Manchester City Council v (1) G (2) E (by The Official Solicitor) (3) F
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,Mr Justice McFarlane,Lord Justice Mummery |
| Judgment Date | 02 August 2011 |
| Neutral Citation | [2011] EWCA Civ 939,[2010] EWCA Civ 822 |
| Docket Number | Case No: B4/2011/0132,Case No: C3/2010/0814 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 August 2011 |
[2010] EWCA Civ 822
The Hon. Mr Justice Baker
Before: Sir Nicholas Wall, the President of the Family Division
Lord Justice Thorpe
and
Mr Justice Hedley
Case No: C3/2010/0814
COP11774770
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Court of Protection
Martin Westgate QC and Kerry Bretherton (instructed by Linder Myers) for the Appellant
Richard Gordon QC and Amy Street (instructed by Irwin Mitchell LLP) for the 1st Respondent
Gillian Irving QC and David Mackley (instructed by Local Authority Legal Department) for the 2 nd Respondent
Neil Allen (instructed by Linder Myers) for the 3 rd Respondent
Hearing dates: 16th June 2010
Approved Judgment
Sir Nicholas Wall P:
Anonymity
This is the judgment of the court, to which each of its members has contributed. Although we heard the appeal in open court on 16 June 2010, we hereby impose reporting restrictions, and this judgment is written anonymously. In particular, nothing must be published which in any way identifies any of the parties to the proceedings, whom we propose to identify only by initials or function. Any application to lift the restrictions imposed by this judgment should be made on notice to the full court: otherwise it will be a matter for the judge to decide at the July hearing whether or not, and if so to what extent, the anonymity hitherto imposed should be relaxed
.The appeal and an outline of the factual matrix from which it arises
This appeal arises from proceedings heard in the Court of Protection, and in particular from interim orders made by Jonathan Baker J in a reserved judgment ([2010] EWHC 621) handed down on 26 March 2010. The critical issue raised by the appeal is neatly encapsulated by Mr Richard Gordon QC and Miss Amy Street, who appeared before us on the instructions of the Official Solicitor, in the following question: —
“was the judge right or wrong to reject the appellant's submission that Article 5 of the European Convention on Human Rights (ECHR) places distinct threshold conditions which have to be satisfied before a person accepted to be lacking capacity can be detained in his or her best interests under the statutory regime established by the Mental Capacity Act 2005 (MCA 2005)?”
This is plainly an issue of some considerable legal and practical importance, both for local authorities and for professionals dealing with the affairs of those who are said to lack capacity under MCA 2005. We have, accordingly, taken time to reach our conclusion. That said, we are unanimous in our view that the answer given by the judge was correct and that the appeal should be dismissed. This judgment will explain our reasons for reaching that conclusion.
At this point we propose simply to summarise the facts, into which it is fair to say that the judge went with scrupulous care and in great detail. Suffice it, therefore, for present purposes to record that E is a young man of 19 who, as is common ground, lacks the capacity to make decisions about his own life – such as where he should live.
E was the subject of an application to the Court of Protection by his sister G, issued by the court on 13 November 2009. She, inter alia, sought declarations; (1) that the local authority had unlawfully detained E in breach of ECHR Article 5 and / or the Deprivation of Liberty Safeguards (DOLS) under MCA 2005 and / or ECHR Article 8; and (2) that it was in E's best interests to return to live with F, his adult carer. In those proceedings, as before us, E was represented by the Official Solicitor.
For about 10 years, that is until April 2009 when he was removed by the relevant local authority (which, after E, was the principal respondent to the proceedings), E resided with F, who is now a middle aged woman who was initially E's foster carer under section 20 of the Children Act 1989. However, after he attained his 18 th birthday, E lived with F under an adult placement.
Prior to the local authority removing E from F's care, it neither sought the consent of F or G, nor did it take proceedings in the Court of Protection or otherwise to justify the removal. The judge accordingly decided that in removing E to what he described as the V unit, and then to Z Road after April 2009, contrary to the wishes of F and G, the local authority had deprived E of his liberty under ECHR Article 5 and MCA 2005. He also decided that the removal from F's care, amongst other factors, constituted a breach of E's ECHR Article 8 rights. Neither finding – in so far as each relates to the period prior to any order of the Court of Protection sanctioning E's detention—is controversial in this appeal.
What give rise to the appeal are the following further findings which the judge went on to make, namely: —
(1) that an interim “best interests” declaration made by Ryder J on 8 December 2009 rendered E's detention at his then current address lawful;
(2) that ECHR Article 5 did not create a “threshold condition” which had to be satisfied in deprivation of liberty cases before the court could go on to consider what was in the best interests of E;
(3) that in making an order in E's best interests the court could authorise a deprivation of liberty under sections 16 and 48 of MCA 2005; and
(4) that on the facts, albeit on a fine balance, it was in E's best interests to remain where he was, and not, in the interim, to return to F's care.
As already indicated the critical issue is that identified in paragraph (2).
In accordance with his finding under (4) of the preceding paragraph, the judge went on to make an order under section 48 of MCA 2005 that E should live at Z Road until the final hearing in July 2010 or prior further order. In the event, however, at a subsequent hearing on 6 May 2010, and having received further evidence, the judge took the view that the balance had shifted, and that, pending the final hearing in July 2010, E should return to live with F not later than 21 May.
Permission by G to appeal against the judgment handed down on 26 March 2010 was refused both by the judge and then on the papers by Arden LJ, but subsequently granted on an oral renewal on 4 May 2010 by the Master of the Rolls and Munby LJ. On 18 May 2010, on which date the judge handed down a judgment giving his reasons for his decision on 6 May 2010, the judge did give permission to appeal against his second judgment, since by then this court had given permission to appeal against his first order. However, no fresh point arises. It must follow that if the judge was right in the approach which he adopted on 26 March 2010, then he was right on 6 May, when he adopted the same approach. Accordingly, we have not, in this appeal, been concerned with the latter ruling. For completeness, we add that the July 2010 hearing remains fixed (albeit reduced in length) and that the sub-text of the appeal plainly remains the claim for damages which E is making against the local authority for its breaches of his rights under ECHR, with which, of course, we are not directly concerned.
We have referred to “the appeal” by G. In fact, she is supported by F, who has filed a respondent's notice, and who advances identical arguments in support of G's appeal. There is also a respondent's notice from E, which states that the Official Solicitor does not wish to appeal the judge's order, but in which the Official Solicitor submits that there was no breach of E's ECHR Article 8 rights in the judge's order either (1) because the order furthered and protected those rights; alternatively (2) because any breach was justified under ECHR Article 8(2) for the protection of E's health.
The local authority did not appear by counsel before us, but put in a detailed skeleton argument, which we have read and which we summarise briefly below. The Z home, in which E was living, also stated at one point that it wished to intervene. We made it clear, however, that the status of the home (which had been put in issue before the judge but which he did not decide) was immaterial to the issues raised in the appeal, and that we would make no findings about it. In these circumstances, the Z home took no part in the proceeding before us, and the appeal(s) proceeded on the basis of oral submissions made by Mr. Martin Westgate QC and Miss Kerry Bretherton for G and by Mr. Gordon QC for E. In addition to the local authority's skeleton argument, there was one from Mr. Neil Allen for F, which we have also read and taken into account.
The facts in greater detail
E suffers from a rare and very complex genetic condition known as tuberous sclerosis. This has left him with severe learning difficulties. He is not, however, mentally ill, and the provisions of the Mental Health Act 1983 do not apply. The judge described his condition and the relevant background in paragraphs 6 to 9 of the judgment, which we are content to adopt: —
6. 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...
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