95. For present purposes I can summarise my conclusions as follows. Where the State – here, a local authority – knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual that arguably give rise to a deprivation of liberty, then its positive obligations under Article 5 will be triggered.

i) These will include the duty to investigate, so as to determine whether there is, in fact, a deprivation of liberty. In this context the local authority will need to consider all the factors relevant to the objective and subjective elements referred to in paragraph [48] above.ii) If, having carried out its investigation, the local authority is satisfied that the objective element is not present, so there is no deprivation of liberty, the local authority will have discharged its immediate obligations. However, its positive obligations may in an appropriate case require the local authority to continue to monitor the situation in the event that circumstances should change.iii) If, however, the local authority concludes that the measures imposed do or may constitute a deprivation of liberty, then it will be under a positive obligation, both under Article 5 alone and taken together with Article 14, to take reasonable and proportionate measures to bring that state of affairs to an end. What is reasonable and proportionate in the circumstances will, of course, depend upon the context, but it might for example, Mr Bowen suggests, require the local authority to exercise its statutory powers and duties so as to provide support services for the carers that will enable inappropriate restrictions to be ended, or at least minimised.

iv) If, however, there are no reasonable measures that the local authority can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or his family, then it may be necessary for the local authority to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, obtaining authorisation for its continuance.

96. What emerges from this is that, whatever the extent of a local authority’s positive obligations under Article 5, its duties, and more important its powers, are limited. In essence, its duties are threefold: a duty in appropriate circumstances to investigate; a duty in appropriate circumstances to provide supporting services; and a duty in appropriate circumstances to refer the matter to the court. But, and this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court. Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, at para [21]. But it must follow up any such intervention with an immediate application to the court.

…

1. Before passing from this part of the case there are two final points which I should emphasise. In the first place, it is vital that local authorities embark upon the kind of investigations that Hedley J and I have described with sensitivity and with a proper appreciation of the limited extent of their powers. Social workers need to keep their eyes open and their professional antennae alert when meeting or visiting their clients. And if there is real cause for concern they must act quickly and decisively. But they must guard against being seen as prying or snooping on the families who they are there to help and support. Nothing is more destructive of the ‘working together’ relationship which in this kind of context, as in others, is so vitally important than a perception by family carers that the local authority is being heavy-handed or worse. I repeat in this context what I have already said in paragraphs [51]–[53] above.2. The other point relates to how local authority applications to the court should be made. Too often, in my experience, local authorities seeking the assistance of the court in removing an incapacitated or vulnerable adult from their home against their wishes or against the wishes of the relatives or friends caring for them, apply ex parte (without notice) and, I have to say, too often such orders have been made by the court without any prior warning to those affected and in circumstances where such seeming heavy-handedness is not easy to justify and can too often turn out to be completely counter-productive: cf X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, at para [93]. I agree in every respect and would wish to associate myself with what Charles J said in B Borough Council v S (By the Official Solicitor) [2006] EWHC 2584 (Fam), [2007] 1 FLR 1600, at paras [37]–[42]. And although I accept that the analogy is not exact, it seems to me that, generally speaking, a local authority will only be justified in seeking a without notice order for the removal of an incapacitated or vulnerable adult in the kind of circumstances which in the case of a child would justify a without notice application for an emergency protection order; as to which see X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. That said, there will, of course, be cases in the adult jurisdiction where, just as in the corresponding children jurisdiction, a without notice application will be justified; indeed (see para [81]), B Borough Council was just such a case.