Re F (Mental Health Act:Guardianship)
| Jurisdiction | England & Wales |
| Judge | JUDGMENT OF THE COURT DELIVERED BY LORD JUSTICE THORPE |
| Judgment Date | 30 September 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0930-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 99/0682/2 |
| Date | 30 September 1999 |
[1999] EWCA Civ J0930-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHOREDITCH COUNTY COURT
(His Honour Judge Graham)
Royal Courts of Justice
The Strand
London WC2
Lord Justice Evans
Lord Justice Thorpe
Lord Justice Mummery
CCFMI 99/0682/2
MR R GORDON QC and MISS S FORSTER (Instructed by Messrs Goodman Ray, London E8 4AG) appeared on behalf of the Appellant
MR N PLEMING QC and MISS F MORRIS (Instructed by Legal Department, London Borough of Hackney, Stoke Newington N16 0JR) appeared on behalf of the Respondent
Thursday 30th September, 1999
The parties to this appeal are effectively the London Borough of Hackney and JF. The appeal arises out of Mental Health Act proceedings in the Shoreditch County Court. However in reality the focus of the case is upon TF who was born on 15th November 1981 and who will shortly attain her majority. Furthermore the real issues in the case surround the neglect, abuse and protection of children.
JF is 75 years of age and his wife D is 49 years of age. They began to cohabit in 1980 and T is the eldest of eight children born to them between 1981 and 1992. They married in 1984. In the presentation of their case for care orders in relation to the F children Hackney prepared a chronology in 1999 which runs to 15 pages building up a picture of chronic neglect, including failure to provide adequate standards of parenting as well as cleanliness in the home. Within the chronology there are also numerous instances in which the children have been exposed to contact with adults prone to sexual abuse or exploitation of children. Those proceedings are not before this court but our understanding is that Hackney's case is disputed and that the facts will be determined at a ten day final hearing fixed for November next. If Hackney prove a large measure of what is asserted in the chronology it is perhaps surprising that proceedings were not issued until the 11th November 1998 when Hackney obtained emergency protection orders in relation to all eight children. The children were removed from the family home in E5 and T, together with two of her sisters, was placed at Agatha House, a specialist children's home in N16. On 19th November the emergency protection order in respect of T was extended to the 26th November and interim care orders were made in respect of the seven other children. An interim care order could not be made in respect of T since she was over 16. After 26th November T's accommodation at Agatha House was extended on a voluntary basis. On 8th December she was examined by a consultant paediatrician who concluded that she had experienced penile penetration. On 17th February 1999 the parents withdrew their consent to T's continuing accommodation at Agatha House. Hackney were clear that to permit T's return home would expose her to risk. The legal path to prevent that return was far from clear.
One option was to apply under section 100(3) of the Children Act 1989 for leave to issue proceedings in respect of T under the inherent jurisdiction. The effect would have been to render T a ward for the remainder of her minority. During that period the court would have ensured her continuing protection in the exercise of its almost unlimited powers. Furthermore in such proceedings T would have had the advantage of representation by the Official Solicitor. The option preferred by Hackney was to apply for guardianship under the Mental Health Act 1983. That path was open since T's mental age has been assessed as being within the five to eight year range. It is common ground therefore that she suffers from 'arrested or incomplete development of mind' within the meaning of section 1(2) of the Act. She is therefore a patient within the meaning of section 1(1) of the Act. Hackney could not obtain a guardianship order under section 7 of the Act because T's father objected. Accordingly Hackney applied for his displacement as nearest relative on the grounds that his objection to the guardianship order was unreasonable. The application was filed in the Shoreditch County Court on 25th February 1999. Evidence was filed in support and in opposition. Each side relied on the evidence of an expert on the issue of whether or not T was mentally impaired within the meaning of section 1(2) of the Act. One expert expressed the opinion that she was whilst the other expressed the contrary opinion. The application was granted by His Honour Judge Graham on 4th June 1999. He accepted the evidence of Hackney's expert and held that T suffered from mental impairment. He rejected the submission that the alternative route of wardship was more appropriate and he concluded that T's father had acted unreasonably in opposing the imposition of guardianship.
Mr Gordon QC attacks both conclusions. He emphasises that the statutory definition of mental impairment requires proof not only of a state of arrested or incomplete development of mind but also of one that is associated with 'seriously irresponsible conduct'. His simple submission is that a natural desire to return home, albeit to an inadequate home, cannot be labelled seriously irresponsible conduct. Secondly he submits that an application to the Family Division judge in wardship was always the more appropriate remedy for a number of reasons. The first of these was the absence of representation for T in the Mental Health Act proceedings. At times during his argument Mr Gordon seemed to elevate this consideration into an independent ground of appeal constituting a breach of T's rights under the European Convention.
For Hackney Mr Pleming QC submitted that what constituted seriously irresponsible conduct was a pure issue of fact. The judge was clearly entitled to reach the conclusion that he did on Hackney's evidence as to the risks to which T would be exposed were she to return home and on the expert evidence which the judge accepted. He stressed the finite nature of the guardianship order and the rights of appeal to a Mental Health Review Tribunal. He naturally relied upon the fact that the protective powers in wardship expired on T's eighteenth birthday and he contrasted the limited powers of the Family Division judge in making best interest declarations in respect of adult patients.
This appeal does raise some difficult issues but we have reached the conclusion that Mr Gordon is entitled to succeed on both his primary grounds.
Before giving our reasons we will set out those parts of the sections of the Mental Health Act 1983 with which we are principally concerned:
"1(1) The provisions of this Act shall have effect with respect to the reception, care and treatment of mentally disordered patients, the management of their property and other related matters.
(2) In this Act
'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and 'mentally disordered' shall be construed accordingly;
'severe mental impairment' means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and 'severely mentally impaired' shall be construed accordingly;
'mental impairment means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and 'mentally impaired' shall be construed accordingly;
'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.
7(1) A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as 'a guardianship application') made in accordance with this section.
(2) A guardianship application may be made in respect of a patient on the grounds that
(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.
8(1) Where a guardianship application, duly made under the provisions of this Part of this Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person
(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so...
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