Llbc v Tg, Jg and Tr [Fd]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MCFARLANE,Mr Justice McFarlane |
| Judgment Date | 14 November 2007 |
| Neutral Citation | [2007] EWHC 2640 (Fam) |
| Court | Family Division |
| Date | 14 November 2007 |
| Docket Number | Case No: FD06P01178 |
[2007] EWHC 2640 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mcfarlane
Case No: FD06P01178
Stephen Knafler (instructed by LLBC) for the Claimant
JG and KR appearing in person
Helen Knott (instructed by WLBC)
Katie Scott (instructed by Official Solicitor) for the First Defendant
Hearing dates: 10 th September 2007, 11 th September 2007, 12 th September 2007, 13 th September 2007, 14th September 2007
FINAL JUDGMENT
If this Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONORABLE MR JUSTICE MCFARLANE
This judgment is being handed down in private on …………. It consists of ……. pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.has been emailed to you it is to be treated as 'read-only'.
You should send any suggested amendments as a separate Word document.
Introduction
These proceedings relate to the best interests of TG, who was born on 15 th July 1929 and is therefore aged 78 years. Sadly, in recent times, Mr G's health has not been good and, in particular, he suffers from dementia and cognitive impairment. His decline also follows a stroke in 2001. From some time in mid 2003 TG had been resident in a care home, namely the Lime Tree Court Care Home. That placement was terminated by the care home staff giving notice in March 2006. However, before the authorities could find an alternative home for TG, he contracted pneumonia and septicaemia and was admitted to St George's Hospital on 3 rd May 2006. Whilst TG was in hospital there was a dispute between the claimant local authority and two family members, JG and KR, as to his future care. JG is one of TG's daughters and KR is her daughter. These two ladies put themselves forward as carers for TG on the basis that he would come to live with them once he was well enough to be discharged from hospital. TG had not previously lived with JG and KR and, for various reasons to which I will refer in due course, the local authority considered that TG was not best placed in their care but required 24 hour care in a residential home. A place in such a home, Tower Bridge Care Centre, was found for TG, but, before the local authority had achieved TG's placement there, he was discharged by the hospital to the care of JG and KR on 19 th June 2006.
These proceedings were commenced on 20 th June 2006 when the claimant local authority applied to me as the 'urgent applications judge' at a without notice hearing for orders designed to achieve TG's transfer to the Tower Bridge Care Centre. On that date I made without notice orders requiring JG and KR to deliver TG to the Tower Bridge Care Centre by 2.00pm on 21st June. That time frame was extended by a further 24 hours under an order made the following day by Black J. Both orders made it plain to legally trained eyes that JG and KR had liberty to apply to the court to vary, discharge or set aside the order, and, in particular, the order of the 21 st June specified the precise court to which they could make such an application prior to noon on the 22 nd June. No application to set aside the order was made and JG and KR complied with the orders and caused TG to be delivered to the Tower Bridge Care Centre on 22 nd June 2006.
Since that time these proceedings have continued by way of interim hearings, the most significant of which took place on the 16 th March 2007. At that hearing I made final declarations as to TG's capacity to make decisions for himself as to his care and residence. At that hearing also, the court set in train a process by which TG started to spend time staying for short periods with JG and KR on a trial basis. Those trial visits went well and in May 2007 he moved to live with them full time pending the present hearing.
JG and KR have played a full part in the many interim hearings that have taken place and have regularly communicated with the court and the parties during the period between hearings. In court they have represented themselves (save for on the occasion of the first hearing when they were represented by solicitors and counsel) and have had the support in court of the Personal Support Unit.
The care provided by JG and KR, with some external additional support, has proved to be good and it is now accepted by all parties to these proceedings that TG's best interests will be served by remaining in the care of JG and KR for the foreseeable future. Given that the progress of his condition involves periods of deterioration which then establish a new, lower, level of functioning, it is accepted by all parties that should there be any further deterioration, the care plan, and the family's ability to provide for his needs in those worsened circumstances, will have to be reviewed.
The claimant local authority is the local authority [LLBC] for the area in which TG was living at the time that he was first admitted to a residential care home. JG and KR live in a different local authority area, WLBC. WLBC have been party to the more recent hearings in this case and accept that they will now take on responsibility for overseeing the health and welfare of TG who is a vulnerable adult now living in there area. WLBC has carried out its own comprehensive assessment of TG and his needs, together with the ability of JG and KR to provide for those needs. JG and KR anticipate that they will be able to work with WLBC in a way that has not been a feature of their relationship with the claimant local authority.
Thus, at the conclusion of these proceedings, there is a wide measure of agreement as to the detailed care plan for TG and, subject to some judicial input as to the wording of any declarations as to best interests that are to be made, that area of the case is no longer controversial.
What has always been, and remains, controversial between JG and KR and the claimant local authority is the need for proceedings to have been issued in the first place and, in particular, the without notice orders that were made requiring TG to be placed in a care home rather than remaining in the family's care. Despite the fact that there is a large measure of agreement as to the outcome of the case, I have permitted JG and KR to raise the issues that they wish to raise in relation to these controversial matters. They do so by way of complaints in general, but also in couching these complaints in terms of breaches of the rights that they and TG may have under the European Convention on Human Rights, in particular Articles 5, 6 and 8.
I will shortly list the key issues raised by JG and KR, before rehearsing the evidence in relation to each issue and, in due course, setting out my conclusions. Before doing so it is right to record that a theme will readily be detected as running through much of the evidence and many of my conclusions. That theme relates to the failure on the part of the professionals, on the one hand, and the family, on the other to communicate with each other throughout this process. This failure to communicate, the responsibility of which is shared, in my view, by both the professionals and the family, directly led to the claimant's decision to instigate these proceedings and to the confrontational, and at times largely intractable, circumstances thereafter. The adverse effect of this bilateral failure upon TG's best interests is, to me at least, obvious.
The Issues
(1) The issues placed before the court in June 2006
In its Part 8 claim form the local authority raised the following matters of concern about TG's placement with JG and KR
(i) Their accommodation was unsuitable, being a one bedroom flat;
(ii)The claimant believed that TG returned from visits with JG and KR in a volatile state as a result of having been fed sweets, fizzy drinks, and crisps;
(iii) TG, it was said, needs a much higher level of support than that which can be provided by JG and or KR;
(iv) JG and KR removed TG from hospital on the 19 th June 2006 and took him to their home.
(2) Subsequent issues
As the proceedings have developed, the focus of the claimant's case against the family has shifted away from those earlier stated concerns, to a more generalised allegation that JG and KR's personality and presentation is such that it is not reasonably possible for them to work with the social work and other professionals who must be involved in assisting them to provide care for their father/grandfather. The claimants now see this as the most important adverse element in the case. JG and KR complain that it has been brought into the proceedings to bolster the claimant's case unfairly as it was not part of the original claim.
A separate matter that has also achieved prominence since the proceedings began relates to the administration of TG's finances. Questions have been raised as to how TG's money, both income and capital, has been spent by JG and KR. Some family members have alleged, in terms, that JG and KR's motive for having TG in their care is so that they can obtain access to his funds for there own benefit.
(3) Human Rights Issues
In summary JG and KR's case in relation to the ECHR is that:
a) TG was unlawfully detained in breach of Article...
To continue reading
Request your trial
-
Re A (A Child)(Deprivation of Liberty); C (Vulnerable Adult)(Deprivation of Liberty)
...adopted by Sir Mark Potter P in A Local Authority v E [2007] EWHC 2396 (Fam), [2008] 1 FLR 978, at paras [66]–[67], by McFarlane J in LLBC v TG, JG and KR [2007] EWHC 2640 (Fam), [2009] 1 FLR 414, at paras [30], [33], and by Roderic Wood J in Re SK; A London Borough Council v KS and LU [20......
-
Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor)
...Finally, there are the domestic community care cases: DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, LLBC v TG, JG and KR [2007] EWHC 2640, [2009] 1 FLR 414, G v E, A Local Authority and F [2010] EWHC 621 (Fam), [2010] 2 FLR 294, appeal dismissed G v E (By h......
-
Cc v Kk (1St Respondent) Stcc (2Nd Respondent)
...of institution associated with a deprivation of liberty. It is, in the words of McFarlane J (as he then was) in LLBC v TG, JG and KR [2007] EWHC 2640 [2009] 1 FLR 414 "an ordinary care home where only ordinary restrictions of liberty apply". By all accounts, it is a well run nursing home wh......
-
Re A (A Child)(Deprivation of Liberty); C (Vulnerable Adult)(Deprivation of Liberty)
...P in A Local Authority v EUNK[2007] EWHC 2396 (Fam), [2008] 1 FLR 978, at paras [66]-[67], by McFarlane J in LL BC v TG, JG and KRMHLR[2007] MHLR 203, [2009] 1 FLR 414, at paras [30], [33], and by Roderic Wood J in Re SK; A London Borough Council v KS and LUMHLR[2008] MHLR 256, [2008] 2 FLR......