Llbc v Tg and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Year | 2009 |
| Court | Family Division |
Vulnerable adult – Without notice applications – Liberty to apply – Local authority obtaining without notice orders for transfer of vulnerable adult from family’s care to residential home – Family failing to challenge orders due to lack of understanding of ‘liberty to apply’ provisions – Basis of orders subsequently found to be inaccurate – Vulnerable adult being transferred to family home – Whether without notice applications justified – Whether appropriate to use ‘liberty to apply’ shorthand in without notice orders against lay parties – Whether orders breaching vulnerable adult’s human rights – Human Rights Act 1998, Sch 1, Pt I, arts 5, 8.
TG was a 78-year-old male who suffered from dementia, cognitive impairment and diabetes. In 2006, he was given notice terminating his placement in a care home. Before the claimant local authority (LLBC) could find an alternative home for him, he was admitted to hospital with pneumonia and septicaemia. Whilst there, his daughter and granddaughter, JG and KR, put themselves forward as carers for him. An appointment for LLBC to assess their abilities was made but later cancelled by JG and KR, since they had not received a letter explaining the assessment process. No further assessment was offered or arranged and, considering TG to require 24-hour care, LLBC found him a place in a residential home. On 19 June, the hospital called a meeting, which the family and social workers were invited to attend, in order to resolve the impasse as to where TG would go upon discharge from hospital. When the social workers failed to attend, hospital staff made contact with them and were told that they would not be attending, but would be seeking legal advice with a view to obtaining court orders in relation to TG. Having been notified of no such orders by lunchtime, the hospital discharged TG in an ambulance to the family home. The following day, LLBC succesfully applied at a without notice hearing for orders designed to achieve TG’s transfer to the new residential home. The court was inaccurately led to believe that JG and KR had unilaterally removed TG from hospital, and that they lived in a one-bedroom flat unsuitable for TG. Although the orders made clear that JG and KR could apply to vary, discharge or set aside the orders, no such applications were made because JG and KR did not understand the meaning of the ‘liberty to apply’ provisions. TG was delivered to the residential home on 22 June. The proceedings continued by way of interim hearings and, on 16 March 2007, final declarations were made regarding his capacity to make decisions for himself as to his care and residence. The court also initiated a process
whereby, following a trial period, he went to live with JG and KR full-time pending a further hearing. The local authority in whose area they lived (WLBC) was made a party to the proceedings and accepted responsibility for overseeing the future health and welfare of TG. It was accepted by all parties that TG’s best interests would be served by remaining with JG and KR for the foreseeable future. An issue remained as to whether the proceedings and, in particular, the without notice applications ought to have been issued at all. Since the matters of concern raised by LLBC in June 2006 had been shown to be inaccurate, the focus of its case shifted to a more generalised allegation that JG and KR’s personalities had not been such that it was reasonably possible for them to work with social workers and other professionals required to assist in TG’s care. JG and KR submitted, inter alia, that the orders had deprived TG of his liberty in breach of art 5 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), and breached his right to respect for his family life, as guaranteed by art 8 thereof.
Held – (1) Before a local authority sought to invoke the court’s powers to compel a family to place a relative in a residential care home, the court was entitled to expect that the authority would have made a genuine and reasonable attempt to carry out a full assessment of the capacity of the family to meet the relative’s needs in the community; placement in the family had to be at the top of any priority list before alternative non-family placements were considered. The lack of an assessment in the instant case had in part been due to a lack of communication between LLBC and the family as to what would be involved. Although that failure was not to be seen as the sole responsibility of LLBC, since a failure to communicate might also involve failure to receive information, LLBC’s actions had fallen short of what both the family and the court had been entitled to expect. It was the responsibility of all involved in the future, professionals and family members alike, to make sure that TG’s future care was maintained by relationships that were characterised by a true spirit of co-operation and respect.
(2) The task to be undertaken at a without notice hearing in cases involving vulnerable adults was not dissimilar from that facing a court when an application was made without notice for an emergency protection order regarding a child under s 44 of the Children Act 1989. Although it was not appropriate to import word for word the procedure and guidance that applied to emergency protection orders, which in any event arose within a different statutory context, the general approach of the court in such cases had to be the same; the task was for the court to evaluate, as best it could, the degree of urgency, the risks of intervening by way of making an order and the risks of not intervening at that stage; X Council v B (Emergency Protection Orders)[2007] 1 FCR 512 and Re X (emergency protection orders)[2007] 1 FCR 551 considered.
(3) The practice of using the shorthand legal tag ‘liberty to apply’ in without notice orders which would in all likelihood be served upon lay parties who did not have representation and lacked any legal background was questionable. Given the importance of the issues involved if a lay party was in such a state of ignorance, the practice should cease and be replaced by a recital within the order in plain terms to the effect that: ‘If any person served with this order disagrees with any part of this order and wishes to seek to set aside or vary it, they should make an immediate application to this court to do so’.
(4) There was a duty on social workers to check the details of important allegations which they were intending to bring before a court, in particular at a without notice hearing where draconian orders against a family were sought. Although the proceedings in the instant case had been justified because TG lacked capacity and there had been a legitimate and reasonable dispute as to his best interests, neither the without notice application nor the orders requiring him to be taken to the care home had been justified. Had the court been aware in June 2006 that TG had been discharged from hospital by ambulance to the family home, that the social workers had failed to attend a meeting on the morning of discharge, and that the family’s accommodation had not been unsuitable, it was highly unlikely that it would have made the without notice order. The only substantiated allegation, namely that of JG and KR’s antagonistic relationship with professionals, was only established in general terms and would not, of itself, have justified the without notice removal of TG from his family’s care. However, in the light of JG and KR’s general lack of co-operation and refusal to engage in any expert assessment process, a period of placement in a care home was likely to have been justified had the matter proceeded on an ‘on notice’ basis in June 2006.
(5) JG and KR had failed to establish any breaches of the Convention. The placement fell short of engaging art 5 for a number of reasons: (i) only ordinary restrictions of liberty had applied; (ii) the family had been able to visit on a largely unrestricted basis; (iii) TG had been personally compliant with the placement; and (iv) on no occasion had he objectively been deprived of his liberty. Any interference with his art 8 rights had been justified since it had been (i) in accordance with the law, having been sanctioned by court orders; (ii) for the protection of his health; (iii) necessary, given JG and KR’s refusal to engage with the statutory services; and (iv) proportionate, in that it had preserved the status quo so far as possible and had permitted free and flexible contact arrangements to family members in the interim period.
Declarations would be made, inter alia, that it was in TG’s best interests to remain in the care of JG and KR and for there to be co-operation between JG, KR and WLBC.
Cases referred to in judgmentB BC v S[2006] EWHC 2584 (Fam), [2007] 1 FCR 574, [2007] 1 FLR 1600.
HL v UK (2004) 81 BMLR 131, 17 BHRC 418, 40 EHRR 761, ECt HR.
Moat Housing Group-South Ltd v Harris[2005] EWCA Civ 287, [2005] 3 FCR 123, [2005] 4 All ER 1051, [2006] QB 606, [2005] 3 WLR 691, [2005] 2 FLR 551.
S (a child) (ex parte orders), Re[2000] 3 FCR 706, [2001] 1 All ER 362, [2001] 1 WLR 211, [2001] 1 FLR 308.
W v H (ex parte injunctions)[2000] 3 FCR 481, [2001] 1 All ER 300.
X (emergency protection orders), Re[2006] EWHC 510 (Fam), [2007] 1 FCR 551, [2006] 2 FLR 701.
X Council v B (Emergency Protection Orders)[2004] EWHC 2015 (Fam),[2007] 1 FCR 512, [2005] 1 FLR 341.
ApplicationOn 20 June 2006, McFarlane J made without notice orders in favour of the claimant local authority, LLBC, requiring the second and third defendants, JG and KR, to deliver the first defendant, TG, to a residential home. At a later hearing in the proceedings, it fell to be determined, inter alia, whether the without notice applications had been justified. The facts are set out in the judgment.
Stephen Knafler for LLBC.
Katie Scott for TG.
JG and KR appeared in person.
Helen Knott ...
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