Ealing London Borugh Council v KS & Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 April 2008 |
| Neutral Citation | [2008] EWHC 636 (Fam) |
| Date | 03 April 2008 |
| Court | Family Division |
[2008] EWHC 636 (Fam)
Roderic Wood J
Appearances:A Weereatne (instructed by Legal Services, Ealing Council) for the Local Authority; B Hewson (instructed by Fisher Meredith) for KS - the Mother of SK; LU the Sister of SK appeared In Person; A Bagchi (instructed by Irwin Mitchell) for SK by the Official Solicitor; MHAS the Sister of SK appeared In Person; F Morris (instructed by Guile Nicholas) for SR - the Sister of SK
Whether an adult had capacity in relation to various matters; what her best interests required.
SK was the adult daughter of KS, an Afghani national who arrived in Britain in 1991; KS had other daughters, SR, LU and MHAS. SK was thought to be learning disabled; and although she could perform daily living tasks to some degree, there were limitations on her practical skills, exacerbated by illiteracy (though she could speak several languages to a low level of sophistication). She had been treated for depression, and was diagnosed with schizo-affective disorder, which was treated with medication: her compliance was intermittent, and she had been admitted to hospital under the Mental Health Act 1983 on several occasions. She had been married 3 times, all allegedly arranged for immigration reasons; and she had various relationships outside marriage (about which her family disapproved); she had become pregnant on several occasions and was keen to have children, which made her vulnerable to exploitation. She was also subject to manipulation by family, friends and strangers: various instances of this were alleged. It was also alleged that SK had been subject to various indignities and criminal actions by members of her family, including assaults and theft.
A local authority sought declarations that SK lacked capacity to marry, decide her residence or decide on contact with her family; that her capacity to consent to sexual intercourse fluctuated; and declarations as to arrangements made in her best interests in relation to those matters. SR sought a declaration that SK could not consent to sexual relations. Also sought was a declaration that it was lawful and in SK's best interests to operate on her to remove an ovarian cyst; a declaration was also sought in relation to her capacity to consent to contraception and that it was in her best interests to be provided with contraception, but this was adjourned. A declaration was also sought that SK's third marriage, to Mr R, was invalid. Injunctive relief was sought against the family to prevent them removing SK from or encouraging her to leave accommodation arranged for her, contacting her without permission, removing her from the jurisdiction or arranging a marriage for her.
The Proceedings:
1. These are proceedings brought under Part 8 of the Civil Procedure Rules by a London Borough (hereinafter referred to as "the applicant", "the local authority" or "the Borough"). They concern SK who is a protected party within the meaning of the CPR 1998Part 21, r21.1(2). SK is represented in these proceedings by the Official Solicitor as her Litigation Friend.
The Other Parties:
2. The first defendant is SK's mother (KS). The second, third and fifth defendants are the sisters of SK, and the daughters of KS.
3. For the sake of completeness, I should make it clear that the second and third defendants were until recently publicly funded in this litigation. However, because of the extensive overlap between their respective cases and that of their mother, KS, their certificates were withdrawn just prior to the commencement of this hearing. They are accordingly acting in person. I appreciate that they of course feel at a disadvantage in litigation of this seriousness, but I have been vigilant to ensure that their case is properly examined insofar as it both supports, and occasionally may slightly differ from, that of their mother.
The Issues:
Declarations Sought by the Applicant:
4. The applicant seeks (or in the case of (iv) below at one time sought) declarations that SK lacks capacity to:
(i) Marry;
(ii) Decide her residence;
(iii) Decide upon contact with KS, LU, and MHAS, and
(iv) Consent to sexual relations (although the evidence arrayed before me now establishes that at times she will have capacity, and at other times will not). It became clear in the course of the examination of the first of the applicant's witnesses that the applicant (in agreement with the Official Solicitor) was no longer seeking such a declaration. They seek instead a declaration that she has fluctuating capacity in this regard. Thus, in their view, the issue becomes one of whether, and if so how, this vulnerable young woman can be protected at times when she does not have capacity, or come to that even when she does. The fifth defendant does not, however, share this view and for reasons I shall turn to later in the judgment nevertheless seeks a declaration that SK cannot consent to sexual relations (defined as vaginal intercourse).
They further seek best interests decisions by the court, where appropriate to each capacity, in accordance with proposals for SK hereinafter referred to.
5. The applicant seeks a declaration that SK does not have the capacity to consent to contraception, and that it is in her best interests that contraception be provided, it being lawful, necessary and proportionate, but in the light of the evidence now asks that this issue be adjourned.
6. A declaration is further sought from me that it is lawful and in the best interests of SK that she be operated upon under general anaesthetic to remove an ovarian cyst. The applicant has for some time attempted to interest the National Health Service Primary Care Trust in this litigation, and to make an application, but they have steadfastly declined to engage, until sending a letter dated 12 March 2008 (the third day of the hearing) and attending by Dr L (Medical Director of the hospital) but without a legal representative on 17 March. It was initially suggested by the expert obstetric and gynaecological evidence that if I were to make such a declaration, this operation could proceed on 14 April 2008, and, should I make a declaration in relation to the administration of contraception in the form of an IUD, that could be inserted at the same time. For reasons I shall explain later, the idea of contraception is inimical to SK, and therefore it would be highly likely that issues of the forcible administration of general anaesthesia, and issues of restraint of liberty generally, would arise. At the end of the evidence I was asked to "uncouple" these operations, and adjourn the issue of contraception.
7. The applicant seeks a further declaration as to the status, if any, of the marriage between SK and Mr R (her third husband - see below), or rather as to whether or not English law would recognise it as a valid marriage.
Injunctive Relief Sought by the Applicant:
8. The applicant seeks injunctive relief against KS, LU, MHAS, SR and each of them, that they shall be prevented, by themselves or by instructing or encouraging others, from:
(i) Removing or attempting to remove SK from such accommodation as may be arranged for her by the applicant;
(ii) Contacting or attempting to contact SK save as permitted by the applicant;
(iii) Encouraging or persuading or attempting to encourage or persuade SK to leave such accommodation as may be arranged for her by the applicant;
(iv) Removing SK from the jurisdiction of England and Wales, attempting to remove her, or by encouraging or persuading her to leave the jurisdiction; and
(v) Arranging any form of marriage for SK.
[The judge granted a declaration that KS was the birth mother of all her daughters, that having been shown by DNA testing.]
SK:
12. She was born on 1 January 1975, and is now 33 according to a great deal of the earlier official documentation available to me, although her sister SR has stated that SK was in fact born earlier in about 1969, thus making her 38. There is no reliable evidence either way to determine this issue. She is the daughter of KS (a fact now established by DNA testing, although at one stage it was reported, by whom it is unclear, that KS was, or might be, her step-mother).
13. There is disagreement as to how many times her mother KS has been married, and how frequently her father had been married (2, 3 or 4), and it may well be that these multiple marriages are the backdrop to the suggestion of a step-mother relationship referred to in the documentation. It is not just one member of the family who has referred to KS as a "step-mother", for in SR's most recent statement she draws together a number of references from the historical documentation showing that a number of authors have suggested (based on information from unspecified family members from time to time) that this was the relationship between KS and the women who now do indeed prove to be her daughters and not her step-daughters. SR in particular is aggrieved by this revelation of genetic identity, for she claims to have been referred to by KS (and others) as a step-daughter, and discriminated against by them accordingly. In the course of KS's evidence it became clear that she was under the powerful impression that it was SR who had raised the issue of a step-relationship, and who had called her "step-mother", leading to grave affront and a considerable display of anger on the part of KS when describing her feelings on this subject. SR was equally angry, distressed and tearful when describing her perception of familial discrimination against her. It was unhappy to observe that KS, sitting at the back of the court was, throughout that part of SR's evidence, laughing at her daughter, and trading with MHAS and LU looks suggestive of collusive derision for SR. Returning to SK, the evidence does not appear to establish that she was...
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