An English Local Authority v SW, by her Litigation Friend, the Official Solicitor and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan |
| Judgment Date | 02 May 2014 |
| Neutral Citation | [2014] EWCOP 43 |
| Docket Number | No: COP12251613 |
| Court | Court of Protection |
| Date | 02 May 2014 |
[2014] EWCOP 43
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Moylan
No: COP12251613
(Habitual Residence under the Mental Capacity Act 2005)
and
Mr Harrop-Griffiths (instructed by an English Local Authority) appeared on behalf of the Applicant
Mr Rees (instructed by Ben Hoare Bell LLP) appeared on behalf of the First Respondent
Mr Spain (instructed by a Scottish Local Authority) appeared on behalf of the Second Respondent
Approved Judgment
This judgment was delivered in private. The Judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The issue in this case is where an adult ("SW"), who lacks capacity, is habitually resident. This is for the purposes of determining whether the English court has jurisdiction to deal with applications under the Mental Capacity Act 2005 ("the MCA").
The parties to the proceedings are an English Local Authority ("ELA") represented by Mr Harrop-Griffiths; SW, acting through the Official Solicitor, represented by Mr Rees; and a Scottish Local Authority ("SLA") represented by Mr Spain.
SW's mother and stepfather are parties to the proceedings but they have not been present or represented at any hearing, including the hearing before me. They have written a letter to the ELA which I have read. SW has attended part of the hearing.
The parties' respective positions are as follows. The Official Solicitor submits that SW is habitually resident in England and Wales. The ELA and the SLA submit that she is habitually resident in Scotland.
History
The background circumstances are as follows. SW is aged 36. She was born and lived in Scotland until 2009. In 2006 she sustained hypoxic brain injury following a hypoglycaemic attack. When she was in a rehabilitation unit at a hospital in Scotland and subject to a compulsory treatment order under the Mental Health (Care and Treatment Act) (Scotland) Act 2003 she sustained further, serious, injuries.
SW remained in hospital in Scotland until July 2009. Her discharge from hospital was delayed for a considerable period of time because it proved difficult to find a place which was acceptable to SW and which was suitable to accommodate her.
In early 2009 a rehabilitation facility in England was identified. This was visited by SW with her social worker. SW's mother also visited. According to one of the social worker's statements, filed for the purposes of these proceedings, "everyone was in agreement that this placement was suitable for" SW. SW herself contacted the rehabilitation facility in England to find out whether there was a vacancy.
The manner in which SW's move to England was effected was as follows. In July 2009 SW moved from the hospital in Scotland to a hospital in England under a compulsory treatment order. She then moved, it seems immediately, to the rehabilitation facility under a community treatment order. It is clear from the evidence that SW wanted to move to this facility, although formally it was undertaken pursuant to treatment orders as I have described.
The community treatment order made in England lapsed prior to SW moving to her present home in December 2010. I deal with SW's current circumstances later in this judgment.
SW's care is jointly funded by Scottish public authorities. This will continue regardless of my decision. She has also continued to have an allocated social worker from Scotland. SW is subject to financial guardianship orders made by the Scottish courts under which financial guardians have been appointed.
English Proceedings
The current proceedings were commenced when there appeared to be a real prospect of SW's mother and stepfather removing SW from her current home and taking her back to Scotland, in circumstances where there was a significant prospect that her health would be put at risk because they could not adequately care for her. The application has proceeded, and interim orders have been made, on the basis that, even if SW is not habitually resident in England, this court has jurisdiction under the MCA 2005, schedule 3, para. 7(1)(c) because SW is present in England and Wales and the matter has been urgent.
The application was supported by a report from a clinical psychologist which stated that SW lacked capacity to make decisions about where she should live and her care needs. A further report has been obtained for the purposes of these proceedings from another clinical psychologist. In her opinion SW suffered an acquired brain injury which has resulted in "deficits of memory and executive functioning". SW's cognitive functioning continues to be severely impaired, particularly in these areas. She is unable to weigh up information relevant to making an informed decision about where she should live. The psychologist saw no evidence of SW having the ability to weigh one piece of information against another. Her opinions were expressed in concrete and inflexible terms. In the psychologist's opinion, SW also has no insight into her care needs. The psychologist concludes that SW lacks the capacity to decide where she should live.
The evidence establishes that, as a result of her injuries, SW is not able to care for herself without significant support. She is also extremely vulnerable socially.
It is clear from the evidence that SW lacks the capacity to decide where to live and the true nature of her care needs. She does not appreciate the level of support and assistance which she, in fact, needs.
Interim orders have been made, but the issue remains as to whether substantive jurisdiction rests with the English court or with the Scottish court. Proceedings before the Scottish court have been stayed pending the determination of this issue by the English court. The interim orders provide that it is in SW's best interests for her to reside in her current home and that members of staff may take reasonable and proportionate measures to prevent her from leaving and to return her there. It also declared that any deprivation of liberty is authorised under the MCA.
The evidence: in addition to the expert reports, to which I have referred, the evidence comprises statements from social workers, from the solicitor instructed by the Official Solicitor, who has provided accounts of his meetings with SW, and a statement from SW herself. I propose only to summarise the effect of this evidence in the course of my judgment.
Current Circumstances
Turning now to SW's current circumstances: SW progressed well following moving to live in the rehabilitation facility in England. She began to express a wish for more independence. Those responsible for supporting her looked for an alternative home and found her present accommodation. This is specialist supported accommodation. It does not appear that any other alternatives were found or offered to SW. When seen by her solicitor for the purposes of these proceedings, SW told him that she had agreed to move because she wanted to leave where she was. She either stayed there or moved to her current home, and she wanted to move.
SW moved to her current home in December 2010. She has her own flat which is one of a number of separate units; she is a licensee and there is 24 hour support available. SW has remained living there since December 2010, save for a short period at the end of 2011 when she was detained for assessment under section 2 of the Mental Health Act 1983. Her accommodation comprises a one bedroom flat. It is described by her solicitor as "well lived in, with a lot of [SW's] personal possessions visible". In her own statement, SW describes herself as being independent in her flat. She also describes going out, including to an exercise class and a skills for work course. She goes out on her own for short periods; if it is for longer periods she is accompanied by a member of staff. SW is in a relationship with someone who also lives in one of the other flats. Their relationship appears to have commenced at the end of 2012.
Since moving to England, SW has had very few visits from her immediate family, who all live in Scotland. She has also made very few visits to Scotland. The reasons for this are contained in the written evidence and are not as a result of any obstacles being put in the way of such visits taking place. SW speaks to her mother and stepfather by telephone and also has contact with a sibling through Facebook.
At some point – it is not entirely clear from the evidence when – SW began expressing a wish to move from her current accommodation. At different times she has expressed different views about where she would like to live. She has identified a number of places in England and also in Scotland. Her reasons for moving have also varied, although the two principal reasons appear to be that she does not like the area in which she is currently living and she wants to move to a place where she can live more independently and with less support. The latter reflects the fact that SW has very poor insight into her care needs and wrongly believes...
To continue reading
Request your trial
-
R (on the application of Cornwall Council) v Secretary of State for Health
... ... The issue is: which authority should be responsible? ... 2 This ... , the amounts involved in caring for PH and others like him are substantial (some £80,000 per year, ... Part III of the 1989 Act imposes duties on local authorities to provide support for children and ... Judith, an English woman, had been in residential care in Ireland ... ...
-
Re X (A Child); Re Y (A Child)
...Care Proceedings: Scottish Child) [2015] EWFC 89, and, in the Court of Protection, Re PO [2013] EWCOP 3932, [2014] Fam 197, An English Local Authority v SW & Anor [2014] EWCOP 43, The Health Executive of Ireland v PA and others [2015] EWCOP 38, The Health Executive of Ireland v CNWL [2015] ......
-
The Health Service Executive of Ireland v PA and Others
...resident here. 49 Ms Curtis drew attention to the extensive analysis of the test for habitual residence under the MCA in An English Local Authority v SW and Others [2014] EWCOP 43 in which Moylan J considered the line of authorities in children's cases both in courts of this country and th......
-
Re CK (Children)
...as referred to by Lady Hale in A v A para. 54). I considered this issue, in the context of the Mental Capacity Act 2005, in An English Local Authority v SW and Others [2015] COPLR 29, [2014] EWCOP 43, (at paragraph 72) when I referred to the broad assessment as being that: "which is requir......