Deprivation of liberty etc.

Case no. BS-4442/2019-HJR
and case no. BS-4446/2019-HJR
Order of 12 February 2020

A
vs.
Fonden Sparta

and

A
vs.
The Municipality of Odense

In February 2014, the National Social Appeals Board decided that A should be placed outside of his home until his 18th birthday in August 2014. After A had left several of the homes in which he had been placed, the Municipality of Odense and Fonden Sparta decided that A should be placed in a holiday cottage on the island of Endelave. He stayed there from 15 April to 25 May 2014.

The issues in the case were whether the placement of A amounted to unlawful deprivation of liberty or unlawful interference with his liberty of movement, and whether he was then entitled to compensation for injury to his feelings.

Among other things, the Supreme Court gave importance to the facts that, when A arrived on the island on 15 April 2014, the parish bailiff ushered A to the holiday cottage by speaking to him and by taking his hand, and that, when A tried to board the ferry from Endelave the next day, the parish bailiff told him that he was not allowed to go, and possibly put an arm around his shoulder and a hand on his arm. The Supreme Court also considered the fact that the staff of Fonden Sparta had followed A closely, especially during the first days of his stay, and told him in that connection that if he wanted to leave the island, they could not physically prevent him from doing so, but that they would ask the police to arrest him and bring him back.

The Supreme Court held that this did not go beyond the limits of authority applicable at that time as part of the general duty of care to be exercised in the implementation of out-of-home placement decisions. It also did not amount to deprivation of liberty or interference with the liberty of movement and the freedom to choose his residence in contravention of the European Convention on Human Rights.

The High Court had reached the same conclusion.