London Borough of Wandsworth v AMcC and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 October 2017 |
| Neutral Citation | [2017] EWHC 2435 (Fam) |
| Date | 2017 |
| Court | Family Division |
Vulnerable adult – Inherent jurisdiction – Relief designed to protect adult from a return to dangerous home environment while capacity assessed.
The local authority applied for care orders in relation to three teenage children. Interim care orders were made in November 2015 and a multidisciplinary assessment of the family was ordered, to include a full psychiatric assessment of the mother. The mother proved unwilling to engage with the assessment and a number of adjournments to permit the mother to obtain legal representation followed. The mother eventually announced that she was prepared to attend the assessment and the court decided to assess her real willingness to engage.
After hearing the mother’s evidence at the issues resolution hearing, the judge made final care orders without a final hearing, despite submissions from all parties arguing against this. The appeal was allowed and the care orders set aside, on the basis that the process adopted by the judge had so undermined any objective concept of procedural fairness as to undermine the integrity of his decision. The care proceedings therefore resumed. The children, now aged 13, 15 and nearly 18, had been placed in separate residential units (an attempt to place them together in foster placement having proved unsatisfactory). An elder child, now 21 years old, was still living with the mother.
The full psychiatric assessment of the mother suggested that her functional difficulties rendered her unable to care for her children, despite the great love she had for them, in part because she was unable to disentangle her own anxieties from theirs. Her behaviour seemed to reinforce the children’s own instinct to recoil from the world: the 21-year-old son had left the family home only once in the past three months. Not only the mother’s presentation but also the 21-year-old’s presentation, and that of both the 13 and the 17-year-old, potentially met the criteria for a diagnosis of autism/Asperger’s Syndrome. Other evidence suggested that the mother’s difficulties meant she was unable to maintain a clean home environment or to promote the children’s physical self-care, including feeding themselves.
The authority was now seeking care orders in relation to the two younger children, both expressing a strong wish to remain in their current placements, where they were doing very well. The 17-year-old had indicated that, while he currently had no wish to have any contact with the mother or with his siblings, he did now wish to return home. One expert had assessed the boy as extremely disturbed, believing that he had contemplated suicide as preferable to looking after himself. The court no longer had jurisdiction to make a care order in respect of the 17-year-old boy and the local authority was extremely concerned that he would be vulnerable if not protected. The authority sought permission to pursue proceedings on his behalf in the Court of Protection, presenting, in support, an ‘Assessment of Mental Capacity’, which concluded that due to his lack of insight and inflexibility of thought the boy ‘lacked mental capacity to make the decision as to where he should live’.
Held – (1) The threshold criteria pursuant to s 31(2) of the Children Act 1989 was met abundantly; it did not, in this case, connote blame or attract censure, being the consequence of the overwhelming challenges faced by a mother with developmental difficulties parenting children with developmental difficulties. Care orders should be made in relation to the two younger children, on the basis of the current care plan and proposals for both to have contact with the mother and their siblings (see [22], [30], [34], [87], below).
(2) One of the key principles of the Mental Capacity Act 2005 was that a person should not be treated as unable to make a decision until everything practicable had been done to help them make their own decision (s 1(3)). A prerequisite to evaluation of a person’s capacity on any specific issue was at very least that they had had explained to them the purpose and extent of the assessment itself; failure to explain this would probably be fatal to any conclusion and would, at least, gravely undermine any conclusion, applying PC and anor v City of York Council[2013] EWCA Civ 478 (see [47], [49], below).
(3) The cogency and quality of evidence required to justify a declaration of incapacity, pursuant to s 15 of the 2005 Act, would be greater than that required to establish the interim test under s 48 (designed to cover the situation where the court lacked the requisite material to make a s 15 declaration but was required to authorise some protective action on an interim basis). However, the presumption of capacity was omnipresent in the legislation and there must be reason to believe that it had been rebutted, even at the interim stage. Whilst it would rarely be possible at the outset of proceedings to elicit evidence of the cogency and weight required by s 15, s 48 was a different test, with a different and interim objective, not a lesser test. ‘Reason to believe’ that an individual lacked capacity must be predicated on solid and well-reasoned assessment in which the individual’s voice could be heard clearly and in circumstances where his own powers of reasoning had been given the most propitious opportunity to assert themselves. A ‘possibility’, even a ‘serious one’ that the individual might lack capacity did not do justification to the rigour of the interim test. Neither was ‘an unclear situation’, which might be thought to suggest ‘a serious possibility’ that the individual lacked capacity, sufficient to satisfy either s 48 or the underpinning philosophy of the 2005 Act. To the extent that Re F (mental capacity: interim jurisdiction) [2009] EWHC B30 (Fam) or Re FM and ANR[2016] EWCA Civ 645 (a dismissal of permission to appeal) endorsed a less rigorous test, the court was not bound by either. Indeed, the latter suggested a worrying and dangerous elision between autism and incapacity (see [56], [58], [63]–[65], [67], [69], below).
(4) The s 48 test was not met in this case. The court did not believe that the purpose of the assessment had been explained to the boy; the analysis of the extent of his understanding of the relevant information had been superficial and incomplete; the ultimate reasoning underpinning the conclusions had been vague and unsatisfactory. It would be entirely disrespectful to the boy to curtail any aspect of his autonomy on the basis of such unsatisfactory evidence; it would also reinforce the boy’s own heightened anxieties about the unmarshalled power of the state and thus potentially undermine the welfare objectives. The court was entirely unclear as to whether the boy had capacity to decide where he would live or not. Accordingly, even on an interim basis, the presumption of capacity had not been rebutted. These were important principles which must never be eclipsed by a paternalistic emphasis on welfare (see [47], [71], below).
(5) The court could exercise the declaratory and injunctive powers of the High Court under its inherent jurisdiction if satisfied that the boy was a vulnerable adult, at risk of harm, whose autonomy had been compromised in relation to his decision-making processes and who might be sufficiently protected by such relief, applying Re L (vulnerable adults: court’s jurisdiction) (no 2) [2012] 3 WLR 1439 and Re SA (vulnerable adult with capacity: marriage)[2005] EWHC 2942 (Fam). On general principles any injunction granted must serve a useful purpose and have a real possibility of being enforced in personam. The court was required to identify a balance between the protection of the individual and respect for his liberty and any order must reflect the tension between these two competing rights and obligations. Any interference must be the minimum possible and proportionate to the identified objectives.
It should also be for the shortest duration. It followed that the need for any restriction imposed should be kept in regular review (see [72], [73], [77], [85], [86], below).
(6) The inherent jurisdiction permitted the boy to be protected whilst investigations resumed. The question was how he could most effectively be protected with the least intrusive and most proportionate curtailment of his autonomy. The starting point was that a thorough, MCA compliant, assessment of capacity was to be undertaken immediately. In the circumstances of this case, this should be undertaken by a consultant child and adult psychiatrist (this would not be possible or necessary in every case). The identified danger to the boy’s welfare development was a return to the mother’s home, described by the experts as a ‘kind of suicide’ for him. The injunction should therefore not be drafted in terms which compelled him to live in any particular place but instead in terms restraining him from living at the mother’s home. This was a proportionate intervention, to endure only until the question of capacity and of jurisdiction was reconsidered further, once a detailed capacity assessment was available (see [82]–[84], [88], below).
Statutory provisions referred to
Children Act 1989, s 31(2), s 38.
Mental Capacity Act 2005, s 1, s 1(3), s 2(1), s 4, s 15, s 48.
Cases referred to
B (adult: refusal of medical treatment),Re[2002] EWHC 429 (Fam), [2002] 2 FCR 1, [2002] 2 All ER 449, [2002] 1 FLR 1090.
F (mental capacity: interim jurisdiction), Re [2009] EWHC B30 (Fam), [2010] 2 FLR 28, (2009) 12 CCL Rep 530, [2009] MHLR 196, [2009] WTLR 1309.
F (mental patient: sterilisation), Re [1990] 2 AC 1, CA.
FM and ANR, Re[2016] EWCA Civ 645 (unreported).
G (an adult) (mental capacity: court’s jurisdiction), Re[2004] EWHC 2222 (Fam), [2004] All ER (D) 33 (Oct).
J (children), Re[2017] EWCA Civ 398, [2017] 2 FCR 647, [2017] 4 WLR 109.
L (vulnerable adults: court’s jurisdiction) (no 2), Re[2012] EWCA Civ 253, (2012) 127 BMLR 24, [2012] 3 All ER 1064, [2013] Fam 1, [2012] 3 WLR 1439.
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