AG
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] EWCOP 78 |
| Court | Court of Protection |
| Docket Number | Case No: 12084915 |
| Date | 25 November 2015 |
[2015] EWCOP 78
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE COURT OF PROTECTION
Case No: 12084915
Mr James Dixon and Mr James Fraczyk (instructed by direct access) for the appellant DG (AG's mother)
Ms Justine Lattimer (instructed by the local authority) for the local authority
Ms Nageena Khalique QC (instructed by Irwin Mitchell LLP) for the Official Solicitor (AG's litigation friend)
Hearing date: 19 May 2015
Sir James Munby, President of the Court of Protection:
This is an appeal from an order of His Honour Judge Rogers, sitting as a nominated judge of the Court of Protection. Judge Rogers was considering the appropriate welfare arrangements for AG, a young woman born in October 1985. His order is dated 3 September 2013.
The appeal is brought by AG's mother, DG. Her grounds of appeal are dated 22 September 2013. Her application for permission to appeal was considered on the papers by Parker J on 19 December 2014, who observed that the case was not suitable to be dealt with on paper and directed that it should be listed for hearing. At an oral hearing on 14 January 2015, having heard DG's counsel, I granted permission to appeal on all of her grounds of appeal. The appeal came on for hearing before me on 19 May 2015. DG was represented by Mr James Dixon and Mr James Fraczyk, the local authority by Ms Justine Lattimer, and the Official Solicitor, AG's litigation friend, by Ms Nageena Khalique QC. At the end of the hearing I reserved judgment. I am sorry that it has been so delayed.
The background
AG was born, as I have said, in 1985. When she was about five years old she was diagnosed as having a moderate learning disability and autistic spectrum disorder. In 2007 she was diagnosed by a psychiatrist as suffering depression. In 2007 AG took a tenancy of a property I shall refer to as OG, though she continued for a time to live with her mother. Thereafter she continued to live either at OG or with DG. In March 2011 AG made an allegation, though without details, that DG had hit her. In June 2011 DG reported that AG had attacked her. She also reported tensions at home and difficulties in caring for AG. A safeguarding investigation ended in July 2011 with an "inconclusive" determination but with a plan for AG to leave DG's home and return to OG with a 24 hour live-in care package, for which the local authority assumed responsibility in August 2011.
During September and October 2011 there were allegations and counter-allegations that AG was being abused physically and emotionally by DG, that the care staff were providing inadequate care to AG, that DG was mismanaging AG's medication, that DG had on two occasions verbally abused a care worker and that AG had on two occasions assaulted a care worker. AG was reported as having said on more than one occasion that she did not want to visit DG. In November 2011 the care provider served notice terminating the care contract. On 16 November 2011 AG moved from OG to a placement at HH. An urgent DOLS authorisation was granted the same day, followed by a standard authorisation on 22 November 2011.
The proceedings
On 24 November 2011 the local authority applied to the Court of Protection.
The final hearing took place before Judge Rogers over five days in late October / early November 2012. His order dated 2 November 2012 was not appealed. His reasons were set out in a judgment which there is no need for me to refer to in any detail. It suffices for me to set out what Judge Rogers said in the later judgment he delivered on 3 September 2013 (paras 10–16):
"That hearing on 2nd November 2012 was very important for a number of reasons. In the first place it made a number of important declarations. It scrutinised the care plan before the court, which was very controversial. It involved the local authority and the Official Solicitor taking different views as to timescale and the mother of AG (DG) herself taking a different view again.
After that hearing I sanctioned, in broad terms, the local authority's care plan, but, to some extent accelerated the timescale that had then been placed before the court. It involved a very important change in AG's circumstances, away from residential care into semi-independent living and that of course had to be managed with great care, both in terms of preparation for her and in the choice of placement and the preparation for her move.
The matter was due to be resolved in about the middle of 2013 and the time scale has, unfortunately, slipped a little bit, hut the matter was restored before me on 27th March where further declarations were made and one of them at paragraph 4 was: "It is in AG's best interest to move to a supportive living placement in … as soon as reasonably practicable (a target for this being achieved being June 2013)."
The local authority of course was continuing in its duty to manage the case and prepare when the matter came back before me on 27th June, but the timing was important. It was about the end of the proposed timescale, as envisaged, and coincided with the collection of evidence and the decision-making internally of the local authority.
On that occasion DG did not attend before the court. She says (and I have no reason to doubt) that she sent a message saying she was ill, but she was not there or represented.
The recital that proceeds the declarations in the June order reads: "And upon the local authority and the Official Solicitor inviting the court to make a decision as to AG's future residence today in order to allow her transition into supportive accommodation to be progressed', was an important one. I was persuaded (particularly on the application of the local authority, with no active opposition from the Official Solicitor, who was keen for there to be progress although to a large extent he remained neutral as to the detail) that declaration number 3 should be made, namely: "It is in AG's best interest to reside at … and to receive care there in accordance with applicant's care plan until her transfer to supportive living accommodation as set out in paragraph 4 below. 4. It is in AG's best interest to move to a supported living placement at [DC] as soon as reasonably practicable. A target for this being achieved being 15th July 2013 and to receive a care package in accordance with her needs as assessed by the local authority, such care package being delivered by the applicant local authority and (an agency I will call) AC.
Notwithstanding that, a further hearing, namely today, was reserved to resolve final matters, particularly in the event that DG attended and opposed any aspect and directions were given and today's hearing was planned."
By the date of the final hearing in September 2013 AG had moved to DC.
At the hearing on 3 September 2013, Judge Rogers heard evidence from AG's allocated social worker, from an independent social worker, Mr Keith McKinstrie (Mr M), and from DG. So far as material for present purposes the order of 3 September 2013 provided as follows:
"AND UPON the court noting that the decision maker in respect of AG's contact with her family is the Applicant Local Authority in consultation with amongst others, AG and her family
AND UPON the Court recording that:
(i) it is the intention of the Local Authority to progress the contact between AG and DG (subject to AG's wishes and feelings and provided it remains in her best interests) so as to gradually increase the frequency of contact and decrease the level of supervision of contact. The first stage in that progression is a planned increase in the frequency of contact from fortnightly to weekly from the week beginning 23 September 2013.
(ii) the independent social worker approves the plan of the Local Authority for the progression of contact and considers it to be in AG's best interests, and recommends that a decrease in the level of supervision of contact from 2 supervisors to 1 should also be attempted from the week beginning 23 September 2013.
(ii) the Court approves the plan of the Local Authority outlined at paragraph (i) above for the progression of contact between AG and DG with the amendment recommended by the independent social worker outlined at paragraph (ii) above.
IT IS DECLARED THAT
1 AG lacks capacity to litigate these proceedings and to make decisions about residence, care, contact and her finances.
2 AG lacks capacity to enter into or terminate a tenancy agreement.
3 It is in AG's best interests to reside at [DC] or such other accommodation as may be identified by the Applicant Local Authority, and to receive a care package in accordance with her needs as assessed by the Applicant Local Authority.
4 It is in AG's best interests to have contact with DG, NG and TG and other members of her extended family, in accordance with her wishes and feelings. Contact shall be in accordance with the Local Authority's contact plan, which shall be kept under regular review by the Applicant Local Authority.
IT IS ORDERED THAT
5 For the avoidance of doubt the Applicant Local Authority has authority to enter into and sign a tenancy agreement and/or terminate a tenancy agreement on behalf of AG."
I shall return to consider the reasons Judge Rogers gave, as set out in his judgment of 3 September 2013, when considering the various grounds of appeal.
The grounds of appeal
DG's grounds of appeal dated 22 September 2013 identify four grounds of appeal. It is said that Judge Rogers: (a) erred in not conducting an adequate assessment of AG's capacity; (b) failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings; (c) made a decision as to where AG should live which by September 2013 was a fait accompli; and (d) acted in breach of Article 8 in directing that DG's contact with AG should be, as it is put,...
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