MN (Adult)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Eleanor King J's,Lord Justice Treacy,Lady Justice Gloster |
| Judgment Date | 07 May 2015 |
| Neutral Citation | [2015] EWCA Civ 411 |
| Docket Number | Case No: B6/2013/3729 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2015 |
[2015] EWCA Civ 411
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mrs Justice Eleanor King
[2013] EWHC 3859 (COP)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE COURT OF PROTECTION
Lord Justice Treacy
and
Lady Justice Gloster
Case No: B6/2013/3729
B6/2013/3747
Ms Kerry Bretherton (instructed by Dollman & Pritchard) for the first appellant Mr N
Ms Aswini Weereratne (instructed by Scott-Moncrieff & Associates) for the second appellant Mrs N
Mr Hugh Southey QC and Ms Fiona Paterson (instructed by Weightmans LLP) for the first respondent ACCG
Mr Alex Ruck Keene (instructed by Steel & Shamash) for the third respondent MN (by the Official Solicitor)
The second respondent ACC was neither present nor represented
Hearing dates: 16, 18 December 2014
Sir James Munby, President of the Court of Protection:
This is an appeal from a decision of Eleanor King J, as she then was, sitting in the Court of Protection on 20 November 2013. The judge refused permission to appeal. Permission was also refused by Macur LJ on the papers on 21 February 2014 but was granted, on renewal, by Floyd LJ at an oral hearing on 25 June 2014: ACCG and anor v MN [2014] EWCA Civ 1176.
The background
The facts are fully set out in Eleanor King J's judgment: ACCG and another v MN and others [2013] EWHC 3859 (COP), [2014] COPLR 11. Her judgment also appears on the BAILII website, where it is publicly available, free, to all. For present purposes a very brief summary suffices.
MN, born in 1993, is a young man who suffers from profound disabilities and lacks capacity to make relevant decisions for himself. When MN was 8 years old he was made the subject of a care order on the application of the local authority, ACC. Shortly before his 18 th birthday the court approved MN's move from his residential children's placement to an adult residential placement, RCH, where he continues to live. The clinical commissioning group, ACCG, took over responsibility from ACC for the funding of MN's placement at RCH when he turned 18. The present proceedings were brought by ACC and commenced on 25 August 2011. MN's parents, Mr N and Mrs N, accept, reluctantly, that MN should live at RCH, where they have regular contact with him, but their aspiration remains that he should return to live with them at home.
By the time the matter came on for hearing before Eleanor King J, the issues had narrowed to disputes (i) as to whether Mrs N should be permitted to assist in MN's intimate care when visiting him at RCH and (ii) as to whether contact should also take place at Mr and Mrs N's home. As to (i), RCH was not willing for this to be done. As to (ii), ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN was to have home contact.
Mr and Mrs N contended that the judge should embark on a contested 'best interests' trial in relation to both issues. The judge summarised ACCG's position as follows (paras 20–21):
"[20] The ACCG's case is that in a welfare case such as the present, the court is limited to choosing between the available options. It does not, they submit, have the power to order the applicant to produce other options, although it may make inquiries of the first applicant of other potential options. There is, say ACCG, only one residential package which it is prepared to fund. It is clear, they submit that the most recent offer of contact (unrestricted at RCH plus once a month in the community), affords the parents ample opportunity to see MN. The provision offered they submit, discharges their statutory duties towards MN. The ACCG fund one visit each week and the visit into the community.
[21] It follows that the ACCG's case is that they will not fund contact at the parents' home and contact there is not therefore an available option in this case."
The judge was alert to what she described (para 34) as the:
"danger of a blurring of the distinction as between the Court of Protection's statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide."
After hearing full legal argument, the judge concluded (para 87) as follows:
"In all the circumstances, I accept the submission of ACCG that contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s 4 MCA 2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests."
Both Mr and Mrs N — separately — appeal. I will come to consider their grounds of appeal in more detail in due course, but essentially they challenge the correctness in law of the judge's approach.
The appeal raises fundamental questions as to the nature of the Court of Protection's jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient's family.
I turn therefore to the law.
The law
The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said (page 795):
"Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code."
He continued (page 797):
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority."
Lord Scarman was not of course disputing the High Court's power of judicial review under RSC Ord 53 (now CPR Pt 54) when exercised by what is now the Administrative Court: he was disputing the High Court's powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said (page 795):
"The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case."
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.
It follows from this that a child, even if a ward of court, has no special privileges, nor has the family court any power to obtain for a child access to resources which would not otherwise be available. As Millett LJ, as he then was, put it in In re R (Wardship: Restrictions on Publication) [1994] Fam 254, 271, "the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court." The same point was made by the House of Lords in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, a housing case. As Lord Hoffmann said (para 8):
"A child may have needs which a parent cannot meet. It may be in the interests of a child to reside for substantial periods with his father if the father has suitable accommodation. If he has not, the court has no power under the 1989 Act, whether in exercise of its public or private jurisdiction, to conjure such accommodation into existence."
Exactly the same principle applies in relation to an incapacitated adult. As Baroness Hale of Richmond said in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67, [2014] AC 591, para 18:
"This Act [the Mental Capacity Act 2005] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full...
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