A London Borough v S and S (an adult by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Wall,Mr Justice Wall |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] EWHC 1909 (Fam) |
| Docket Number | Case No: FD0Q2P02034 |
| Court | Family Division |
| Date | 31 July 2003 |
[2003] EWHC 1909 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
THE HONOURABLE MR JUSTICE WALL
Case No: FD0Q2P02034
Ms Sally Bradley(instructed by Legal Services Dept) for the London Borough of Newham
Ms Sarah Forster (instructed by Hereward & Foster Solicitors) for the first respondent
Ms Fenella Morris (instructed by the Official Solicitor) for the second respondent
Hearing dates 21 —24 July 2003
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.
Approved Judgment
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.
Introduction
This case concerns a young woman (S), who is now 33. S has a moderate/severe learning disability, and also suffers from atypical autism and epilepsy. "Atypical" in this context means, as I understand it, that she displays some but not all the symptoms of autism. Her epilepsy is controlled by medication. The aetiology of her condition is unclear, but may result from a febrile illness at the age of 19 months. It is, however, common ground that, in the words of Dr C, the consultant psychiatrist instructed by the Official Solicitor to comment on S's capacity, her mental impairment
……..is characterised by significantly sub-average intellectual functioning and poor socio-economic skills. She has a poor attention span and her level of comprehension and cognitive function is extremely limited. Her understanding of events is dependent on contextual and situational cues. S also has no concept of time nor has the ability of recall of events that may have occurred in the past…..
S is not in a position to express her views as a consequence of limitation in her communication skills and learning disability, which is a permanent condition.
As such, she is unable to comprehend and retain any information material to decisions about her future. Neither is she capable of evaluating the positive and negative aspects that should underpin such a choice.
In short, S does not have the capacity to decide where she should live and who should provide care for her.
S's mother died in April 1995, and since that date her father (Mr S, who is now rising 66) has been her sole carer, assisted by a number of support workers mostly arranged privately. However, on 9 November 2002 there was an incident (in which it is alleged Mr S struck S, and to which I shall return) which led to the local authority first instituting adult protection measures and then, after it had taken legal advice, to a without notice application to the court on 20 December 2002. On that day, Johnson J, exercising the court's inherent jurisdiction, made a number of interim declarations rendering it lawful for the local authority (inter alia) (1) to place S in a residential placement for adults with learning disabilities; (2) to prohibit Mr S from removing her from that placement; and (3) to limit contact between S and Mr S to supervised contact. The Official Solicitor was invited to act for S and Mr S was given liberty to apply to vary or discharge the order.
As a consequence of the order S was removed from Mr S's address, and placed in a specialist refuge for women with learning disabilities. This was a temporary placement, albeit one able to accommodate S for the duration of these proceedings. The evidence suggests that S has settled well in this placement.
On 15 January 2003, at a hearing at which Mr S was represented, Hughes J continued the interim declarations made by Johnson J, provided for Mr S's contact with S and gave a number of directions, including the appointment of the Official Solicitor as litigation friend; the joint instruction of a consultant psychiatrist to advise on S's capacity to make decisions as to where she should live and as to contact with Mr S; and the joint instruction of an independent social worker to advise as to her best interests in relation to residence and contact with Mr S. He also laid down a timetable, as a result of which the hearing of the local authority's claim began before me on 21 July2003.
The relief sought by the local authority is set out in a detailed draft order prepared by the Official Solicitor, a copy of which is annexed to this judgment. In essence it seeks a declaration that S lacks the capacity to decide where she should live and who should provide her with care. It seeks consequential declarations that it is lawful, as being in her best interests, for her to reside at accommodation arranged for her by the local authority. It also seeks a declaration that S lacks the capacity to decide whether to have contact with her father, and upon the nature and extent of that contact, together with a consequential direction that it is in her best interests for contact with her father to be agreed with the local authority in accordance with the detailed schedule attached to the order.
The local authority's final plan for S's accommodation only crystallised shortly before the start of the hearing on 21 July. It is, however, that she should live in a recently renovated house in the borough, which is designed to accommodate up to 8 mentally impaired individuals of both sexes and from multi-cultural backgrounds (S's background is Afro-Caribbean). The property is due to open on 5 August 2003. It is relatively close to Mr S's home and the day centre, which S attends on a daily basis, is easily accessible. I was told that interviews are currently being undertaken for staff; but the company which is to run the home is well known to the local authority and successfully operates several other homes in the area. There will be a mixed gender staff group recruited from different ethnic community groups. Three members of staff will be on duty from 7.00am to l0.00pm, and a waking member of staff will be on duty all night. Staffing numbers can be increased if individual residents require higher levels of support. There will be a varied leisure programme, and residents will be encouraged to access activities in the community. Contacts with family and friends will be facilitated as agreed.
The independent social worker instructed by the parties (Mr O'M) visited the home on 21 July 2003. He subsequently both wrote a short report and gave evidence to me about it. He was entirely satisfied that it would be suitable for S and would meet her needs. That view was endorsed by Dr C. The local authority's plan to place S in this setting thus has the support of all the relevant professional witnesses in the case and is endorsed by the Official Solicitor on S's behalf.
Mr S opposes the relief sought by the local authority. His case is that S should return to live with him. He is her father and responsible for her. He has cared for her since her mother died. He has been able to make appropriate arrangements for her care. There is, accordingly, in his view, no need for the state, in the form of the local authority, to intervene, and it should not be permitted to do so. His primary position, accordingly, is that the interim declarations should be discharged, and the proceedings dismissed.
The law
Before dealing with the merits it is, I think, necessary to examine the applicable law. The case is an example of a local authority inviting the High Court to exercise its inherent jurisdiction to determine the best interests of mentally impaired adults. This follows in particular the identification of a lacuna in the mental health legislation by the Court of Appeal in Re F (Adult: Court's Jurisdiction) [2000] 2 FLR 512 (hereinafter identified as Re F (No.2).
Thus although Dr C in her report described S as suffering from a severe mental impairment within the context of the Mental Health Act 1983, this is not strictly accurate. The reason why a person such as S does not come within the statutory definition of "mental impairment" contained within section 1(2) of the Mental Health Act 1983 (the Act), and thus qualify for guardianship, is because mental impairment is defined in the Act as:
…. A state of arrested or incomplete development of mind (not amounting to a mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned (emphasis supplied).
S does not fall into this definition, Whilst she sometimes displays an element of aggression, the only example of "seriously irresponsible conduct" on S's part identified by Miss Forster on behalf of Mr S was her total lack of road sense and a tendency to rush into the road without looking. It is plain from Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192(Re F No 1)) and the citations within it from Hansard, from the Law Commission Report Mental Incapacity (1995 Law Comm No 231) and from Hale J in the 4th edition of Mental Health Law (1996) that such conduct does not come within the definition. It should be noted that Re F (No 1) was the local authority's attempt, in the same case, to use guardianship as opposed to the exercise of the inherent...
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