Lbl v Ryj and Another
| Jurisdiction | England & Wales |
| Judge | MRS. JUSTICE MACUR |
| Judgment Date | 22 September 2010 |
| Neutral Citation | [2010] EWHC 2665 (COP) |
| Docket Number | Case No: COP 11829637 |
| Court | Court of Protection |
| Date | 22 September 2010 |
[2010] EWHC 2665 (COP)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs. Justice Macur
Case No: COP 11829637
MR. JONATHAN COWAN (instructed by Legal Services, LBL) for the Applicant
MR. MARK MULLINS (instructed by Messrs. Campbell-Taylor) for the 2 nd Respondent
MR. ANDREW BAGCHI (instructed by Messrs. Mackintosh Duncan) for the Official Solicitor
Approved Judgment
MRS. JUSTICE MACUR:
These proceedings concern RYJ who was 18 on 28 th April last. There is no issue that she lacks the capacity to litigate and appears therefore by her litigation friend, the Official Solicitor ("the OS").
Applications have been made by the local authority, LBL to the Court of Protection seeking declaration that she lacks capacity to make day-to-day decisions concerning her daily life and to appoint an appropriate officer of the local authority to be made Health and Welfare and Finance Deputy. In the alternative, if RYJ is determined to have capacity, LBL seeks to invoke the inherent jurisdiction of the court, initially seeking those orders commonly following decisions as to "best interests" of an incapacitated person and amounting to empowering the local authority to direct where she should reside, be educated and with whom she had contact and appointing the local authority to receive benefits payable to her.
Her mother, VJ, is the second respondent.
Orders have been made previously as to the anonymisation of all parties' names in any transcripts made and orders produced by the court.
LBL's position has changed in the course of the hearing in that it has now conceded that they are unable to disprove the presumption of capacity to the relevant standard. Apparently they now seek to preserve RYJ's position by way of recitals and preambles to an order ensuring that her decisions are facilitated and articulated with appropriate support. No argument has been advanced by LBL asserting my jurisdiction to dismiss the mother as "appointee" for the purpose of receipt and management of benefits and appoint the local authority in her place in the face of the written arguments made by the OS and on behalf of VJ denying the same. I accept the latter arguments. The appointment of an "appointee" in this regard is in the discretion of the Secretary of State for Works and Pensions. (See below)
VJ denies RYJ's capacity to make decisions as to care, residence and education but, it appears to me, she acknowledges that RYJ has capacity in decisions as to contact.
The O S takes issue on RYJ's behalf with the assertion that she lacks capacity in other than financial matters. He argues against the use of the inherent jurisdiction to make orders which subvert the intention of the Mental Capacity Act 2005 to preserve the autonomy of the individual subject to lack of capacity.
RYJ is diagnosed with epilepsy with complex partial generalised tonic-colonic seizures and drop attacks due to brain injury at birth. She has significant learning disabilities and is subject to a Statement of Special Educational Needs which expires on her 19 th birthday. She has significant difficulties with expressive and receptive language and social communication. She attends the Residential Specialised Educational Facility provided by St. Mary's Wrestwood Children's Trust in Bexhill-on-Sea which also provides for her accommodation and care for 38 weeks of the year. She has been there since 2 nd June 2009 and is extremely happy there.
Her mother argues that she is not receiving the necessary educational provision required by the Statement of Special Educational Needs and has made application to the Special Educational Needs and Disability Tribunal to effect her transfer to another establishment.
In the remaining 14 weeks of the year RYJ has been accommodated either by her maternal Aunt J, who lives with her partner and children and with whom RYJ has a close relationship or accommodation arranged by LBL when family tensions led to the withdrawal of Aunt J's offer to provide accommodation during the long summer school holiday in 2010.
RYJ has expressed a consistent wish to spend the majority of holiday periods with her aunt and extended family. LBL supports her being able to do so. VJ considers that RYJ's affections are alienated by a less than neutral approach by LBL and teaching/support staff at the school to the question of residence/contact venue when not in school.
A brief history may give the context of the applications and go some way to explaining the parties' positions held at various stages in the proceedings.
RYJ is the only child of the mother who originates from Zambia. VJ is well educated, obviously intelligent and articulate. RYJ had medical problems from birth but a formal diagnosis of epilepsy and investigation of the extent of brain damage was delayed until at least 2001. In January 2002 VJ suffered a mental breakdown. RYJ was enrolled at the National Centre for Young People with Epilepsy (NCYPE) in Lingfield, Surrey as a boarder from 2003. VJ withdrew RYJ from school in July 2008 concerned as to RYJ's physical welfare, the possibility that she had been victim of sexual abuse and her under achievement in basic literacy skills. RYJ was then home educated for a year. It is clear that the mother organised numerous extracurricular activities throughout.
RYJ has been accommodated from time to time by the Local Authority since 2003. Difficulties became apparent in the relationship between mother and daughter. RYJ was obviously resistant to weekend home leave and by the age of 15 is said by VJ to have become angry and physically aggressive towards her. The police have been called to numerous incidents of domestic violence. The mother has had recourse to a 'panic room' and button. In addition VJ's pastor made known her concerns for the wellbeing of RYJ as a result of the difficult relationship between mother and daughter. That relationship would, in my view, undoubtedly have suffered in consequence of their being in close and continuous proximity in the school year 2008/09.
It is clear that VJ has never considered herself or RYJ sufficiently well supported by the LBL. LBL has found the mother difficult to work with in that there have been differences in the identification of 'problems' and necessary response. The position has become the more entrenched following commencement of court proceedings.
VJ is necessarily sensitive of perceived criticism of her maternal role to date. She is no doubt hurt by RYJ's express preference to reside with her aunt when not at school and she is extremely protective of her only child.
LBL's position as to RYJ's capacity in matters concerning welfare has fluctuated. It would be cynical to suggest that this fluctuation is associated with decisions articulated by RVJ which do not accord with LBL's views as to her best interests.
The history of court proceedings is set out in the judgment of Moylan J dated 30 th July 2010. I do not repeat them here. I merely update them to record the relevant substance of his order on that date and subsequently on 27 th August 2010. By his order on 30 th July Moylan J declared in the interim that RYJ lacked capacity to litigate and make decisions regarding care, contact, residence, property and financial affairs and it was in her best interests to be accommodated in the summer holidays in accommodation provided by LBL and for the local authority to determine arrangements for care and contact taking into account RYJ's wishes and feelings. The mother was prohibited from attending RYJ's vacation placement save for the purpose of supervised contact and a hearing listed for a review of contact between mother and daughter on 27 th August.
By his order of 27 th August 2010 Moylan J gave directions for this hearing which has been listed before me, directed to consider RYJ's capacity, the question of inherent jurisdiction, issues arising from RYJ's lack of capacity to manage property and her financial affairs, interim contact and interim placement. He also ordered:
"A further hearing shall be listed on a date to be arranged by the Clerk to the Local Authority in consultation with other parties, with a time estimate of three days, to consider the issues of domestic violence by the mother against R which the Local Authority seek to prove, if pursued, and best interest decisions."
Quite clearly, this 'listing' will be dependent upon my judgment and order of today.
The question of RYJ's mental capacity regarding decisions as to her welfare is to be answered by reference to the statutory framework provided by the Mental Capacity Act 2005. The central provisions of the Act are intended to define people who lack decision-making capacity and set out a clear single test for assessing whether a person lacks capacity to make a particular decision at a particular time. The Act has an accompanying Code of Practice providing statutory guidance for its application.
Section 1 sets out the five guiding principles designed to emphasise the underlying ethos of the Act. The relevant principles at this stage are to be found in subsections (2) to (4). Section 1 provides:
(2) "A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he...
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