K (Appellant) Lbx (Respondents) L and Another M (3)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date08 February 2012
Neutral Citation[2012] EWCA Civ 79
Date08 February 2012
Docket NumberCase No: B4/2011/2308

[2012] EWCA Civ 79




COP 1191258T

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Thorpe

Lady Justice Black


Lord Justice Davis

Case No: B4/2011/2308

Lbx (1)
By his Litigation Friend the Official Solicitor (2)
M (3)

Nick Armstrong (instructed by Creighton & Partners) for the Appellant

Hilton Harrop-Griffiths (instructed by LBX Legal Department) for Respondent 1

Victoria Butler-Cole (instructed by Steel & Shamash) for Respondent 2

Respondent 3 did not appear and was unrepresented

Hearing date: 19th December 2011


This appeal raises a short point of law arising out of the judgment of Theis J given on 20 July 2011. Permission to appeal was given by McFarlane LJ on 6 October 2011. He observed:—

"the point of law raised in the Grounds of Appeal arises from an apparent conflict between the line of High Court/COP decisions which are at oDs with a developing line of cases at the same level, of which this is one".


The point is whether or not ECHR Art 8 respect for family life requires the court in determining issues under the inherent jurisdiction or the Mental Capacity Act 2005 to afford a priority to placement of an incapacitated adult in their family or whether family life is simply one of "all the relevant circumstances" which under MCA 2005 S4 the court must consider.


For present purposes it is not necessary to set out the background facts in any great detail. A full exposition can be found in the judgment of Theis J below ( [2011] EWHC 2419 (Fam)) and in a previous judgment of Baker J of 31 st March 2010 relating to L ( [2010] EWHC 2422 (Cop)).


In short, the position was this. L was born on 21 December 1983, one of two sons of K. The other son (D) is 23 years old. L's mother disappeared when he was a baby. For a period of time he was looked after by his paternal aunt and other members of his paternal family initially in Trinidad; from around 1996 he was looked after by his aunt in the UK although having regular contact with K and D who had by then also moved to the UK. He attended a special needs school for a time. From around 2001 he lived in the UK with his father and brother: save that for a period of around five months in 2006–7 he was removed on the initiative of the local authority, following an alleged incident of violence. K has since expressed concern about the care which L received whilst he was in the care of the local authority for that time, particularly with regard to diet and hygiene. At all events L then returned to live with his father and brother in early 2007 and has been with them since. As found, L's family life at home with K and D was of significant benefit to him: the emotional attachments between the three were strong; and the quality of care he received was high. K has himself been fearful of any further separation from his son.


L is now aged 28. K has acknowledged that there is a requirement for a long term plan to move L into local authority arranged care, with a view to L's gaining greater independence of life. K has, however, been concerned that this should not proceed too quickly.


L has, as recorded by the judge, a diagnosis of mild mental retardation. His IQ has been assessed at 59.


There have been protracted proceedings relating to L, initially started by his aunt who had been particularly concerned about his return to his father's care in 2007. Numerous reports over the years have been obtained and there have been many reviews and court hearings. Amongst other things, concern had been expressed that L was in an environment in which he could not articulate his own wishes, as opposed to what he perceived to be the wishes of his father.


During 2009 it was reported that L had progressed. One suggestion was that residential accommodation be identified for him: albeit it was reported that he remained happy living with K and D. The possibility of supported living was thereafter encouraged by the local authority. At the hearing before Baker J, the judge concluded that the balance of evidence favoured L remaining with his father (a position the aunt had strongly opposed): but Baker J went on to say that he "fully endorsed" the plan being put forward by the local authority and supported by other professionals – and, indeed, K himself at that time – that L should move to independent living if that could be achieved.


When the matter eventually came before Theis J, the main issue was whether it was in L's best interests to move to supported living accommodation on a trial basis. By this time a facility called the J placement had been identified. This was about 8 minutes by bus from the family home. It involves supported accommodation with staff on hand day and night. A key worker is available. It was proposed that L live in a flat there, with one other person. The judgment below sets out in further detail what the J Placement would provide L. Amongst other things, he would be supported with managing his accommodation and tenancy, paying bills, shopping, day to day routines, food preparation and so on. Support would also be aimed at helping him access new activities and employment and to manage relationships and establish day-to-day routines. K initially did not oppose such a move in principle; but he expressed a concern that such a move, even on a trial basis, was too soon. K also had concerns about contact. Ultimately, he objected to the proposed trial move: he thought that L was "being pressed too hard at the moment".


In the result, after a lengthy review of the evidence and arguments, Theis J stated that she came to the "clear conclusion" that L's best interests were met by the court authorising a trial period at the J placement.


Mr Armstrong, who has argued the appellant's case forcefully and skilfully directs his attack on a single sentence in paragraph 103 of the judgment to this effect:—

"in my judgment, whilst the court must factor into the balancing exercise it has to undertake, the family life that L clearly has with K and his brother that should not be the starting point as submitted by Mr Armstrong."


Indeed Mr Armstrong stated that if that sentence had not appeared within the judgment he would not have appealed it. He accepts that the judge's discretionary conclusion was plainly within the generous ambit of her discretion.


The judge had identified the issues to be determined at the hearing before her as follows:—

"(i) whether it is in L's best interest to move to supported living accommodation on a trial basis".


The judge's conclusion on that issue was that there should indeed be a limited trial, the outcome of which is to be reviewed at a hearing before her on 16 th-17 th February 2012. All the above shows that the question for our decision falls within a very narrow compass.


The relevant statutory provisions are contained in the Mental Capacity Act 2005. Section 1 establishes the principles. I draw attention to subsection(5):—

"An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."


There is no dispute that L lacks capacity within the definition of section 2.


In determining L's best interests the judge is directed by the checklist in section 4. Within that section I emphasise subsection(4):—

"(4) he must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him."


The other relevant statutory provision is the Human Rights Act 1998 importing the ECHR. For the purposes of this appeal we are concerned only with Article 8: right to respect for private and family life. This provision crosses the borders of a number of specialisations within our civil law. All of us in this court are very familiar with the application of Article 8 (2):—

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."


These words give rise to the familiar test of necessity and proportionality.


Mr Armstrong submits that the judge must not approach the section for best interests' evaluation until he has concluded that what is proposed would not amount to a violation of the incapacitated person's right to family life. Particularly is this so when it is demonstrated that the incapacitated person is enjoying an extant right to family life. By contrast, in the present case, he submitted the right to private life is only a future right and an extremely speculative one. Any family arrangement that is working should be left well alone, absent evidence of harm.


In support of these submissions Mr Armstrong first refers to the recent decision of X and Y v Croatia [2011] ECHR 5193/09. There he emphasised the court's judgment that divesting a person of legal capacity amounts to a serious interference with that person's private life.


More relevant to Mr Armstrong's submission is the decision of Munby J in the case of re S [2003] 1FLR 292. In paragraph 47 Munby J emphasised the diversity of family life in contemporary society. He then continued:—


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1 books & journal articles
  • The role of the Court of Protection in safeguarding
    • United Kingdom
    • The Journal of Adult Protection Nbr. 17-6, December 2015
    • 14 December 2015
    ...is, for instance, no presumption in relation to incapacitated adults that they should be cared for bytheir family at home: K v. LBX (2012) EWCA Civ 79; (2012) COPLR 411.VOL. 17 NO. 6 2015jTHE JOURNAL OF ADULT ReferencesAshton, G. (Ed.) (2015), Mental Capacity Law and Practice, Chapter 11, 2......

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