Manchester City Council v (1) G (2) E (by The Official Solicitor) (3) F

JurisdictionEngland & Wales
CourtFamily Division
Judgment Date26 Mar 2010
Neutral Citation[2010] EWHC 3385 (Fam),[2010] EWHC 621 (Fam)
Docket NumberCase No: 11774770

[2010] EWHC 621 (Fam)

IN THE COURT OF PROTECTION

Before: The Honourable Mr Justice Baker

Case No: 11774770

Between
G
Applicant
and
E (by His Litigation Friend the Official Solicitor)
First Respondent
and
A Local Authority
Second Respondent
and
F
Third Respondent

Miss Kerry Bretherton (instructed by Linder Myers) for the Applicant

Miss Amy Street (instructed by Irwin Mitchell) for the First Respondent

Miss Gillian Irving QC and Mr David Mackley (instructed by the Local Authority's Solicitor's Department) for the Second Respondent

Mr Neil Allen (instructed by Linder Myers) for the Third Respondent

Hearing dates: 14, 19, 20, 25, 26, 27 January, 10 February and 8 March 2010

R. JUSTICE BAKER:

INTRODUCTION

1

This is an application in the Court of Protection in respect of E (born 1990, therefore now aged 19) who suffers from a rare and very complex genetic condition known as tuberous sclerosis and as a result has a severe learning disability. The application is brought by E's sister, G. The respondents to the application are E himself by his litigation friend, the Official Solicitor; the local authority in whose area E resides; and F, a woman with whom E resided for over ten years, initially as a foster carer under section 20 of the Children Act 1989 and subsequently under an adult placement until he was removed by the local authority in April 2009.

2

By this application, G asks the court to decide the following matters:

i) whether E has capacity to make decisions;

ii) whether it is in his best interests to return to live with F or whether he should be cared for in a residential care home and if so which care home;

iii) what contact provision should be made for G and/or F if E does not return home;

iv) whether the local authority has unlawfully detained E in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the Deprivation of Liberty Safeguards under the Mental Capacity Act 2005 and/or Article 6 of the convention;

v) whether the local authority has interfered with E's right to a home and/or to family life under Article 8 of the convention;

vi) whether E should receive damages from the local authority and the amount of such damages for breach of Articles 5, 6 and or 8;

vii) whether the local authority should bear the costs of this claim.

3

The matter came before me sitting on circuit for an interim hearing to consider two matters: (1) whether E is currently deprived of his liberty and (2) what is in E's best interest with regard to residence and contact pending the final hearing, now listed for July 2010. The interim hearing had been listed for two days in a busy Family Division list containing other equally urgent cases. In the event it became apparent that the issues to be determined at the interim hearing were extremely complex and that the two-day time estimate was wholly inadequate. A total of nine bundles of written material were filed (subsequently reduced to four “core” bundles). Specifically, I formed the view that it would not have been possible to do justice to the parties and the issues, even at this interim stage, without hearing extensive oral evidence and making final decisions on a number of the other issues raised in G's application in addition to those listed before me. Fortunately I was able to clear some time in the following week on circuit but in order to complete hearing the evidence it was necessary for me to return (for the convenience of the witnesses) on two separate days in the following weeks. In view of the extensive issues, and the wide ranging legal arguments deployed by the parties, I requested written submissions (which were duly delivered together with over seventy legal authorities). I then set aside a further day on 8 th March (listed for counsel's convenience) in the middle of a lengthy case in London to consider supplementary oral submissions.

4

This illustrates a major difficulty which Judges of the Family Division are currently experiencing with cases in this field. The changes brought about by the Mental Capacity Act 2005 have increased the role and work of the Court of Protection. The issues arising in such cases are often extremely complex and require lengthy consideration, but they are also urgent and require speedy determination. The more complex cases are referred to the judges of the Family Division, all of whom are appointed to sit in the Court of Protection. I understand that about ten per cent of the Division judicial time is at the moment being taken by Court of Protection work, although there has been no corresponding increase in resources. In this case, the court has had to accommodate this overrunning hearing in the middle of other pressing business.

5

Urgent attention needs to be given to increasing the resources of the Family Division to deal with these difficult and urgent cases.

BACKGROUND

6

E was born on 19 September 1990 and is therefore now aged 19 years. His paediatrician has described his tuberous sclerosis as “a very complex genetic condition”. His physical problems include associated kidney abnormalities and a severe scoliosis of the spine. His learning difficulties cause significant social and communication difficulties. His expressive and receptive language skills have been assessed by a speech and language therapist as developmentally equivalent to an 18–24 month old child. In oral evidence, E's paediatrician described how the difficulties suffered by those afflicted with this condition become more difficult as they get older. There are non-cancerous tumours in certain organs of the body in particular the brain, kidneys and heart. The tumours in the brain lead to learning difficulties. The illness is often progressive and there is an increased risk of malignancy in later life in the brain and the kidneys. There is a spectrum – at one end people can lead a relatively normal life, but at the other end, the condition can cause great difficulties – epilepsy, renal failure and malignancy. E's paediatrician described E as having a severe form of the condition.

7

E comes from a troubled family. His father had a moderate learning difficulty, alcohol problems and a history of physical and sexual violence towards women and was a Schedule 1 offender with a range of convictions for various criminal offences. There was much concern in E's early years that his mother was unable to protect E from his father. E has an older sister, G, the applicant in these proceedings. She is now aged 26 and lives with her partner and two young children, one of whom also suffers from tuberous sclerosis.

8

F has for many years been a foster carer with the local authority. E was first placed with her for respite care in 1995 and finally accommodated with her on a full-time basis by the local authority under section 20 of the 1989 Act in 1999. Thereafter, throughout E's childhood, he was looked after by F. He had some contact with his birth family including occasional visits from his sister G. In 2001, E started to attend a school for children with special needs. He has continued to attend that school up to the present day. There has been a long history of disagreements between the school and F. At various points during the last few years the school has expressed some concerns about F's care. But overall, it is important to note that the view of the professionals involved with E has been that he has been well cared for by F. For example, in 2002, one social worker observed: “F is very skilled in the care of E and has considerable insight into his complex needs”. F has a son of her own, H, who is also aged 20 and thus much the same age as E. The boys grew up together. She also has an older son, I who unfortunately has been in prison for a number of offences. It is beyond argument that E has been treated and has regarded himself as a member of F's family – in the words of her counsel, he is “an integral part of family life”.

9

In December 2004, E started attending the J Residential Home for respite care and continued to visit that establishment from time to time until he was removed from F's care in April 2009. In contrast to her relationship with the school, F has always had a good relationship with the staff at the J Residential Home.

10

A major cause of the disagreement between F and the staff at school has been the apparent difference in E's behaviour at school and at home. At school, there were regular reports of E displaying challenging behaviour. F has consistently maintained that she did not experience similar behaviour from E at home. The behaviour complained of at school included shouting, hitting other people, and spitting. There was particular difficulty over the travel arrangements between school and home. E would frequently display challenging behaviour on the school bus and on arrival at school. For example, on 20 June 2007, there was a report that E attacked the transport escort twice during a week. That same week, the J Residential Home also reported that E was displaying challenging behaviour, including attacking other children and smearing. The manager at the J Residential Home felt that E's behaviour was becoming more difficult and thought that he “may become a 2:1”, i.e. required two carers to look after him during his stay at the J Residential Home.

11

Shortly after that week there occurred an incident which has given rise to concerns about F's treatment of E. According to a note taken by a member of staff at school, on 6 July 2007, when F arrived to collect E from school, she noticed that he had had an accident. The note continues: “F moved towards E and stood nose to nose wagging her finger in his face telling him in an aggressive manger that he doesn't do this at home so why does he do it at school. At this point E's entire posture changed and his head and...

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