Re GJ, NJ and BJ (Incapacitated Adults)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 16 May 2008 |
| Neutral Citation | [2008] EWHC 1097 (Fam) |
| Docket Number | Case No: 7MA90621 |
| Court | Family Division |
| Date | 16 May 2008 |
[2008] EWHC 1097 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY (In Private)
The Civil Justice Centre
Vernon Street
Liverpool L2 2BX
Before : Mr Justice Munby
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the various members of the family must be strictly preserved
Case No: 7MA90621
(1) Gj
(2) Nj
(3) Bj (by Their Respective Litigation Friends)
Mr Simon Crabtree (instructed By Salford City Council) For The Claimant (local Authority)
Mr Joseph O'brien (instructed By Stephensons Solicitors Llp) For The Third Defendant (bj)
The Other Parties Were Not Involved In The Issue To Which This Judgment Relates
Hearing dates: 5–6 February 2008 (written submissions lodged on 4 and 20 March 2008)
Mr Justice Munby :
These are proceedings in respect of GJ, NJ and BJ brought by the local authority under the inherent jurisdiction of the court with regard to incapacitated adults.
The matter which I address in this judgment – an important issue relating to the appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention – relates solely to BJ.
The background
The family history is complex and the involvement of the local authority longstanding. But for present purposes I can be brief.
NJ, who was born on 21 February 1978, and BJ, who was born on 4 March 1986, are related through adoption, their adoptive father being GJ, who was born on 28 February 1946. Their adoptive mother, VJ, died in 2005. The incapacities which unhappily afflict both NJ and BJ are of long standing. GJ's current difficulties are the result of a severe stroke which he suffered in June 2007.
The proceedings were issued on 13 June 2007 and in accordance with case management directions given by Ryder J on 19 June 2007, 27 September 2007 and 26 November 2007 came on for hearing before me on 5 February 2008. Since the only matter with which I am currently concerned relates to BJ, I deal only with him.
By the time the case was opened before me there was properly, in the light of all the expert and other evidence, a very substantial degree of consensus between the relevant parties. I made declarations that BJ lacks capacity, inter alia, to litigate, to determine where to reside and when it is safe and/or appropriate for him to leave his placement, and to decide on contact with others. I also made a declaration that it is lawful and in BJ's best interests for him to continue to reside in his current placement, which I shall refer to as MH.
The order contained a recital that the local authority accepted for the purposes of the proceedings that implementing the care plan it had devised for BJ, and which I approved, involves a deprivation of his liberty. In my judgment that concession was correctly made: see JE v DE (by his litigation friend the Official Solicitor, Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150.
In these circumstances the order also contained declarations that:
“it is lawful and in BJ's best interests that whilst he continues to be a resident at MH and pending future reviews that the reasonable and proportionate measures set out in the care plan and risk assessment dated November 2007 (including those measures which amount to a deprivation of liberty) be taken to prevent BJ leaving;
it is lawful and in BJ's best interests that reasonable and proportionate measures as set out in the care plan … (including those measures which amount to a deprivation of liberty) be in place to prevent a risk of harm to himself and/or to others;
it is lawful and in BJ's best interests for the [local authority] to use reasonable and proportionate measures to regulate when and in what circumstances BJ may have contact with family, friends and acquaintances and in the case of [GJ] permission to refuse such contact.”
The references to “reasonable and proportionate measures” are to be noted. That, in my judgment, is the standard by which such measures are to be assessed and justified, just as, in my judgment, the particular measures contemplated in the present case in relation to BJ were indeed reasonable and proportionate in the light of all the evidence.
In relation to the deprivation of BJ's liberty, the order went on to provide both for a series of interim reviews by the local authority in conjunction with the Official Solicitor, BJ's litigation friend, and for a judicial determination as to the appropriate review structure for the future. In respect of that matter, the order went on to provide for the lodging sequentially of skeleton arguments and relevant supporting materials by counsel for the Official Solicitor, Mr Jospeh O'Brien, and counsel for the local authority, Mr Simon Crabtree.
The time table I had set slipped a little, and in the event I received the very helpful skeleton arguments that Mr O'Brien and Mr Crabtree had prepared on, respectively, 4 and 20 March 2008. I am grateful to both of them for the trouble they have taken and apologise for the subsequent delay in giving judgment.
The order had contemplated that I might require additional oral submissions, but in the event this has proved not to be necessary. Accordingly, and as contemplated by the order, I now hand down judgment on the issue I have identified, namely the appropriate review structure to be put in place for so long as BJ remains at MH.
The legal landscape
Anyone familiar with this branch of the law will recognise that the problem with which I am concerned arises out of the so-called Bournewood gap – see R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458, HL v United Kingdom (2004) 40 EHRR 761 and JE v DE (by his litigation friend the Official Solicitor, Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150– and that the particular issue before me is one that I touched on in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. No-one has suggested that Re PS was wrongly decided and the opportunity afforded to me for subsequent reflection gives me no reason to reconsider what I there said.
I need not rehearse what I said in Re PS. As will be appreciated, the issue with which I am here concerned turns in the final analysis upon Article 5(4) of the Convention, which provides that:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 5(4) has to be applied in the light of the Strasbourg jurisprudence to be found set out in Winterwerp v The Netherlands (1979) 2 EHRR 387 and in HL v United Kingdom (2004) 40 EHRR 761. I summarised this in Re PS at para [20]:
“our domestic law must give effect to the principle that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”
I continued:
“Art 5(4) provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court. In the case of someone deprived of his liberty on the ground of unsoundness of mind, there are two aspects to this ( Winterwerp at para 55, HL at paras 135, 140):
(a) First, the lawfulness of the detention has to be reviewed not merely in the light of any domestic legal requirements but also in the light of the text of the Convention, the general principles embodied in the Convention and the aim of the restrictions permitted by Art 5(1)(e). Thus the review must be wide enough to bear on those conditions which are essential for the lawful detention of a person on the ground of unsoundness of mind, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.
(b) Secondly, given the very nature of the deprivation of liberty under consideration in cases within Art 5(1)(e), there must be a review of the lawfulness of the detention 'at reasonable intervals'. Domestic law must provide 'speedy' and 'periodic control' at 'reasonable intervals'.”
The first of these two requirements goes, as will be appreciated, to the nature and intensity of the necessary review, the second to the frequency of the reviews.
There are two further passages in Re PS to which I should refer. The first is at para [23] where I indicated that:
“Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.”
The other is at para [26] where, referring to the judgment of Wall J (as he then was) in Re C (Detention: Medical Treatment) [1997] 2 FLR 180, I indicated that:
“Any order directing or authorising … detention … should contain an express liberty to any party (including the [person detained]) to apply to the court for further directions on the shortest reasonable notice.”
These are the principles which, in my judgment, have to be applied in the present case.
In Re PS at para [23] I observed that the full implications of all this...
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