A Local Authority v AW (by the Official Solicitor as his Litigation Friend)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 20 May 2020 |
| Neutral Citation | [2020] EWCOP 24 |
| Docket Number | Case No: 13490242 |
| Date | 20 May 2020 |
| Court | Court of Protection |
[2020] EWCOP 24
IN THE COURT OF PROTECTION
SITTING IN SHEFFIELD [REMOTELY]
As from:
Sheffield Combined Court
West Bar
Sheffield
THE HONOURABLE Mr Justice Cobb
Case No: 13490242
Miss Jacqueline Thomas QC and Mr Brett Davies (instructed by Community Law Manager) for the Applicant (Local Authority)
Mr Parishil Patel QC (instructed by Simpson Millar) for the Respondent (AW)
Hearing date: 7 May 2020
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 HONOURABLE Mr Justice Cobb
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
This judgment does not establish any great or new point of legal principle. It sets out my reasoning in reaching conclusions in a case which has the characteristics of many which come before the Court of Protection: namely, where the subject of the application is believed to have capacity in making decisions in relation to certain aspects of their life, but not in others; where there are, in such cases, inevitably ‘grey areas’ in between. It recognises the importance of treating each capacity issue as decision-specific and time-specific, as the judicial guidance in PC v City of York Council [2014] 2 WLR 1 1 and B v A Local Authority [2019] EWCA Civ 913; [2019] 3 WLR 685 2 makes clear. Where there are true ‘grey areas’, it illustrates the value of giving the parties and the court the chance, while at all times maintaining an eye on the key objectives laid out in the Court of Protection Rules 2017 3, to examine the evidence forensically, test the assessments and expert views, and achieve, where possible, a degree of clarity in the best interests of the subject. In cases such as this, the “right of every individual to dignity and self-determination” compete hard with the “need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particularly vulnerable situation” ( B v A Local Authority at [35]).
This hearing has been conducted remotely using Skype for Business. It was, I am satisfied, a lawfully constituted hearing 4. It was rightly listed to be in ‘Open Court’ and at the outset of the hearing I raised with counsel the question whether they were satisfied that relevant steps had been taken to ensure that the proceedings were sufficiently accessible to those who may have a wish to attend. I had in mind the terms of the ‘Guidance on Remote Hearings’ (31.3.2020):
“Transparency is central to the philosophy of the Court of Protection. Whilst it will be difficult to ensure that a Skype hearing is as accessible to the public as an ‘Open Court’, this does not mean that transparency can become a casualty of our present public health emergency”.
Although the default position for an attended hearing is that the court will sit in public (per rule 4.3(1)(a)), I am also alive to the fact that where there is a good reason, the court may order that the hearing is in private. It is acknowledged that presently it is not practical to follow the ‘default’ practice, and the essential tenets of Practice Direction 4C are unworkable. I asked the parties whether any member of the press had indicated an intention to attend, and was told that they had not. I was satisfied, with the concurrence of the parties, that it was appropriate to proceed. In this regard, Hayden J's guidance offers the reassurance that:
“… to the extent that discharging the order in such a case engages the rights of the press under Article 10 ECHR, any interference with those rights is justified by reference to Article 10(2), having regard in particular to the public health situation which has arisen”.
The hearing has, of course, been electronically recorded.
The parties
This application concerns the respondent, AW. Within these proceedings he is represented by the Official Solicitor as his litigation friend. He is a 35-year old man, and is currently living in a residential care placement for adults with learning disabilities, which I shall call Windmill House. He has been there for about 7 years. AW suffers from learning disabilities, and an autistic spectrum disorder.
AW has not personally attended or observed the hearing, nor has he met me; I note that some months ago, Ms Hurst, his solicitor, raised both options with AW and he indicated that he did not wish to engage in this process in either way.
The application was brought by the Local Authority (the ‘Local Authority’) on 21 August 2019, seeking declarations and orders to enable it properly to safeguard AW, whilst respecting his autonomy under the Mental Capacity Act 2005 (‘ MCA 2005’).
AW's mother, LJ, is aware of the proceedings but has played no direct part in the hearing. At an earlier hearing in February 2020, I directed that she should or could be invited to apply for party status. She did not do so, but advised the solicitor-advocate for the Local Authority, with whom she discussed the issue, that she wished to “ leave it to the LA and the court…[I] just want AW to be protected.” She was clear that AW has become “ …shutdown…” by the litigation which was having an adverse impact upon her son. As it happens, I noted in the filed papers a record of the fact that AW had earlier taken a view that he would not wish his mother to be a party to the proceedings as “it's about private stuff”.
Background facts
As I said above ([4]), AW has a diagnosis of mild learning disability and autistic spectrum disorder. He is described 5 as having “many skills”, and is assessed as someone who:
“… can appear very able and without further examination would commonly appear more able than he is. This is due to his keenness to engage with others, relatively good self-presentation skills, verbal skills, and ability to learn phrases. He is a very likeable man. It is easy to underestimate his vulnerability and difficulty to apply abstract concepts of safety in relationships due to his autism.”
He is socially vulnerable, and prone to aggressive outbursts.
AW was raised through his childhood and into adulthood at home with his mother (his parents were separated) until 2013. As a child he had attended mainstream primary school, but was transferred to a series of ‘special schools’ thereafter, attaining no academic qualifications. I am told that he can read and write, and has worked as a charity volunteer, and in a sandwich shop.
As an adult, AW has pursued gay relationships. He spends much time, and derives pleasure, from accessing gay websites, gay chat rooms and dating sites; he enjoys watching others performing sexual acts in the chat rooms, which he finds sexually arousing. While his mother was accepting of this when he was living at home, it nonetheless raised concerns for her and those caring for him, particularly given his social vulnerability. The concerns focussed in the main on the matters on which I commented in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 at [4] and [6]:
“[4] … dating ‘apps’ and social media sites may feel safe to some because they pose no immediate threat of violence; however, it is well-recognised that the more insidious threats posed by sexual predators, and those who prey on the wider vulnerabilities of the young, the learning disabled, the needy and the incautious, are no less harmful (indeed they are potentially more harmful) at least in part because of their pervasive nature.
[6] … ‘mate crime’ — where internet users are befriended online with the intention exploiting them financially, physically or sexually — is a particular issue for adults with learning disabilities, as it is for children and other susceptible classes of internet user. Social media and online dating sites have increased the exposure of vulnerable disabled people to those who might exploit them. The learning disabled and other vulnerable users may readily find themselves the victims of such behaviours, which cause
potentially lasting damage to their health. Those with learning disabilities may find themselves unwittingly initiating social media or internet activity which turns out to be harmful or hurtful to themselves or others; this activity is far less likely to be calculated than impulsive – indeed, many may be unaware of the consequences of their actions, confused, naïve, but perhaps surprisingly digitally savvy”.
In this case, the concerns became all too real in 2009 when AW was seriously sexually assaulted by a man who he had met on the internet; the police became involved, although no prosecution followed. A further safeguarding referral followed in 2012, when he moved in with another man who he had met on the Internet. More recently he engaged in inappropriate behaviour with a minor, which unsurprisingly led to police involvement.
The social worker has provided a detailed chronology which contains numerous incidents describing AW placing himself at very considerable risk in the company of men whom he has met through dating sites on the Internet. When these relationships have run into difficulties, or have soured (as inevitably has been the case), AW has often responded aggressively, and has verbally and physically assaulted those around him, sometimes...
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