LBX v K and Others

JurisdictionEngland & Wales
CourtFamily Division
JudgeMrs. Justice Theis
Judgment Date19 June 2013
Neutral Citation[2013] EWHC 3230 (Fam)
Docket NumberNo. FD07P00104
Date19 June 2013

[2013] EWHC 3230 (Fam)



Royal Courts of Justice


Mrs. Justice Theis

No. FD07P00104

(1) K
(2) L (by his litigation friend, the Official Solicitor)
(3) M

(As approved by the Judge)

Mrs. Justice Theis

This matter concerns a young man who I shall refer to as "L" for the purposes of this judgment, as he has been referred to in previous decisions). He was born on 21 st December 1983, so he is now 29 years of age. He has a diagnosis of mild mental retardation and some learning difficulties with an IQ that has been assessed at 59.


These are proceedings under the Mental Capacity Act 2005. The court had determined that L lacks capacity to make certain decisions, in particular where he should live or who he should have contact with. The applicant in these proceedings is the London Borough of Waltham Forest and the respondents are L, with the Official Solicitor acting as his litigation friend, his father, (who I shall refer to as "K", which is how he has been referred to in previous judgments) and his aunt, (who I shall refer to as "M", which is the way that she has been referred to in previous judgments). This hearing was listed to determine issues relating to best interests.


This will be the fifth substantive judgment in this matter, the first being Baker J.'s dated 31 st March 2010 [2010] EWHC 2422 (COP). I gave a judgment on 20 th July 2011 [2011] EWHC 2419 (Fam), that decision was the subject of an appeal by K which the Court of Appeal dismissed in their judgment on 8 th February 2012 [2012] EWCA Civ 79. I gave a further judgment following a hearing on 6 th March 2012 [2012] EWHC 439. I refer to those judgments for the detailed background to these proceedings. For completeness, within the current application, I made a determination earlier this year on interim contact, which was appealed by K. Permission to appeal was refused by the Court of Appeal.


This hearing was prompted by an application made by M in October 2012 as a result of issues that arose concerning her contact with L. That was followed by an application made by the local authority in February 2013 to determine best interest decisions in relation to L. On the eve of this hearing, which was listed for five days, the Official Solicitor filed a position statement stating they wanted the court to determine the discrete issue of capacity first. The local authority and K objected, but not strenuously, to that course. It was possible to arrange the evidence so that the evidence relevant to that issue could be called first and not without some hesitation I acceded to that application on behalf of the Official Solicitor.


The preliminary issue, therefore, that I have to determine is whether there is an evidential foundation that L is more likely than not to have the potential to achieve mental capacity to make decisions regarding residence and contact, and some specific care related decisions. The Official Solicitor submits that he is. That is opposed by the local authority and K. The burden of proof in relation to capacity is on the local authority, and the standard of proof is the balance of probabilities. Ideally, it would have been preferable to have more time to consider this judgment, but I am anxious about any further delay for L. What happens next is dependent upon my decision as to what further steps, if any, need to be taken to investigate capacity. The evidence concluded yesterday afternoon. The legally represented parties provided written submissions this morning. M, who represents herself, has not provided any written submissions. I am giving this judgment today on what is the third day of the five-day hearing.


I am going to take the background to this matter relatively shortly. The detailed accounts of the background, as I have said, are in the earlier judgments. L is the eldest of K's two sons. His younger brother, D, lives with his father, although I think he also spends some time abroad. L's mother has taken no active part in his life. L was initially cared for by M and the wider family in Trinidad before, in 1996, being cared for here by M. He moved to live with K in about 2001. He lived there with his father and D, save for a period of about five months in 2006 to 2007 when he was placed in the care of the local authority. This following an alleged incident of violence, during which he had no contact with K or D. In 2007 he returned to K's care in circumstances that remain in dispute. This resulted in M issuing proceedings in 2007 under the inherent jurisdiction which, following implementation of the Mental Capacity Act, converted into an application in the Court of Protection.


That application resulted in a number of hearings where the court determined a number of issues. L's capacity was not in issue in those hearings. It was accepted he lacked capacity. What was in his best interests was in issue and the court was required to make best interest decisions in accordance with the principles in s.4 of the Mental Capacity Act 2005. Mr. Justice Baker determined that there should be an investigation about the options for independent living for L. This was followed by a subsequent hearing before me in July 2011 when I determined that L should be placed on a trial basis in supported living at the J placement.


The matter returned to me in March 2012 when I concluded that L's best interests required his placement in the J placement to continue, which is where he still resides. I set out in the order in March 2012 a regime of contact between L and K and L and M. This placement has not been without its difficulties, about which there remains a considerable dispute between the parties. K has made a number of complaints about the care and support L receives in the J placement, which he considers to be inadequate in a number of respects. K also believes that L is subjected to influence by those members of staff in the J placement, members of the staff from the local authority and, in particular, his advocate. This is not accepted, and the local authority and the staff at the J placement have found it difficult to manage K's behaviour and attitude towards them and suggests that at times K has not acted in L's best interests. This is disputed, in turn, by K.


Sadly, the conflict between the local authority and K and M and K has not reduced despite the passage of time since these proceedings started nearly six years ago, which, irrespective of where the fault lies, has been unhelpful for L as he, as has been clear by the papers in this case, remains caught in the middle.


In October 2012 M made a bare application, supported by a statement, in which she complained about how K was preventing her from having contact and asked for L to live with her. The matter came back before me in January this year when I gave the local authority permission to make an application in respect of L's welfare. The local authority made that application, by which it seeks an order that it is in L's interests for him to move from the J placement into a supported living placement, in effect his own supported flat.


Unfortunately, following their return from an extended holiday in Trinidad, contact between L and K broke down. The circumstances of that breakdown are disputed, as are L's wishes not to resume that contact. Following the hearing on 8 th March, when I refused to make an order for contact against L's wishes, the parties agreed to try mediation which took place on 16 th May. There was some progress, but much remains in dispute. There was some limited contact arranged between L and K in April in the presence of a member of staff from the J placement. That was not successful, and, as a result, K has not seen L since, I think, late April this year. L has continued to have contact with M. There have been some recent difficulties, but the focus of M's concerns in this hearing has been about L accompanying her on an extended holiday to Trinidad later this year. She does not pursue any effective application in relation to caring for L.


The court next needs to consider the legal framework on the issue of capacity. That is set out very clearly in the opening sections of the Mental Capacity Act 2005. Section 1 deals with the principles:

"(1) The following principles apply for the purposes of this Act.

"(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 makes an unwise decision.

"(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.

"(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action."

Section 2 deals with the preliminary position in relation to capacity. Section 2(1) is the material part of that section which reads as follows:

"(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."

Section 3 then deals with inability to make decisions and reads as follows:

"(1) For the purposes of section 2, a person is unable to make a...

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