Re TF (an Adult: Residence)

JurisdictionEngland & Wales
Judgment Date26 June 2000
Date26 June 2000
Docket NumberCase No.2000/0094
CourtCourt of Appeal (Civil Division)

[2000] EWCA Civ J0626-7




Royal Courts of Justice

Strand, London WC2A 2LL


The President

Lord Justice Thorpe and

Lord Justice Sedley

Case No.2000/0094

In the matter of F (Adult Patient)

Mr. Richard Gordon Q.C. and Mr. Paul Bowen appeared on behalf of the Appellant

Mr. Nigel Pleming Q.C. and Miss Fenella Morris appeared on behalf of the 1 st Respondent

Mr. Roger McCarthy Q.C. and Mr. Nicholas O'Brien appeared on behalf of the Offical Solicitor


T is 18, having been born on the 15 th November 1981. For the purposes of this appeal on jurisdiction the parties have agreed that she lacks the capacity to make decisions as to her future and that the allegations made by the local authority as to the mother`s care of T are correct. She is said to have an intellectual age of 5 to 8 years old. The local authority placed her in local authority accommodation for those with mental handicap just before her 17 th birthday with the consent of her parents. That consent is now withdrawn. The local authority therefore seek declarations, the effect of which is intended to keep her in similar accommodation and to restrict and supervise her contact with her natural family, principally her mother. Her mother opposes the local authority plan and alleges that the court does not have jurisdiction to make the declarations sought. The Official Solicitor acts as guardian and seeks an investigation of the issues surrounding the best interests of T.


There is a long and complicated history of the family and the steps taken by the local authority to deal with the deficiencies in the care and upbringing of T and her 7 younger brothers and sisters. The father was 75 at the date of his death in 1999. The mother is 49 or 50. They married in 1984. The case for the local authority disclosed a picture of chronic neglect, a lack of minimum standards of hygiene and cleanliness in the home, a serious lack of adequate parenting and worrying exposure to those engaged in sexual exploitation and possible sexual abuse of one or more of the children including T. The 8 children were said to be suffering significant harm and at risk of so doing, based upon these numerous allegations. The local authority appears to have moved rather slowly in responding to the needs of this family. Proceedings were not issued until November 1998 when emergency protection orders were obtained in respect of all 8 children. The 7 younger children are now in the care of the local authority by order of the court in November 1998 as ultimately conceded by the mother. T was over 16 and was therefore accommodated on a voluntary basis and she and two of her sisters were placed in a specialist children`s home. In December 1998 a consultant paediatrician formed the view after examination of T that she had suffered penetrative sexual abuse. On the 17 th February 1999 the parents withdrew their consent to her remaining in the children`s home. The local authority then applied to the county court for an order under section 29 of the Mental Health Act 1983, (the 1983 Act). The application was granted by His Honour Judge Graham on the 25 th February 1999. On the 30 th September 1999 the Court of Appeal allowed the appeal some 6 weeks before her 18 th birthday and set aside the guardianship order. The judgment of this Court is reported as Re F (Mental Health Act: Guardianship) [2000] 1FLR 192.


Shortly after the decision on appeal the father died but the mother has continued to seek the return home of her eldest daughter. Once T became 18 the wardship jurisdiction was no longer available. The local authority then made the present application invoking the inherent jurisdiction of the High Court. On the 18 th January 2000 Johnson J heard a preliminary issue as to whether the High Court has jurisdiction to hear a claim for declaratory relief pursuant to RSC Order 15 r 16 in the circumstances of this case. He held that there was jurisdiction and gave permission to appeal to this Court. If there is jurisdiction to grant declaratory relief, the substantive hearing is fixed for the end of this month.


The Mental Health legislation (Guardianship)


The Mental Health Act 1959, (the 1959 Act) set out the statutory framework for the care of mentally incapacitated adults. In passing it, Parliament allowed the parens patriae jurisdiction of the High Court to lapse.


The 1959 Act made provision for guardianship orders. Under s 33 of that Act a guardianship application might be made in respect of a patient on the grounds:


"�� that he is suffering from mental disorder, being �.. in the case of a patient under the age of 21 years, psychopathic disorder or subnormality; and that his disorder is of a nature or degree which warrants the reception of the patient into guardianship under this section." (See s 33(2)(ii).)


A guardianship order, if made, gave the guardian the powers of a father over a child under 14. Amongst specific powers, reg 6(2) of the Mental Health (Hospital and Guardianship) Regulations 1960 provided that:


'�. The guardian may restrict to such extent as he thinks necessary the making of visits to the patient and may prohibit visits by any person who the guardian has reason to believe may have an adverse affect on the patient.'


Those provisions might well have been sufficient to meet the needs of T as set out by the local authority. The guardianship provisions were however perceived not to have worked well. The review of the Mental Health Act 1959 in September 1978 (Cm 7320) offered three options for the revision of the statutory regime. The publication of Cm 8405 in November 1981 revealed that the government had decided on the third option, namely the limitation of the powers of the guardian to three following essentials:

(a) the power to require the patient to live at a specified place;

(b) the power to require the patient to attend specified places for the purpose of treatment, occupation or training;

(c) the power to ensure that a doctor, social worker or other specified person could see the patient at home.


In introducing these changes contained in the Mental Health (Amendment) Bill on 19 January 1982, Lord Elton explained that the term 'subnormality' was to be replaced with the term 'mental impairment'. He continued:


"Having provided the substitute term, we had next to ensure that it was not going to be used to describe any people other than the small group to whom we wished it to apply. We therefore attached to it the requirement that, where the Act is to have effect upon a mentally impaired or severely mentally impaired person, that impairment must be, "associated with abnormally aggressive or seriously irresponsible conduct".


We have tried in this phrase not only to establish the requirement that the behaviour of the person to whom the Bill applies shall be aggressive or irresponsible but that it shall be aggressive or irresponsible to a marked degree. We did so by using the adjectives "abnormally" and "seriously". We did so after a long dictionary search and a good deal of discussion �. I do not think we can get any closer to expressing our intention, which is to limit the effect of the Bill and the Act on mentally handicapped people to those very few people for whom detention in hospital is essential so that treatment can be provided and for whom detention in prison should be avoided. That is the interpretation we intend to be put on these words. The revised definitions, and the interpretation I have just outlined, extend also of course to powers to receive people into guardianship."


The Mental Health (Amendment) Act 1982, (the 1982 Act) incorporated those provisions which were subsequently consolidated into the 1983 Act.


The sections of the Mental Health Act 1983, (which now governs mental incapacity) with which this Court is principally concerned are:


"(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 inpairment" 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...

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