A Local Authority v A Mother
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 10 May 2021 |
| Neutral Citation | [2021] EWCOP 28 |
| Date | 10 May 2021 |
| Court | Court of Protection |
[2021] EWCOP 28
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Knowles
and
and
Mr Foster for the local authority
Mr Mant for DY
The other Respondents were neither present nor represented
Hearing dates: 3 February and 23 April 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered following remote hearings conducted on a video conferencing platform. 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 Respondents 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
The application concerns a young woman who turned 18 in March 2021. I shall refer to her as DY. DY has been diagnosed with two chromosomal duplicities, fetal alcohol spectrum disorder, and a moderate learning disability. Additionally, an independent expert report prepared during these proceedings by Dr Camden Smith concluded that DY had developmental trauma disorder or complex post-traumatic stress disorder, both of which are disorders of the mind or brain. DY is represented in the proceedings by the Official Solicitor as her litigation friend. The applicant is the local authority (“the local authority”) which had responsibility for her as a looked after child since 2012 and now has ongoing responsibility for her adult care services. Both her parents are respondents to the proceedings but neither has taken part nor been represented.
These proceedings commenced as an application dated 17 July 2020 by the local authority for authorisation to deprive DY of her liberty under the inherent jurisdiction of the High Court. The proceedings were transferred to the Court of Protection on 23 July 2020 and eventually allocated to me because DY's capacity to consent to sexual relations was in issue. In September 2020 I made a variety of interim declarations and approved a proposal made by the Official Solicitor that Dr Camden Smith should carry out an assessment of DY's capacity in various domains. A roundtable meeting took place on 12 January 2021 and, given that the Official Solicitor accepted some but not all the conclusions of Dr Camden Smith's report, it was agreed that the matter should be listed for hearing before me to determine the disputed matters.
Consideration of the written evidence made plain that the diagnostic test under the Mental Capacity Act 2005 (“MCA 2005”) was met. Dr Camden Smith's conclusions that DY lacked the capacity to conduct the proceedings and to make decisions about care, contact, social media use and her finances were not challenged. Additionally, there was no challenge to Dr Camden Smith's conclusion that DY had the capacity to decide between residence options which were capable of meeting her assessed needs. The matter in dispute related to DY's capacity to decide to engage in sexual relations.
At the hearing on 3 February 2021, the local authority was of the view that, when unsettled or distressed, DY may be unable to make a clear and rational decision in relation to sexual relations but, when settled or in a familiar situation or surroundings, then DY was able to make a capacitous decision. The Official Solicitor submitted that DY had the capacity to decide to engage in sexual relations contrary to the report of Dr Camden Smith. It was submitted that Dr Camden Smith may have set the bar too high in her analysis of DY's understanding of the distinction between consenting to sexual relations within and outside a relationship.
I heard oral evidence from Dr Camden Smith and from Miss YZ (DY's social worker) and read an extensive bundle of evidence. At the conclusion of the evidence on 3 February 2021, there was some confusion about the local authority's position in that it sought a declaration that DY lacked the capacity to make decisions as to sexual relations in circumstances when she was unsettled or distressed or, alternatively and without notice to the Official Solicitor of the same, a declaration in identical or similar terms pursuant to the inherent jurisdiction. I adjourned the hearing and required the local authority to set out in clear and unambiguous terms its written submissions as to capacity on this important issue with provision for the Official Solicitor to respond. I heard both parties in argument on 23 April 2021 and indicated that I would reserve my judgment for a short period.
Prior to the February 2021 hearing, I met with DY in the presence of her legal representative and her social worker. DY did not attend the hearing on 3 February 2021 but did attend the hearing on 23 April 2021. I was very pleased that she was able to attend. She listened to the submissions and to my questions and told me that she had found the experience interesting.
Background Facts
As I indicated earlier, DY has a diagnosis of two chromosomal duplicities, fetal alcohol syndrome disorder, and a moderate learning disability. Her full-scale IQ has been assessed with a score of 53. When assessed by child and adolescent mental health services in July 2020, DY was considered to be at medium-high risk of child sexual exploitation.
Whilst in the care of her parents, DY was at risk of neglect and physical chastisement and was said to have sexualised behaviour. In September 2011, DY moved to foster carers following the making of an interim care order and, in May 2012, a final care order was made to the local authority. Shortly after being placed in local authority foster care, DY made an allegation of rape which allegedly occurred while she was in the care of her parents. She also made other allegations about their care and about sexual abuse by those with whom the parents associated. A police investigation ensued, and an individual was charged.
During her time in foster care, DY also made a variety of allegations about the care given to her by her carers. Notwithstanding these allegations, DY lived with these same foster carers until January 2019. The placement broke down following a further allegation made by DY.
Alongside the concerns about her placement, DY used her mobile phone in 2017 to send graphic messages of a sexual nature. The police were informed and a child sexual exploitation risk assessment was completed. Once more in 2018, DY was reported to be sending messages of a sexual nature at school. It is fair to say that the local authority has had concerns about DY's sexually inappropriate behaviour both at school and in her foster home since about 2016.
In July 2020, DY's placement with her carer broke down and she returned briefly to live with her father before moving to a residential placement. That placement appears to have been responsible for settling her behaviour and she began attending college. She also formed a boyfriend/girlfriend relationship with a young man called AB. By April 2021 DY had moved to a supported living placement with the aim of working on independence skills and making safe new friendships and social relationships. I record that DY has been compliant with her care plan and cooperative with professionals working with her on her transition from children's services to adult services.
DY is presently in a relationship with the young man called AB. He does not have learning difficulties. DY speaks to him daily and her contact with him is supported by staff.
Capacity to Decide to Engage in Sexual Relations: The Current Law
I have taken into account the principles set out in sections 1–4 MCA 2005 which are applicable in considering/determining capacity and best interests in the Court of Protection. A person must be assumed to have capacity unless it is established that s/he lacks capacity: section 1(2) MCA 2005. The burden of proof therefore lies on the party asserting that a person does not have capacity. The standard of proof is the balance of probabilities: section 2(4) MCA 2005. I have also reminded myself against imposing too high a test of capacity, as to do so would run the risk of discriminating against persons suffering from mental disability and thereby deprive them of autonomy.
In A Local Authority v JB [2020] EWCA Civ 735 (hereafter “Re JB”), Baker LJ re-cast the test of capacity in respect of sexual relations (which previous judgements of the Court of Protection assessed in terms of capacity to “consent”) as whether the person has capacity to “decide to engage in sexual relations” [93]. He held at [100] the following information was relevant to that decision:
1) the sexual nature and character of the act of sexual intercourse, including the mechanics of the act;
2) the fact that the other person must have the capacity to consent to the sexual activity and must in fact consent before and throughout the sexual activity;
3) the fact that P can say yes or no to having sexual relations and is able to decide whether to give or withhold consent;
4) that a reasonably foreseeable consequence of sexual intercourse between a man and a woman is that the woman will become pregnant;
5) that there are health risks involved, particularly the acquisition of sexually transmitted and transmissible infections, and that the risk of sexually transmitted infection can be reduced by the taking of precautions such as the use of a condom.
The relevant information does not include any moral or emotional aspect of sexual relations beyond the simple...
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Court Of Protection Newsletter - June 2021
...that had been built up between SS and her carers. Capacity to decide to engage in sexual relations: A Local Authority-v- DY & Others [2021] EWCOP 28 (10 May Knowles J held that an 18-year old woman did have capacity to decide to engage in sexual relations on a general non-specific basis, no......