their own care and both lacked capacity to make decisions about their care and residence.

There was concern that the first instance decision which included references to “intention”, ”purpose”, “motivation” and “reasons” for the care arrangements confused the fundamental distinction between whether an objective deprivation of liberty existed and the secondary question of whether it could be justified and lawful as being in the person’s best interests.

The Court of Appeal (Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG (2011) EWCA Civ 190) agreed that neither girl was being deprived of their liberty, but took a significantly different approach to the reasons for this than the first instance judge, Judge Parker.

The Court of Appeal found that a person’s happiness is not relevant to whether s/he is being deprived of their liberty. However, it is relevant to consider if a person objects to the confinement because this is likely to lead to conflict and confrontation.

It was inappropriate to take into account the fact that the “purpose” of the care package was to further the person's best interests. On the other hand, the “relative normality” of the arrangements was very important.

It was significant that both girls had good outside social contact and went out for trips and for education, giving them something like a “normal” daily balance between education and home.

The main development in this case is the move from consideration of “purpose” and “reasons” to an emphasis on issue of the “relative normality” of the placement.

Leave has been given to appeal to the Supreme Court in this case.