Le juge et la liberté d'aller et venir des personnes âgées en institution

The institutions for dependent elderly people are now subject to two requirements that may come into conflict: on one hand, protecting the vulnerable individual and ensuring his/her safety; on the other hand, preserving his/her fundamental freedom to come and go. Recent development of litigation relating to this liberty allows clarifying its regime and mesuring not only its practical implications in term of the duty of safety but also the conditions surrounding the legality of measures which restrain the freedom. The judge's reasoning, however, remains very much rooted in the facts of each case, as casuistry makes the construction of a legal theory of freedom to come and go for the elderly difficult.