Case comments – Page 7 – Court of Protection Handbook

When does the court need an expert to assist as to veracity?

Summary

in Wigan Council v M, C, P, GM, G, B and CC [2015] EWFC 8, Peter Jackson had to consider whether expert evidence was required in family proceedings in relation to (1) the capacity of a witness to give evidence and (2) the witness’s veracity. As materially similar principles apply by analogy in COP proceedings, the conclusions reached by Peter Jackson J are equally applicable to judges of and practitioners appearing in that court.

Two children, aged 15 and 16, alleged that they had been sexually abused by their stepfather. At a case management hearing, the stepfather applied for a ‘veracity assessment’ and an assessment of the children’s ability to give evidence. The application was supported by the other parties and granted by the court.

An experienced clinical psychologist with special experience in the analysis of forensic interviews was instructed. The expert concluded that there was nothing in what the children said that required the interpretation of an expert. The children were articulate teenagers who were capable of giving evidence.

Peter Jackson J, whilst acknowledging that an assessment of capacity to give evidence, and the arrangements that should be made to assist a witness to do so fairly is a proper subject for expert advice where necessary, it is not necessary in every case. He identified three principles:

As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true.
Expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.
Cases in which it will be necessary to seek expert evidence will nowadays be rare. Judges have been trained in and are expected to be familiar with the assessment of evidence. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

Peter Jackson J also expressly agreed with what was said by Baker J in A London Borough Council v K [2009] EWHC 850 (Fam) that veracity or validity assessments have a limited role to play in family proceedings. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone.

Comment

In the COP, as in the Family Court, an expert may give evidence on questions going to factual matters, such as the veracity or truthfulness of a witness but the final decision upon those matters remains for the judge. Indeed, the ultimate questions of whether P has capacity and what is in their best interests are matters for the court.

The equivalent to Part 25 of the Family Procedure Rules 2010 is COPR Part 15 accompanied by PD 15A. Pursuant to rule 121, the COP is under a specific duty to limit expert evidence to that which is “reasonably required” to resolve the proceedings. This is in contrast to s.13(6) Children and Families Act 2014, which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings justly. It is likely that this this change will be introduced in due course in the COP. It would therefore be wise for COP practitioners to take heed of the three principles identified by Peter Jackson J when considering whether to seek to adduce expert evidence going to veracity. Indeed, it is only like ever to be required where there are real doubts (for instance) as to whether a person has the mental capacity to understand the import of what they saying. An example from the experience of the editors where this has arisen is where a person with a severe learning disability placed in a care home made allegations of sexual abuse but where there were doubts as to whether the words that they are using reflected their own experience or words that they had picked up from contact with other service users or from the media. In that case, the assistance of an expert psychologist was undoubtedly necessary, but these cases are likely to be rare.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

Extreme Product Champions and their effect on P

In a decision from October 2014 which was only very recently placed on Bailii (and which we are very grateful for to Caroline Hurst of Switalskis for bringing to our attention), District Judge Mainwaring-Taylor made a heartfelt plea to an ‘extreme product champion’ to reflect upon the consequences of his actions. In Re MW [2014] EWCOP B27, proceedings concerning an elderly lady, MW, had been concluded with a decision that she should continue living in a care home rather than being cared for by her son at home. A significant factor in that decision had been the fact that he had taken, and posted on a private section of YouTube, a video of his mother in an extremely distressed state at home.

Some two years later, the matter came back to court, it appears because of the son’s continued conduct and – in particular his continued practice of videoing. In a description that may ring bells, District Judge Mainwaring-Taylor noted that “[Mr W] is entirely convinced that in all the circumstances he is always right and he produces what he says are justifications. Unfortunately, Mr W’s justifications really centre on his needs, rather than on his mother’s needs. I quite accept and believe that Mr W is entirely genuine in thinking and having a perception that what he is doing and wants is in his mother’s best interests, but, sadly, that is simply not the case.”

In maintaining the status quo, namely that Mrs W should continue to reside in the care home, the judge made a plea that:

“Perhaps in his future dealings and thoughts, Mr W might think that, every time he does something which provokes the need for court proceedings, he is directly diminishing his mother’s resources. Because it always seems to get to the stage where the matter has to come before the court and, as soon as that happens, Mrs W needs representation; that representation has to be through the Official Solicitor and it has to be funded. As long as Mrs W has financial resources, it will be she who funds it, rather than the monies being there for her care and comfort.”

Comment

Cases such as this (and that of A Local Authority v M & Ors [2014] EWCOP 33 and Re A and B (Costs and Delay) [2014] EWCOP 48 will no doubt be considered carefully by the ad hoc Rules Committee when in due course in the course of their deliberations as to how to seek to enshrine into the Rules mechanisms to ensure that the resources of the court – and, significantly, the resources of privately paying Ps – are deployed proportionately.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

“Neary 2,” or making Article 5(4) real

In an extremely important judgment handed down on 11 February, AJ v A Local Authority [2015] EWCOP 5, Baker J has given detailed guidance as to the heavy burden that is placed upon local authorities in making sure that those deprived of their liberty in care homes (and, by extension, hospitals) are afforded effective access to the Court of Protection so as to secure their rights under Article 5(4) ECHR. He has also confirmed again the importance of taking appropriate steps in advance where it is clear (or should be clear) that a person will be deprived of their liberty.

For those in a hurry, Baker J gave at the conclusion a series of wider lessons, which I reproduce here, although this is no substitute either for reading the balance of this note or – more importantly – the judgment itself.

“113. First, I emphasise that the scheme of the DOLS is that, in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. It is only in exceptional cases, where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the deprivation begins.

114. Secondly, professionals need to be on their guard to look out for cases where vulnerable people are admitted to residential care ostensibly for respite when the underlying plan is for a permanent placement without proper consideration as to their Article 5 rights.

115. Thirdly, a RPR should only be selected or confirmed by a BIA where he or she satisfies not only the criteria in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 but also the requirements of paragraph 140 of Schedule A1 of the MCA. This requires that the BIA not only checks that the facts set out in regulation 3 are satisfied but also carries out an analysis and reaches a judgment as to whether the prospective representative would, if appointed, (a) maintain contact with the relevant person; (b) represent the relevant person in matters relating to or connected with the Schedule and (c) support the relevant person in matters relating to or connected with the Schedule.

116. Fourthly, the local authority is under an obligation to satisfy itself that a person selected for appointment as RPR meets the criteria in regulation 3 and in paragraph 140 of Schedule A1. If the local authority concludes that the person selected for appointment does not meet the criteria, it should refer the matter back to the BIA.

117. Fifthly, it is likely to be difficult for a close relative or friend who believes that it is in P’s best interests to move into residential care, and has been actively involved in arranging such a move, into a placement that involves a deprivation of liberty, to fulfil the functions of RPR, which involve making a challenge to any authorisation of that deprivation. BIAs and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which are likely to give rise to this potential conflict of interest.

118. Sixthly, an IMCA appointed under section 39 D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A 1 is brought before the court expeditiously. Failure to do so will lead to the evaporation of P’s Article 5 rights.

119. Seventhly, the appointment of a RPR and IMCA does not absolve the local authority from responsibility for ensuring that P’s Article 5 rights are respected. The local authority must monitor whether the RPR is representing and supporting P in accordance with the duty under paragraph 140 and, if not, consider terminating his appointment on the grounds that he is no longer eligible. The local authority must make sufficient resources available to assist an IMCA and keep in touch with the IMCA to ensure that all reasonable steps are being taken to pursue P’s Article 5 rights.

120. Finally, in circumstances where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself. This is likely, however, to be a last resort since in most cases P’s Article 5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.”

Summary

Although the principles set down by Baker J are of general application, the particular factual context in which they arose is of some importance, not least because they represent a not uncommon state of affairs.

An elderly lady, AJ, had lived for a considerable period of time in an annexe of the home of her niece and her husband (‘Mr and Mrs C’). She developed vascular dementia and became increasingly dependent on others, in particular Mrs C. She was, however, very reluctant to acknowledge her condition, and insistent that she could manage without any help. In April 2013, she signed LPAs in respect of health and welfare and property and financial affairs naming Mr and Mrs C as donees.

At around this time, AJ was referred to social services by a psychiatric nurse. When a local authority case co-ordinator visited on 22^nd April 2013, Mrs C raised the possibility of respite care for AJ to prevent the breakdown of the care arrangements. In June 2013, Mrs C made it clear that she could not continue with her caring role in its current form as she and her husband had planned a fortnight’s holiday. She said that she now felt that permanent residential care was required. The local authority social worker offered to find the nearest suitable home for respite while Mr. and Mrs. C were away, and duly identified a home, X House, for that purpose. It was clear that, in fact, it was hoped that if AJ settled she could remain in the care home on a permanent basis.

On 13 June, just before they went on holiday, Mr and Mrs C took AJ to X House. Upon arrival, she stated that she did not wish to be there and repeatedly asked to leave. No assessment under Schedule A1 to the MCA 2005 had been carried out prior to her arrival but an urgent authorisation under the Schedule was granted by the manager at X House on 14 June. The urgent authorisation recorded inter alia that AJ had been placed at the home whilst her main carers, Mr and Mrs C, went on holiday for two weeks, “with a view to [AJ] staying here on a permanent basis”. On the same day, a request was made to the local authority as the supervisory body for a standard authorisation, which was granted for a period of 21 days because of the uncertainty of the situation.

Mr C was appointed AJ’s RPR, on the basis that AJ had a donee whose under the LPA permitted them to select a family member, friend of carer to be their RPR, that the donee had selected Mr C to act in that capacity and that he was eligible to be appointed. It was clear at this stage that Mr C supported AJ continuing to be accommodated in a care home, even though it amounted to a deprivation of her liberty. A s.39D IMCA was also appointed, a Mr R.

At the start of July 2013, AJ was moved to Y House, and remained there thereafter, subject to repeated standard authorisations. Despite AJ’s known opposition to living at Y House, no legal challenge was made to the standard authorisations for several months. As Baker J noted, “[t]he reasons for this failure lie at the heart of this case” (paragraph 18). A critical reason was the lack of effective communication between Mr C and Mr R.

When Mr R and Mr C finally spoke in November 2013 Mr R realised that Mr. C was not going to initiate proceedings and after further conversations with his manager he agreed to act as her litigation friend and instruct solicitors to make an application to the Court on her behalf. Proceedings were eventually issued in December 2013, challenging the standard authorisation made in July 2013. Mr R was replaced in March 2014 as AJ’s litigation friend by the Official Solicitor. Although ultimately the substantive challenge under s.21A MCA 2005 was not actively pursued, in view of evidence as to a deterioration in AJ’s condition and behaviour, and to the fact that there was no domiciliary care agency willing to offer to provide care, the Official Solicitor (1) raised concerns as to the extent to which the care plan accurately reflected the type and degree of physical interventions being used; and (2) pursued a claim for a declaration under s.7 HRA 1998 that AJ’s rights under Article 5(1), 5(4) and 8 ECHR had been breached (but not a claim for damages). In order to determine the claim, Baker J conducted a hearing in May 2014 at which he heard oral evidence from Mr R, Mr C and the local authority’s BIA, Ms G, and then subsequently sought (and received) extensive written submissions, inter alia, on the effect of the Re X judgment).

Restraint

As a preliminary issue, Baker J addressed the question of the use of restraint and its documentation. It became clear that the level of physical restraint being used by carers in Y House was greater than acknowledged in the care plan (and indeed, even in an amended care plan).

As Baker J noted:

“25. In supplemental submissions, Ms Butler-Cole on behalf of the Official Solicitor submitted that in any case in which physical restraint is used in the care of an incapacitated adult, any physical intervention, whether considered to amount to “restraint” or not, should be recorded in the care plan maintained by the service provider and monitored by the statutory body responsible for commissioning the person’s care. Furthermore, precise details of all physical interventions should be ascertained and documented as part of the Deprivation of Liberty Safeguards process or indeed any best interest assessment from direct discussion with care staff implementing the interventions.

agree. In this case, whilst there may at one stage have been a discrepancy between the care plan and what was actually being provided, I am now satisfied that the local authority has addressed this issue in its amended plan. If, however, any further issue arises, or any party seeks any further declaration or order on this issue, the matter should be referred to me for further review.”

Article 5(4)

Baker J provided a careful and comprehensive summary of the principles to be derived from the case-law relating to Article 5(4), which merits reproduction in full

“35. In applying [the provisions of Schedule A1 to the MCA 2005], and assessing whether there was any infringement of Article 5(4) in this case, I have had regard to the case law, both European and domestic. The leading European cases are X v United Kingdom (1981) 4 EHRR 188; Winterwerp v The Netherlands (1979) 2 EHRR 387; Waite v UK [2002] ECHR 804; Shtukatarov v Russia (2008) 54 EHRR 962; Stanev v Bulgaria (2012) 55 EHRR 696, MH v UK [2013] ECHR 1008, and, most recently, Ivinovic v Croatia [2014] ECHR 964. From those authorities, the following principles can be summarised:

(1) “There is a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge”: Stanev v Bulgaria at paragraph 120.

(2) The procedure required by Article 5(4) must have a judicial character and be independent of the detaining authority: X v United Kingdom, supra, para 53, MH v UK, supra, para 77(c).

(3) Article 5(4) guarantees a remedy that must be accessible to the person concerned: MH v UK, supra, para 76.

(4) The state has an obligation to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body: Ivinovic v Croatia, supra, para 45.

(5) Special procedural safeguards may be called for in order to protect the interests of persons who, on account of mental disabilities, are not fully capable of acting for themselves. Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf: Winterwerp v The Netherlands, supra, para 60, MH v UK, supra, paras 77(e) and 92.

(6) Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement. Where the third party supports the deprivation of liberty, reliance on the third party to initiate proceedings may not satisfy the requirements of Article 5(4): Shtukatarov v Russia, supra, para 124.

(7) An initial period of detention may be authorised by an administrative authority as an emergency measure provided it is of short duration and the individual is able to bring judicial proceedings speedily to challenge the lawfulness of any such detention including, where appropriate, its lawful justification as an emergency measure: MH v UK, supra, para 77(a).

(8) The likelihood of the judicial hearing leading to release from detention is irrelevant. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition of enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release: Waite v UK, supra, para 59.

36. In domestic law, the fundamental principle to be applied by the Court of Protection in cases of deprivation of liberty was summarised by Peter Jackson J in Neary v LB of Hillingdon [2011] EWHC 1377 (COP) at para 202:

‘… there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.”

Baker J noted the “guidance” given by the President in Re X as to the question of whether P needed to be joined as a party to proceedings for judicial authorisation for deprivation of liberty, and, in particular, paragraph 19, the conclusions of the President as to Article 5(4) as regards the requirements of “representation” if P is not to be a party to proceedings. [This paragraph will be the subject of intense scrutiny on 17-8 February before the Court of Appeal].

Initial authorisation

Baker J found that it was clear that Mr and Mrs C were clearly saying before they went on holiday that they could not continue to care for AJ and that a move to permanent residential care was required.

Therefore:

“47. As it was clear that AJ would not go willingly to X House, and that such a move would only be achieved by depriving her of her liberty, the local authority, prior to that move taking place, ought to have either carried out a DOLS assessment or made an application to the Court. During the first few days of her stay at X House, there was no authorisation in place, nor was there an RPR or an IMCA appointed to support her. The fact that the first two weeks of her stay at X House were nominally labelled as “respite” care cannot justify the local authority’s failure either to instigate the DOLS process or apply to the court. The local authority plainly knew that Mr. and Mrs. C would not agree to AJ returning home at the end of their holiday and that, whatever may have been said about respite care, the move was intended to be permanent from the outset.

48. In this case, the local authority had sufficient time to commence the process of authorisation. This case therefore fell within the ‘vast majority of cases’ in which, as Chapter 3 of the Code of Practice recognises, “it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins”. Given the scheme of the Act is that urgent authorisations are expected to last for no more seven days save in exceptional circumstances, the local authority ought to have been able to complete the process of assessment and grant of a standard authorisation before AJ arrived at X House on 13^th June. In the alternative, given the fact that AJ’s objections to being placed in residential care were clear and well-known, the local authority could have applied straight to the Court of Protection without going through the authorisation procedure under Schedule A1. As Keehan J observed in NHS Trusts 1 and 2 v FG [2014] EWCOP 30 at paragraph 101(iii), ‘the mere fact that a deprivation of liberty could be authorised under Schedule A1 does not absolve [the authority] from making an application to the court where the facts would otherwise merit it.’”

Importantly, this failure meant that there was no proper analysis of alternative options for AJ’s care, nor was she afforded any opportunity to have her views considered, before the move to X House occurred. Baker J also found that it was irrelevant that the initial move took place, as an measure of interim support, not on the basis of s.21 National Assistance Act 1948, but rather under the statutory duties imposed by s.47(5) of the National Health Service and Community Care Act 1990. As he noted at paragraph 50: “[the consequence of the decision was that she, an incapacitated adult, was thereby deprived of her liberty. The local authority was therefore under an obligation to comply with Article 5 and it was unlawful under s.6 of the Human Rights Act 1998 for the authority to act in a way that was incompatible with AJ’s rights under that Article.”

Baker J therefore found at paragraph 51 that there had been:

“a clear breach of the principles identified in the European and domestic case law. As the European Court made clear in Stanev v Bulgaria, supra, the state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. In this case, the local authority was in breach of that obligation by failing either to instigate the standard authorisation procedure under Schedule A1 or alternatively apply direct to the Court of Protection in advance of AJ’s admission to X House.”

The RPR

The core of the Official Solicitor’s case on behalf of AJ was that the local authority not to have appointed Mr C to act as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light of AJ’s known objections, or alternatively, having appointed him, replaced him when it became apparent that he was not going to facilitate a speedy review of her detention.

After a detailed analysis of the (inordinately) complicated statutory provisions, Baker J concluded that Mr C was not eligible to be AJ’s RPR because:

1. A person is only eligible to be an RPR if they will, as part of supporting the relevant person, take appropriate steps to support the person to challenge any authorisation granted under Schedule A1 (paragraph 82). This construction of paragraphs 140(a) and (b) of Schedule A1 was supported, Baker J, noted by the Strasbourg case-law, in particular the case of Shtukatarov v Russia.

2. The evidence “manifestly demonstrate[d] that Mr. C was unwilling or at least very reluctant to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care” (paragraph 84). As Baker J noted, Mr C had immediately noted that he had a conflict of interest, and raised it with Ms G. Ms G’s response had been to arrange for the appointment of an IMCA, but “the appointment of an IMCA cannot overcome the ineligibility of the RPR” (paragraph 84).

3. Further, at paragraph 86, Baker J accepted the Official Solicitor’s submission that:

“the local authority ought not to have appointed Mr. C as RPR notwithstanding the fact that he was selected by the BIA. The European and domestic case law make it clear that there is a positive duty on public authorities under the Convention to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court, to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body, and not to permit access to a court to be dependent on the exercise of discretion by a third party who supports the deprivation of liberty. As the President has made clear in of Re X and Others (Deprivation of Liberty) [2014], it is not always necessary for P to be joined as a party to any proceedings, but the state is under a clear duty to ensure that he or she is able to challenge a deprivation of liberty in a process that is judicial, accessible and independent of the detaining authority. To my mind, these obligations impose on the local authority as supervisory body a duty to scrutinise the prospective RPR selected under regulations 5 to 8 before making the appointment. I do not accept Mr. Dooley’s submission that it was not open to the local authority as supervisory body to refuse to appoint Mr. C as RPR. The fact that, under regulation 11, a supervisory body may not (except where regulation 9 applies) appoint a RPR unless the person is recommended by a BIA under regulation 7 or 8 does not mean that it is obliged to appoint a person who is so recommended. Where a supervisory body has reason to believe that the person selected as RPR will not comply with the obligations under paragraph 140 of the Schedule, its duties under Article 5 compel it to refer the matter back to the BIA.

4. Having (wrongly) appointed Mr C as RPR, the local authority as the supervisory body ought to have quickly realised (1) that AJ was extremely unhappy in residential care and wished to challenge the authorisations and (2) that Mr C was not taking any or any sufficient steps to represent or support her in pursuing that challenge. “The local authority should therefore have taken steps to replace Mr C as RPR when it became apparent that he was not intending to issue proceedings promptly and that there was not going to be a speedy review of AJ’s detention by a court, since s.21A proceedings must be brought very promptly to ensure compliance with Article 5(4)” (paragraph 90).

IMCA

Baker J was called to determine a number of questions in relation to the provisions relating to s.39D IMCAs. In summary form, he concluded that:

1. The functions of a section 39D IMCA are as set out in that section, as supplemented by Schedule A1, and concern matters relating to the deprivation of liberty provisions under the Schedule. An IMCA appointed under section 39D does not have a broader, general role of representing or supporting P, and is not under a general duty to assist in determining what is in P’s best interests but, rather, to perform the specific functions set out in section 39D(7), (8) and (9) [i.e. in very broad terms, supporting the RPR and the relevant person to understand matters relating to the authorisation and helping them exercise their rights to apply to court or for a Part 8 review] (see paragraph 108);

2. Where P has executed a LPA, the duty to appoint an IMCA under section 39D is not excluded under section 40(1)(b) unless the donee of the LPA is authorised to make decisions in relation to the matters in section 39D(7) and (8) (paragraph 112);

3. Standard health and welfare LPAs do not grant authority to the donee to make decisions relating to matters to which the duty to appoint an IMCA under section 39D(2) relates (paragraphs 115-6);

4. The fact of the grant of a standard health and welfare LPA will not therefore relieve a local authority of its duty to appoint a s.39D IMCA if any of the three cases in 39D(3),(4) or (5) arise [i.e. the relevant person or their RPR request one or the local authority consider the appointment of one is – in essence – necessary to ensure the person’s rights are secured] (paragraph 116).

On the facts of the case, therefore, he concluded that, in fact, a s.39D IMCA had to be appointed.

Very importantly, Baker J found that the fact of the appointment of the s.39D IMCA did not absolve the local authority of further responsibility:

“125. The principal errors committed by the local authority in this case were, as analysed above, the failure to initiate the authorization process prior to the 13th June 2013 and wrongly appointing Mr. C to act as RPR. In my judgment, however, the local authority’s obligations did not stop there. The local authority thought that it would be meeting its obligations by appointing an IMCA and making resources available to assist the IMCA to act as litigation friend. As set out above, the appointment of an IMCA under section 39D was entirely appropriate and, although Mr. C was uncertain about how to take matters forward, I accept the local authority’s case that resources were in fact available, for example to assist an IMCA acting as litigation friend. In most cases, that would in all probability have been sufficient. In this case, however, the local authority knew that Mr. C was unwilling or at least very reluctant to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care. In those circumstances, I find that the appointment of Mr. R and the provision of resources to assist him in his role as IMCA did not absolve the local authority from its continuing obligation to ensure that AJ’s rights under Article 5(4) were respected. The local authority knew at all times that AJ did not wish to be in X House or Y House. In those circumstances, I consider that the local authority, in addition to monitoring the actions of Mr. C as RPR and taking steps to replace him if appropriate, should have made enquiries as to why the IMCA was not taking steps to ensure that the right to apply to the court was being exercised.”(emphasis added)

Baker J emphasised that – as a last resort – the local authority should have considered bringing proceedings before the court itself. This was “[p]lainly this is a last resort, because of the comprehensive and complex provisions for the selection and appointment of RPRs and the appointment of IMCAs are followed, and if RPRs and IMCAs appointed under these provisions carry out their responsibilities as they should, the rights of an incapacitated person to challenge a deprivation of liberty normally will be protected” (paragraph 126).

However, the local authority “remained under a continuing and positive obligation to “ensure that AJ’s Article 5(4) rights were respected. Thus, if it was not satisfied that the IMCA was taking the necessary steps to apply to the court, and if in all the circumstances it considered such a course to be appropriate, it should have brought court proceedings itself.” (paragraph 126, emphasis added).

Conclusion

Baker J found that the case told a sorry tale of a series of failures by a number of people to ensure that the procedures designed to ensure that AJ’s rights under Article 5 were respected, for which ultimate responsibility lay with the local authority. He therefore granted the declarations sought by the Official Solicitor.

Wider practice

As set out above, Baker J then pulled the threads together to give wider guidance for practitioners.

Comment

Whilst much of the judgment concerned extremely technical interpretation of the provisions of the MCA and the relevant secondary legislation (much of which strongly suggests that the whole regime is beyond repair as a statutory mechanism), it is, at heart, a vitally important assertion of the importance of public bodies taking appropriate steps:

To recognise when apparently beneficent steps will lead to a deprivation of liberty;
To be honest about what exactly those steps will be;
To pause before taking those steps to check whether, in fact, they are necessary or whether a less restrictive option can be pursued;
If they are necessary, to ensure – wherever possible – that the necessary authority is in place before they are taken;
To recognise the continuing and positive obligation imposed upon local authorities to ensure that those subject to standard authorisations are afforded an effective right to challenge their detention before the Court of Protection.

The case is also a clear recognition of the ‘hard-edged’ nature of rights under Articles 5(1) and 5(4). It is clear that Mr C thought that he was acting in AJ’s best interests, and that, as a family member, he had a more complete and rounded picture of the circumstances than an RPR who had only met AJ on a limited number of occasions. However, through a truly Lemony Snicket series of events, her family members and the local authority ended up inadvertently conspiring to preclude her raising her fundamental objections to being “dumped” (as her friends perceived it) in a care home.

The final point relates to the preliminary point determined by Baker J in relation to the need for honesty in care plans as to exactly what level of restraint is being imposed upon an individual. This point is equally, if not more, important in relation to those in respect of whom Re X applications are being made –where, as matters currently stand, the court will only have the applicant’s word for what is going on…

[footnote – for further excellent comment on the case which arrived as I was writing this, see Lucy Series’ post here]

Status of declarations in the Court of Protection.

In MASM v MMAM, MM and London Borough of Hackney, Mr Justice Hayden considered what sanctions could be imposed for actions made by a party to Court of Protection proceedings who had deliberately acted in defiance of declarations. Could these be regarded as contempt of court and could committal to prison result?

You can read the judgment here. In brief MM, MASM’s grandson, had not opposed declarations that it was in MASM’s best interests to reside in a care home, and authorising any resultant deprivation of liberty. No injunctions were made at the time and therefore the order contained no penal notice. Subsequently Hayden J found that MM (acting with the assistance of his father Mr MASM) had arranged the removal of MASM to Saudi Arabia and had provided an account to the court which the judge found to be “a complete fabrication”. He was critical of the what he described as the “supine” response of the local authority commenting that “vulnerable adults have to be protected as sedulously as vulnerable children” whilst making it plain that it is the obligation that is similar and not those entitled to such protection.

It was urged upon the judge that – in analogy to the wardship or parens patriae jurisdiction- an action hampering the court’s objectives could itself be an interference with the administration of justice. The judge did not accept this, drawing an important distinction between the paternalistic quality of wardship “which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult”.

Ultimately the judge concluded that a best interests declaration does not always mean that any alternative course of action is contrary to the individual’s welfare and although MM had acted cynically and frustrated the objectives of the litigation, he was not acting in defiance of an order and was not exposed to contempt proceedings. The current case was unusual and there are many cases where partners or relatives struggle to accept the outcome of proceedings and “it would to my mind be disproportionate and indeed corrosive of the co-operation ultimately required for the shadow of potential contempt proceedings to fall too darkly over cases such as this.”

The judge concluded with the following guidance:

“i)Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).”

He directed that MM pay personally the entire costs of the proceedings.

A depressing and inexcusable set of affairs

District Judge Mort has approved a damages settlement in another troubling case involving the wrongful removal and detention of a vulnerable adult. Essex County Council v RF and others concerned P, a man of 91 with dementia, who was removed from his home of 50 years and kept in a locked dementia unit for over a year, against his will, with no consideration given to any less restrictive alternative or indeed to the possibility that he might have capacity to make decisions about his evidence himself.

The brief judgment merits reading in full as a worrying catalogue of disregard of the principles and process of the Mental Capacity Act. The judge summarised these as follows:

As far as P was concerned ECC failed:

• To heed the presumption in favour of his capacity

• To adopt the course of action which was less restrictive of P’s rights and freedom of action.

• To have regard the independent evidence of P’s capacity by either ignoring it or immediately countermanding it

• To take seriously or act upon his consistently expressed wish to return home

• To appoint an IMCA for him

• To refer the matter to the court

These were substantive and not technical breaches. Fortunately after 17 months the local authority agreed to support P’s return home and he has now moved back home. Although the COPRs do not themselves provide for approval of damages, the judge was able to so under the Civil Procedure Rules. He reviewed the level of damages in known cases and concluded that this suggested a level of between £3000 and £4000 per month. ECC agreed to pay P’s costs, to waive the care home fees and, importantly, to disregard the damages when assessing P’s liability to contribute to his care costs.

“A sensible decision, not the pursuit of perfection”

Mr Justice Peter Jackson has expressed concern about the costs and delay – and associated “human misery” and drain on manpower- in two Court of Protection cases, which in his conservative estimate cost around £9,000 per month, largely paid for by the State.

You can read his strong judgment here. It echoes some of the comments made in the family sphere (V v V, [2011] EWHC 1190 (FAM); J v J [2014] EWHC (Fam)).

The following comments should be noted by practitioners:

The inconsistency of “extravagance” in CoP proceedings with the parties’ duty to assist the court in furthering the over-riding objective;
The importance of restraining excessive costs where P’s money is being spent on deciding his future, whether he likes it or not
The judge’s criticism of the “search for the ideal solution, leading to decent but imperfect solutions being rejected”- s1(5) “calls for a sensible decision, not the pursuit of perfection;
It is not necessary to take up “every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved”.
The need for professional co-operation. Here the judge noted the role of the litigation friend in one of the cases: “This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.“

The judge concluded:

“The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?
I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.”

Habitual Residence for the purpose of the MCA

In A Local Authority v SW and another, Moylan J considered the question of the habitual residence of SW, a woman who lacked capacity to decide about her residence. She had moved in 2009 from hospital in Scotland (where she had grown up) to a placement in England, initially under under the terms of the equivalent of a Community Treatment Order. This lapsed in 2010. Her care was funded by the Scottish authorities and this would continue whatever the judgment. Her money was managed in Scotland on her behalf.

The judge concluded that (although SW expressed a dislike of the area where she lived and a wish to move) she was habitually resident in England. His reasoning is set out below:

“Discussion

Given the close links, in particular between the 2000 Convention and the 1996 Child Protection Convention, as explained in the Lagarde Report; given the relationship between the 2000 Convention and the MCA; and for general policy considerations as referred to by Lady Hale in A v A, it is clear to me that the definition of “habitual residence” under the MCA should be the same as that applied in other family law instruments, including BIIa. Further, BIIa is also closely linked to the 1996 Convention, as explained in Proceedings brought by A.
In my view, it must be right that the approach to the issue of habitual residence under BIIa should be the same as that under the MCA. I have not been directly referred to other judgments from the Court of Justice or domestically which address the issue of habitual residence including those which refer to the test of “centre of interests”. However, this phrase is incorporated in the judgment of Mercredi v Chaffe, as referred to above. Accordingly, whilst, inevitably, different factors will be relevant and will bear differential weight, the overarching approach should be consistent across all international family law instruments, including under the 1996 Child Protection Convention and in respect of children under BIIa. Any other approach would, in my view, be inconsistent with the points made in the Lagarde Report, especially in paragraph 49.
I do not, therefore, accept Mr Rees’s submission that the approach established by the CJEU, as adopted by the Supreme Court, is not applicable. I agree with Mr Harrop-Griffiths that the test should be the same, suitably applied, as that under Brussels IIa as referred to above. If a different approach was to be taken as between adults and children, habitual residence would not even be applied consistently within BIIa. It is plain that different factors, as in any case, will or may have differing degrees of relevance. But, in my view, the overarching test should be the same.
However, I agree with Mr Rees’s submission that the Local Authorities have adopted too narrow a focus when addressing the circumstances of this case. It is clearly important, given its critical place in so many international instruments, that the determination of habitual residence is kept as free as possible from analytical complexities or constructs. It is a question of fact. In my view, the Local Authorities in the present case have focused unduly on whether SW is integrated, in the sense of settled, by reference to whether she is happy living where she has been. Reduced to their key elements they submit that, given SW’s placements in England have to varying extents been determined for her and given she does not like living where she is, SW is not habitually resident in this jurisdiction because she has never become sufficiently integrated.
Although the Supreme Court refers, in both A v A and Re LC, to the test or question as being whether there is some or sufficient degree of integration in a social and family environment, I do not accept that this was intended to narrow the court’s focus to this issue alone as an issue of fact. It is not a free-standing, determinative factor, and in particular not to the exclusion of all other factors. In my view, this would not be consistent with the broad assessment identified as being necessary by the CJEU. As the Court said, in Proceedings brought by A, the national court must conduct an “overall assessment” in the light of the factors referred to in paragraphs 38-41.
In Mercredi v Chaffe the Court of Justice said that the place of habitual residence “must be established, taking account of all the circumstances of fact specific to each individual case” (paragraph 47). These include the conditions and reasons for the stay, its duration, and other factors which make clear that the person’s presence is not in any way temporary or intermittent. Factors which, as Lady Hale said in Re LC (paragraph 59), address whether the residence has acquired “the necessary degree of stability”.
Further, integration, as an issue of fact, can be an emotive and loaded word. It is not difficult to think of examples of an adult who is not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living. Integration as an issue of fact can also raise difficulties when a court is determining the habitual residence of a person who lacks capacity. As Mr Rees submits, there is a wide range of potential factual situations which will impact on the court’s ability to establish a person’s state of mind or perception and the weight which can properly be given to it.
To repeat what Lady Hale said in A v A, at paragraph 54(vii): “The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce”. Another way, in my view, of expressing this might be that the court should not lose sight of the wood for the trees. I say this because, standing back for a moment, it might be thought surprising that it might be argued that someone who has been living, largely voluntarily, in England for nearly five years, and for the last three-and-a-half years in their own flat, was not habitually resident here.
I would suggest that the phrase “degree of integration”, as with centre of interests, is an overarching summary or question rather than the sole, or even necessarily the primary, factor in the determination of habitual residence. Otherwise, it would become a legal construct in place of the essential issue which is, of course, that of habitual residence. This is not to say that the degree of integration and a person’s state of mind are not relevant; they are clearly factors to which appropriate weight must be given when the court is undertaking a broad assessment of all the circumstances of the case. The broad assessment which is required properly to determine whether the quality of residence is such that it has become habitual in that it has the necessary degree of stability in order to distinguish it from mere presence or temporary or intermittent residence. This means a sufficient, or some, degree of integration, not, I suggest, as a limited factual assessment, but as a question to be answered by reference to the factors, suitably applied, referred to by the CJEU and the Supreme Court.

Determination

Turning then to the circumstances of the present case. As SW has been living in England since July 2009 and has been living in her own flat since December 2010, in my view there would need to be some compelling countervailing factors in order for me to determine that she is not habitually resident in England.
I accept that SW’s move to England was pursuant to a compulsory treatment order and that, since then, her place of residence, while seeking to meet her wishes as much as possible, has very largely been governed by the relevant authority’s decision as to what would suitable and by what has been available. I also accept that SW has expressed her dislike of the area in which she lives and her wish to move somewhere else. However, I do not consider that these factors come close to counterbalancing the effect of SW’s long residence in England especially when combined with the matters referred to by Mr Rees (paragraph 61 above).
By virtue of its duration, SW’s residence has, in my view, acquired what might be termed effective “stability”, in the sense used by the Court of Justice. Many people would rather not be living where they are and might wish fervently to live somewhere else. However, at least after a person has been living in one place for a significant period of time it will be difficult not to come to the conclusion that they are sufficiently integrated into their environment, whatever its composition, for them to be habitually resident there. In the present case, any other conclusion would, in my view, be placing far too much weight on an assessment on SW’s state of mind and the extent to which she feels settled. Accordingly, in my judgment SW is habitually resident in this jurisdiction for the purposes of the Mental Capacity Act 2005.

The Re X process goes live

The much-anticipated new procedure for the judicial authorisation of deprivation of liberty in settings outside hospitals and care homes comes into force on 17 November. The procedure implements the judgments of Sir James Munby P in Re X (1) and Re X (2). It is set out in the new Part 2 of Practice Direction 10A (Deprivation of Liberty), and is accompanied by a new application form (with annexes), designed exclusively for applying for court-authorised deprivations of liberty. All the materials are available here.

The Court of Protection has set up a dedicated team to deal with applications made under the Re X procedure. The contact details are:

Court of Protection

P.O. Box 70185

London

WC1A 9JA

DX 160013 Kingsway 7

Telephone: 0207 421 8665

Email: COPDOLS/S16@hmcts.gsi.gov.uk

The legal aid debate escalates

In some of his most trenchant comments to date, Sir James Munby P has raised the stakes yet further in the battle (we entirely support) to secure proper funding for representation in proceedings concerning the most vulnerable. In Re D (A Child) [2014] EWFC 39, the President was concerned with care proceedings in which:

The father lacked capacity to litigate and therefore required a litigation friend. That litigation friend was the Official Solicitor, who was only prepared to act because the father’s solicitor and counsel had agreed to act, thus far, pro bono and, indeed, further, the solicitor had agreed to indemnify him against any adverse costs orders; [1]
The mother, although she had learning disabilities, was not a protected party. Because of her ‘personal characteristics, intellectual functioning and limitations which affect [her],’ she was in the view of her counsel (endorsed by the President) ‘wholly unable to represent herself in relation to any aspect of [the] proceedings’;
Neither qualified for legal aid but both lacked the financial resources to pay for legal representation where, as the President put it ‘unthinkable that they should have to face the local authority’s application without proper representation’.

Sir James Munby set out a number of propositions of equal application – we suggest – to ‘adult care’ proceedings before the Court of Protection where a local authority wishes to remove an adult P from the care of their parents.

He noted, in particular, the decision of the European Court of Human Rights in RP v United Kingdom [2012] ECHR 1796, drawing attention, especially, to the underlined words in paragraph 67:

67. In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that RP’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect RP’s interests might in itself have amounted to a violation of Article 6(1) of the Convention (emphasis added).

The President described the parents’ predicament as ‘shocking’:

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

The President then threw down the gauntlet in no uncertain fashion, in a fashion presaged in his earlier decision in Q v Q [2014] EWFC 7, and directed a further hearing:

36 … at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

37. Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

[1] It should also be noted that the solicitor, Rebecca Stevens of Withy King had spent in excess of 100 hours, all unremunerated, working to resolve the issue of the father’s entitlement to legal aid. As the President noted, ‘This is devotion to the client far above and far beyond the call of duty’.

The limits of paternalism

Re DM [2014] EWHC 3119 (Fam) is an important case about the limits of the inherent jurisdiction.

Sunderland City Council sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult which contemplated: (i) interference with the mother/baby relationship following the birth which involved some unspecified level of forced separation and, potentially, removal of the child; and (ii) that the mother should not be informed of key aspects of the plan.

The above orders were sought under the Human Rights Act 1998 and the inherent jurisdiction of the High Court.

The application was made on a Friday. Hayden J adjourned it over the weekend because he did not consider that the evidence had been fully marshalled. On Monday, the local authority sought permission to withdraw its application. Hayden J granted permission to withdraw ‘without hesitation’ because he was far from persuaded of the necessity for or proportionality of the relief sought.

The expert evidence was that the mother had capacity to make decisions about (i) the contact she had with professionals (ii) the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction and (iii) to make decisions about the treatment she should receive following the birth of the baby.

The young woman had given birth on eight previous occasions and each of those children had been removed from her care and placed for adoption. The mother had also gone into hiding late in her last pregnancy. Relevant clinicians had come to the conclusion in this pregnancy that labour should be induced for the mother’s own health. The local authority was understandably concerned that the mother might go into hiding again jeopardising her own health, that of the unborn child and that of the child following birth. The local authority sought to protect the mother and to put in place such protective measures as they could on the birth of the child. Hayden J described the instincts of the local authority as ‘laudable’ but with a ‘paternalistic complexion’. He emphasised that the law was vigorous in protecting the fundamental principle of personal autonomy. He noted that individuals are entitled to take their own decisions, both good and bad and are at liberty to make their own mistakes.

The starting point was that the local authority had an obligation to consult parents in the care planning for their children and/or unborn child.

Hayden J reiterated that in UK law a foetus has no rights of its own until it is born and has a separate existence from its mother. It was a principle that infused the whole of the criminal and civil law in the UK. Balcombe LJ in Re F (in Utero) (Wardship) [1988] 2 FLR 307 had confirmed that the inherent jurisdiction did not extend to the unborn child.

The issue in this case was therefore the future rights of a child, crystallising on birth and the present and existing rights of a pregnant, capacitous woman. In St George’s Healthcare NHS Trust v S; R v Collins and others ex p S [1998] 2 FLR 728 Judge LJ in the Court of Appeal concluded that a capacitous adult should be entitled to decline medical treatment even if her life or that of the unborn child depended on it. The ‘powerful elucidation of the law’ by Buter-Sloss LJ in Re MB (An Adult: Medical treatment) [1997] 2 FLR 426 remained the starting point in all applications:

… a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though … the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation. The [law] does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.

The application in this case was based on the landmark decision of Munby J (as he then was) in Re D (Unborn Baby) [2009] 2 FLR 313. In Re D, Munby J was not exercising the inherent jurisdiction in relation to an incapacitated adult; he was concerned with the best interests of the baby when born. Munby J emphasised the ‘wholly exceptional’ circumstances in which anticipatory relief would be granted. It was necessary to ensure that it was not only ‘appropriate and justified’, but ‘imperatively demanded’ in the interest of safety in the period immediately following the birth of a child. It was always to be regarded as ‘highly unusual’ and a ‘very exceptional step’.

Hayden J went on the revisit in summary the exceptional circumstances of the Re D case which included: the fact that the mother was serving a custodial sentence due to a serious assault on her daughter during a supervised contact session; the mother’s continuing extreme distress and challenging behaviour including an attempt to take her own life in highly alarming circumstances in her cell; the fact that the mother had expressed the view that her children would be better off dead than in the care of the local authority. He emphasised that Re D was ‘a wholly exceptional case’ and reiterated that the courts and local authorities must be vigilant to ensure that the wholly exceptional nature of the relief was never lost sight of.

Hayden J did not consider that any more recent cases had weakened the test set out by Munby J in Re D. He did not consider that it would be helpful to set out prescriptive conditions but stated that to invoke the declaratory relief initially sought in this case the facts would require a level of ‘exceptionality’ and would be characterised by the ‘imperative demands’ and the ‘interests of safety’ of the newborn baby in the period immediately following its birth.

Hayden J held that the professional instincts in this case were sincere but they were ultimately misconceived. It was possible to keep the mother and baby together in a manner that respected the mutual need each for the other in the period immediately following birth which would have the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court could hear the inevitable applications.

Although the judgment had described the application as misconceived, the judge observed that professionals involved in these difficult decisions provided a huge service to the woman and babies they dealt with and society more widely. This case, Hayden J considered, had illustrated the challenges they faced and the debt we all owed to them.

Comment

This case is a useful reminder of the limits of the inherent jurisdiction (albeit as it applies in a rather different context to that jurisdiction as it applies in relation to vulnerable adults) and the wholly exceptional nature of the Re D case with its use of an anticipatory declaration in the interests of a child who has just been born.

It is also a useful reminder for local authorities and those who act for local authorities that good intentions and legitimate professional concerns can stray into the realm of paternalism.

[A version of this note appeared in the November 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]