M v AB (by her Litigation Friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Hilder |
| Judgment Date | 25 September 2020 |
| Neutral Citation | [2020] EWCOP 47 |
| Docket Number | Case No: 13605371 |
| Date | 25 September 2020 |
| Court | Court of Protection |
[2020] EWCOP 47
COURT OF PROTECTION
First Avenue House
42–49 High Holborn,
London, WC1V 6NP
Her Honour Judge Hilder
Case No: 13605371
In the Matter of
M appeared in person
S appeared in person, by CVP
Mr. John McKendrick QC (instructed by Mackintosh Law) appeared for the First Respondent
Ms. Sian Davies (instructed by Southwark Council) appeared for the Second Respondent
Hearing: 10 th and 11 th September 2020
The hearing was conducted in public subject to a transparency order made on 9 th September 2020. The judgment was handed down to the parties by e-mail on 25 th September 2020. It consists of 34 pages, and has been signed and dated by the judge.
The numbers in square brackets and bold typeface refer to pages of the hearing bundle.
A. The Issues
AB is presently living and being cared for at B Care Home in London, pursuant to arrangements made and authorised by the Second Respondent Local Authority but contrary to the wishes of the Applicants.
In these proceedings the Court is asked:-
a. to recognise Letters of Guardianship granted by Erie County Surrogate Court, State of New York, USA, which confer authority on M to make decisions in respect of AB's person; and
b. to determine a challenge to the Standard Authorisation in respect of deprivation of liberty in AB's current living arrangements by returning AB to the care of her mother, M.
Capacity is not in issue.
These proceedings have been conducted in the midst of the covid-19 pandemic, which has had an impact on the arrangements possible for contact between AB and M whilst the applications are under consideration, and also on the way the proceedings have been conducted. The initial directions hearing was held remotely, by telephone; and this hearing has been a ‘hybrid’ of attendance mostly in person but the Second Applicant, the expert witness and a social work manager by Cloud Video Platform.
B. Matters considered
I have considered all the documents in the hearing bundle, which is made up of 2 lever arch files, including:
a. Filed by the Applicants
Statements by M dated 29th May 2020 [ D1], 16th June 2020 [ D90], 20th August 2020 [ D154] and 7 th September 2020
Statement by S dated 29 th May 2020 [ D5]
b. Filed on behalf of the First Respondent
Statements by Zena Bolwig dated 1 st September 2020 [ D289] and 3 rd September 2020
c. Filed by the Second Respondent
Statements by Helena Keech (social worker) dated 29 th July 2020 [ D107] and 11 th September 2020
Statement by Helena Crossley dated 26 th August 2020 [ D284]
d. Expert report
Marc Bekerman dated 27 th August 2020 [ F1]
e. Capacity assessments
DOLS form 3 by Adedayo Akintola, social worker, dated 6 th January 2020 [ B173]
DOLS form 4 by Dr. Kassim dated 1 st January 2020 [ C1]
DOLS form 3 by Eleanor Greenwood, social worker, dated 8 th April 2020 [ C15]
I heard oral evidence from Helena Keech, M and – remotely, via CVP — Marc Bekerman.
I heard submissions from M, S (remotely, via CVP), Mr. McKendrick QC and Ms. Davies.
I engaged directly with AB via Microsoft Teams remote link on the second morning of the hearing. She was accompanied by a nurse and the manager of the placement where she presently lives. Her solicitor was also part of the Teams call, from the courtroom.
C. Factual Background
AB was born in the USA on 15 th September 1998, and so is now 22 years old. Her mother, M, is a British citizen who was taken to live in the USA by her own mother sometime in the 1970s [ A2]. S is AB's sister.
AB suffered brain injuries at birth. She has cerebral palsy, microcephaly, bilateral dislocated hips and scoliosis, and is wheelchair bound. She has significant visual impairment and a history of seizures (although these appear now to have resolved.) She receives nutrition through a PEG feed. She is non-verbal.
At present little is known of AB's life in the USA except that she was in the care of her mother. In written documents [ A2] M describes herself as “a New York trained nurse assistant with three years college” and says she “operated a licensed NY State home for veterans, the elderly, and adults with learning disabilities…. managed a care home for wayward teen mothers…is a bilingual Spanish/English tutor, aerobics instructor, and West Coast Swing wheelchair dancer with her daughter.” In oral evidence M made no mention of these occupations and described only dependence on state benefits for housing and income.
S continues to live in the USA. She is described by her mother [ A2] as “a SUNY college graduate and HR professional. She is a young adult who manages her own life in the States. She typically provides extended respite for her sister when needed.”
AB's father, T, has played no part in these proceedings. His whereabouts are unknown to the Respondents [ D107]. M has told a social worker that he was abusive.
On 29 th November 2019 M and AB flew to the UK, on one-way tickets [ D46]. Although they arrived via Gatwick airport, it would appear that they went initially to Aberdeen, where the City Council paid for their temporary accommodation in a hotel and a rail ticket back to London. Thereafter, they stayed for a short time with M's sister, then her niece. Latterly they stayed with M's aunt, in her third floor flat with no lift.
On 14 th December 2019 AB was taken to King's College Hospital in an ambulance. M was concerned that AB had been “making unusual crying sounds during a feed” [ A3]. The hospital subsequently raised safeguarding concerns about M's feeding practices. AB was considered medically fit for discharge by 18 th December but she remained an inpatient for almost three months because there was no accessible home to which she could be discharged.
On 9 th March 2020 AB was discharged to B Care Home. Initially M stayed with her there, apparently because she had no other accommodation and expected to be allowed to stay with her daughter. The covid-19 emergency lead B Care Home to enforce restrictions on visitors. Police were involved in removing M.
A Standard Authorisation in respect of deprivation of liberty in AB's living arrangements at B Care Home was granted on 9 th April 2020, with effect for 12 months [ C29]. It is a condition of the Standard Authorisation that “[t]he Managing Authority … facilitate regular telephone contact between [AB] and her mother whilst [M] is unable to visit her in person, at a minimum level of one telephone call per week.” M is appointed as AB's Relevant Person's Representative.
M is presently living in accommodation which was provided to her following an application for assistance as a homeless person under Part 7 of the Housing Act 1996. The Second Respondent has informed the court that M has been assessed as “not in priority need;” and that she had a statutory right to seek a review of that decision but has not done so. The duty to accommodate has now come to an end. Eviction proceedings have not been commenced only because of the general moratorium of such proceedings in circumstances of pandemic, which moratorium is expected to expire imminently. M considers that she has done what is required to challenge any decision that she cannot continue to live in her current accommodation but she also contends that she should be assessed for and provided with accommodation suitable for AB to live with her.
D. These proceedings
Proceedings in the UK were begun when M and S made a COP1 application [ B17] dated 29 th May 2020 seeking:
“An Order to uphold United States Deputies:
—- Section 15(1)(c) of The Act, which states, I am acting lawfully in England and Wales when exercising authority under my Deputyship.
—- Schedule 3, Part 4 of the Act, the Proposed Protective Measure, wherein the Deputy for the person without capacity does not require approval of a foreign court to be regarded as the protective authority for the person without capacity.”
In Annex B to the application M informed the Court [ B3] that:
“A legal Advance Directive was put in place in October 2014. The New York State Department of Health MOLST Form has been kept currently yearly at [AB]'s annual GP appointments; the last update being the 5 th of November 2019. As Deputy I have been authorised and empowered by court order to make all decisions of Health and Welfare for [AB], who lacks all mental, intellectual and developmental capacity.”
There was filed with the application numerous documents, including
a. a photocopy of a Standard Authorisation in respect of AB's present living arrangements;
b. a photocopy of a document dated 25 th September 2018 and headed “Surrogate Court of the State of New York Erie County Certificate of Appointment of Guardian”
c. a photocopy of a document dated 1 st February 2017 with the words in the top right saying “AMENDED DECREE APPOINTING GUARDIAN PERSON ONLY Person With Intellectual and Developmental Disabilities File No. 2016–2399”
d. a photocopy of a document dated 27 th October 2016 with the words in the top right saying “DECISION AFTER FAIR HEARING”.
By order made on 10 th June 2020 [ B33] the application was stayed pending the filing of further documents specified in a schedule.
Meanwhile, the London Borough of Southwark had been notified of the application and filed a COP5 Acknowledgment [ B29] informing the Court that it “is currently providing care to [AB] and so has an interest in the...
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