Re PK and MK (Article 8 protections): Court of Protection ends case after Article 5 falls away

The Court of Protection has brought proceedings concerning two young women to a close after finding they are not deprived of their liberty, while making clear that the court's involvement should not end until independent advocacy is in place.

In Re PK and MK (Article 8 protections) [2026] EWCOP 52 (T2), His Honour Judge Burrows, sitting at Tier 2, dealt with twin sisters with significant disabilities who both lack capacity to make decisions about residence, care, contact and litigation. Their needs and the way they are met were agreed. The local authority sought to end the proceedings, and the only live question was whether the arrangements engaged Article 5 of the ECHR.

Article 5 and the Supreme Court's reference

Applying the Supreme Court's decision in the Northern Ireland devolution reference [2026] UKSC 16, which overruled Cheshire West, the judge agreed with the local authority and the Official Solicitor that the sisters are not deprived of their liberty. Although the arrangements include supervision, locks and restrictions on leaving unaccompanied, he described the setting as far removed from a paradigm place of detention. It is a home in which both can personalise their space, see family regularly and spend overnight time with their mother each week. The restrictions exist to deliver care safely, and nothing in their behaviour could be read as objection to their situation. The close bond between the sisters was treated as a welfare benefit actively promoted by the care plan.

The judgement notes that this is one of several cases before the judge in which parties want the court to decide the Article 5 question so that proceedings can end. It refers to related recent decisions, including Mustafa, Oxfordshire County Council v P and the judge's own decision in Salford City Council v AR.

Article 8 submissions

Before closing the case, the judge invited written submissions on whether Article 8 required any continuing court oversight. The Official Solicitor, acting separately for each sister, took different positions. Counsel for PK argued that, with Article 5 protections gone, an advocate was essential to review the effect of the restrictions periodically. Counsel for MK went further, contending that a mechanism independent of the local authority was needed to review the necessity and proportionality of ongoing restrictions, relying on Nikolyan v Armenia. The sisters' mother also made submissions.

Judge Burrows rejected the argument for an independent mechanism beyond the statutory scheme. He observed that Article 8, unlike Article 5, does not expressly require court involvement, and that Parliament has sought to protect Article 8 rights through the Children Act 1989, the Mental Capacity Act 2005 and the Care Act 2014. He found Nikolyan, which concerned a rigid regime removing legal capacity entirely, of limited relevance. The sisters were instead covered by an integrated framework of wellbeing duties, participation, care planning, review, safeguarding and independent advocacy under section 67 of the Care Act.

The judge drew on the Court of Appeal's recent decision in TDB v London Borough of Haringey [2026] EWCA Civ 1184, which stressed that the Care Act and the MCA operate together and that independent safeguards matter in practice. He accepted that Article 8 does not invariably require independent court review. He did, however, warn that the absence of advocacy may weaken the practical protection otherwise available. Where a family member is unwilling or unsuitable to support the person, or the person would not want them to, a Care Act advocate is likely to be needed. He contrasted AR, where concerns about the family's role at the final hearing had been met by arranging an advocate, a matter he saw as lying within the Care Act jurisdiction rather than the Court of Protection.

Confirmation of advocacy

At the draft stage, the judge was not persuaded that a further review hearing was required, but he asked the local authority to clarify the advocacy position. It was understood that MK already had an advocate, while PK's position was unclear. The authority later confirmed that both sisters had been referred for Care Act advocacy, and it agreed to return the matter to court if advocacy did not materialise.

Satisfied that the practical safeguards were in place, the judge concluded that the proceedings could end.

The sisters' anonymity is protected by transparency orders made in March 2026.