Re A (Capacity: Social Media and Internet Use: Best Interests)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWCOP 2 |
| Docket Number | Case No: 13120139 |
| Court | Court of Protection |
| Date | 21 February 2019 |
[2019] EWCOP 2
IN THE COURT OF PROTECTION
The Combined Courts
Quayside
Newcastle Upon Tyne
THE HONOURABLE Mr Justice Cobb
Case No: 13120139
Victoria Butler-Cole and Ben McCormack (instructed by Legal Services) for the Local Authority
Parishil Patel QC and Joe O'Brien (instructed by Simpson Millar for the Official Solicitor) for A
Neil Allen (instructed by Kirklees Citizens' Advice and Law Centre acting pro bono) for A's parents
Hearing dates: 21 January 2019
Approved Judgment
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.
THE HONOURABLE Mr Justice Cobb
This judgment is covered by the terms of an order made pursuant to Practice Direction 4C-Transparency. It may be published on condition that the anonymity of the incapacitated person and members of her family must be strictly preserved. Failure to comply with that condition may warrant punishment as a contempt of court.
Introduction
The rise and development of the internet and social media networks over recent years has fundamentally reshaped the way we engage with each other, and as a society. Incalculable numbers of digital electronic devices – mobile phones, tablets, and computers – are engaged every second of every day, from all reaches of the globe, for communication, entertainment, education, relaxation, and/or for gathering information. There is an ever-growing number of social media ‘apps’ available for instant messaging and networking; among those most prominently referred to in these proceedings are Facebook, WhatsApp, Snapchat, Facetime, Skype, Instagram, and Twitter, all of which are relatively easy and cheap (even free) to use.
The internet and associated social media networks are particularly important for people who have disabilities, and/or social communication problems. They enable ready access to information and recreation, and create communities for those who are otherwise restricted in leaving their homes. The internet and social media networks have generally served over the years to promote social inclusion, rather than exclusion; they offer disabled users opportunities and enhanced autonomy, they provide a means to express social identity, and they enable the learning of new skills, and the development of careers. The importance of creating and maintaining ready access for the disabled to electronic and digital technology is well-recognised, and needs no amplification in this judgment; it is indeed identified as a right within the United Nations Convention on the Rights of Persons with Disability (‘UNCRPD’).
Article 9 of the UNCRPD requires states to take appropriate measures to enable those with disabilities to “live independently and participate fully in all aspects of life….[including] access, on an equal basis with others, … to information and communications, including information and communications technologies and systems”. There is a requirement on states to eliminate barriers to accessibility for the disabled to “information, communications and other services, including electronic services and emergency services”; Article 21 (ibid.) provides a complementary provision, for persons with disabilities, to “exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice” by “encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities”. Article 22 (ibid.) enshrines the right to privacy for the disabled. While the UNCRPD remains currently an undomesticated international instrument, and therefore of no direct effect (see Lord Bingham in A v Secretary of State for the Home Department [2005] UKHL 71; [2006] 2 AC 221 at [27]), it nonetheless provides a useful framework to address the rights of persons with disabilities. By ratifying the UNCRPD (as the UK has done) this jurisdiction has undertaken that, wherever possible, its laws will conform to the norms and values which the UNCRPD enshrines: AH v West London MHT [2011] UKUT 74 (AAC); [16] (See R(Davey) v Oxfordshire CC & others [2017] EWCA Civ 1308 at [62], and Mathieson v SS for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 at [32]). I am satisfied that I should interpret and apply the domestic mental capacity legislation in a way which is consistent with the obligations undertaken by the UK under the UNCRPD.
Advances in cyber and digital technology continue to outrun society's ability to monitor or control it, and, to an extent, the law's ability to keep pace with its development. The internet is, or can be, a dangerous place; it has a dark side, where dehumanising and illegal material (including images, pseudo-images, videos, live-streaming and text) is all too readily accessible. Internet abuse is common-place and is known to take many forms: bullying, harassment, child sexual abuse, sexual grooming, trafficking, trolling and the theft of personal identity among them. These activities thrive when they are left unchecked. Ironically, dating ‘apps’ and social media sites may feel safe to some because they pose no immediate threat of violence; however, it is well-recognised that the more insidious threats posed by sexual predators, and those who prey on the wider vulnerabilities of the young, the learning disabled, the needy and the incautious, are no less harmful (indeed they are potentially more harmful) at least in part because of their pervasive nature.
In considering online ‘risk’ and its relevance for those who may lack capacity, I was referred (per the submissions of the Official Solicitor) to the descriptions of online risk set out in the UK Council for Child Internet Safety's Guidance ‘Child Safety Online: A Practical Guide for Providers of Social Media and Interactive Services’. This guide divides the risk into three areas:
i) Content risk: children receiving mass-distributed content. This may expose them to age-inappropriate material such as pornography, extreme violence, or content involving hate speech and radicalisation.
ii) Conduct risk: children participating in an interactive situation. This includes bullying, sexting, harassing, being aggressive or stalking; or promoting harmful behaviour such as self-harm, suicide, pro-anorexia, bulimia, illegal drug use or imitating dangerous behaviour. A child's own conduct online can also make them vulnerable — for example, by over-sharing their personal information or by harassing or bullying themselves;
iii) Contact risk: children being victims of interactive situations. This includes being bullied, harassed or stalked; meeting strangers; threats to privacy, identity and reputation (for example, through embarrassing photos shared without permission, a house location being identified, someone impersonating a user, users sharing information with strangers); and violence, threats and abuse directly aimed at individual users and/or groups of users.
The risks to children identified in paragraph [5] above are just as relevant to other vulnerable classes of internet users, including – significantly for present purposes – those with learning disabilities. Online abuse of disabled people has become, and is, an issue of considerable and increasing national and international concern, and justified debate; ‘mate crime’ — where internet users are befriended online with the intention exploiting them financially, physically or sexually — is a particular issue for adults with learning disabilities, as it is for children and other susceptible classes of internet user. Social media and online dating sites have increased the exposure of vulnerable disabled people to those who might exploit them. The learning disabled and other vulnerable users may readily find themselves the victims of such behaviours, which cause potentially lasting damage to their health. Those with learning disabilities may find themselves unwittingly initiating social media or internet activity which turns out to be harmful or hurtful to themselves or others; this activity is far less likely to be calculated than impulsive – indeed, many may be unaware of the consequences of their actions, confused, naïve, but perhaps surprisingly digitally savvy.
There is acknowledged public uncertainty of the law surrounding online abuse; although criminal offences do cover illegal online activity, it is acknowledged (see the Law Commission Scoping Report: 1 November 2018) that the legislation as a whole requires clarifying, consolidating and/or rationalising in order to be more effective. It is notable in this regard that while it is a crime to incite hatred because of religion or race, it is not presently a crime to incite hatred because of disability. Those who press for a change in the legislation in this regard have a compelling case.
This sets a general context in which I consider the case of A below, and in Re B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3 (‘ Re B’), the case of Miss B.
The issues
In this hearing I have been invited to make final capacity declarations under section 15 Mental Capacity Act 2005 (‘ MCA 2005’), and best interests decisions, in relation to a young man who I shall refer to as A. Specifically, I am required to consider A's residence, contact (with family and others), his care arrangements, his property and financial affairs, his capacity to consent to sexual relations, and his internet and social media use.
I heard brief evidence from Dr. David Milnes, Consultant in the Psychiatry of Learning Disabilities. A attended the hearing, supported...
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