K v A Local Authority and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Date | 2012 |
| Court | Court of Appeal (Civil Division) |
Incapacity – Best interests – Right to respect for family life – Proceedings being commenced in relation to adult with mild mental retardation – Adult living with father and brother but local authority encouraging possibility of supported living – Placement being identified close to family home – Judge holding that trial period at placement would be in adult’s best interests – Father appealing against judge’s reasoning – Whether necessary to consider whether placement violating incapacitated person’s right to respect for family life before evaluating best interests – Human Rights Act 1998, Sch 1, Pt I, art 8 – Mental Capacity Act 2005, s 4(4).
L, who was born in 1983, had a diagnosis of mild mental retardation. His mother disappeared when he was a baby and, for a period of time, he was looked after by his paternal aunt and other members of his paternal family, initially in Trinidad. From 1996, he was looked after by his aunt in the United Kingdom, although he had regular contact with his father and brother, who had by then also moved to the UK. He attended a special needs school for a time. From around 2001, he lived with his father and brother, save that for a period of around five months in 2006–2007 he was removed on the initiative of the local authority, following an alleged incident of violence. The father subsequently expressed concern about the care which L had received whilst 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. Protracted proceedings ensued relating to L, initially started by his aunt who had been concerned about his return to his father’s care. Numerous reports were obtained and many reviews and court hearings took place. Amongst other things, concern was 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, although it was reported that he remained happy living with his father and brother. The possibility of supported living was thereafter encouraged by the local authority and, by the time of a hearing in July 2011, the main issue was whether it was in L’s best interests to move to supported living accommodation on a trial basis. A facility had been identified which was approximately eight minutes by bus from the family home; it was proposed that L live in a flat there, with one other person. The placement would allow L to be supported with managing his accommodation and tenancy, paying
bills, shopping, and day-to-day routines, as well as offering support aimed at helping him to access new activities and employment and to manage relationships. The father did not oppose such a move in principle, but ultimately objected on the basis that it was too soon for such a move to take place, even on a trial basis. The trial judge ruled that L’s best interests would be met by the court authorising a trial period at the placement. She held that, although the court had to factor into the balancing exercise the family life which L clearly had with his father and brother, that was not the starting point; the court had, as set out in s 4(4) of the Mental Capacity Act 2005, to consider all the relevant circumstances when undertaking that exercise. Section 4(4) provided that, in determining what was in a person’s best interests, the person making the determination, ‘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 father appealed against the judge’s reasoning, submitting, inter alia, that she should not have approached the section for evaluation of best interests until she had concluded that what was proposed would not amount to a violation of the incapacitated person’s right to respect for their family life, as protected by art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998).
Held – It was established that, in 2005 Act cases, the correct approach was for the trial judge to first ascertain the best interests of the incapacitated adult on the application of the s 4 checklist. The judge should then ask whether the resulting conclusion amounted to a violation of art 8 rights and whether that violation was nonetheless necessary and proportionate. In the instant case, the judge’s direction was an excellent illustration of how a trial judge should approach the determination of a best interests issue when the local authority’s proposal was met by a plea from the family that it amounted to an unnecessary and/or disproportionate violation of the art 8 rights of the incapacitated adult. The appeal would, accordingly, be dismissed (see [35], [37]–[38], below); Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2003] 1 FLR 292 distinguished.
Cases referred to in judgmentsA (a child) (deprivation of liberty), Re, Re C (vulnerable adult) (deprivation of liberty)[2010] EWHC 978 (Fam), [2010] 2 FLR 1363.
D County Council v LS[2009] EWHC 123 (Fam).
F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2001] Fam 38, [2000] 3 WLR 1740, [2000] 2 FLR 512, CA.
F v Lambeth BC[2001] 3 FCR 738, [2002] 1 FLR 217.
Hillingdon London BC v Neary [2011] EWHC 1377 (COP), [2011] 3 FCR 448, [2011] 4 All ER 584, [2012] 1 FLR 72.
KD (A Minor) (Ward: Termination of Access), Re [1988] FCR 657, [1988] 1 All ER 577, [1988] AC 806, [1988] 2 WLR 398, [1988] 2 FLR 139, HL.
LLBC v TG[2007] EWHC 2640 (Fam), [2009] 2 FCR 428, [2009] 1 FLR 414.
Local authority (A) v E[2007] EWHC 2396 (Fam), [2008] 1 FCR 389, [2008] 1 FLR 978.
LT (vulnerable adult) (decision making: capacity), Re[2010] EWHC 1910 (Fam), [2011] 1 FLR 894.
MM (an adult), Re, A Local Authority v MM[2007] EWHC 2003 (Fam), [2008] 3 FCR 788, [2009] 1 FLR 443.
Pretty v UK[2002] 2 FCR 97, [2002] 2 FLR 45, ECt HR.
R (on the application of Razgar) v Secretary of State for the Home Dept[2004] UKHL 27, [2004] 3 All ER 821, [2004] 2 AC 368, [2004] 3 WLR 58.
S (Adult Patient) (Inherent Jurisdiction: Family Life), Re[2002] EWHC 2278 (Fam), [2003] 1 FLR 292.
SK (vulnerable adult: capacity), Re[2008] EWHC 636 (Fam), [2008] 2 FLR 720.
X v Croatia [2011] ECHR 5193/09, ECt HR.
AppealThe father of an incapacitated person born in 1983 appealed against the decision of Theis J on 20 July 2011 ([2011] EWHC 2419 (Fam)) that that person’s best interests were met by the court authorising a trial period at a supported living placement close to the family home. The facts are set out in the judgment of Thorpe LJ.
Nick Armstrong (instructed by Creighton & Partners) for the father.
Hilton Harrop-Griffiths for the local authority.
Victoria Butler-Cole (instructed by Steel & Shamash) for L by his litigation friend, the Official Solicitor.
8 February 2012. The following judgments were delivered.
THORPE LJ.[1] This appeal raises a short point of law arising out of the judgment of Theis J given on 20 July 2011 ([2011] EWHC 2419 (Fam)). 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/[Court of Protection] decisions which are at odds with a developing line of cases at the same level, of which this is one.’
[2] The point is whether or not respect for family life pursuant to art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) (the Convention) requires the court in determining issues under the inherent jurisdiction or the Mental Capacity Act 2005 (the 2005
Act) 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 s 4 of the 2005 Act the court must consider.
[3] 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 and in a previous judgment of Baker J of 31 March 2010 relating to L ([2010] EWHC 2422 (COP)).
[4] In short, the position was this. L was born [in] 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 United Kingdom although having regular contact with K and D who had by then also moved to the United Kingdom. He attended a special needs school for a time. From around 2001 he lived in the United Kingdom with his father and brother: save that for a period of around five months in 2006–2007 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.
[5] 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.
[6] L has, as recorded by the judge...
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