Rk (by her litigation friend the Official Solicitor) v (1) BCC (2) YB and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Gross,Mrs Justice Baron |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1305 |
| Docket Number | Case No: B4/2011/0258 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2011 |
[2011] EWCA Civ 1305
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE MOSTYN
COP 11760866
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Gross
and
Mrs Justice Baron
Case No: B4/2011/0258
Richard Gordon QC and Joseph O'Brien (instructed by Irwin Mitchell LLP) for the Appellant
Jonathan Cowen (instructed by BCC) for the First Respondent
David Lock QC and Laura Davidson (acting pro bono instructed by Anthony Collins Solicitors) for the Second and Third Respondent
Hearing dates : 12–13 October 2011
The Facts
This is an appeal from the judgment of Mostyn J dated 21 December 2010 pursuant to permission granted by Wilson LJ on 9 June 2011. Although we heard the appeal in open court on 12 and 13 October 2011, we hereby impose reporting restrictions. In particular, nothing must be published which in any way identifies any of the parties to the proceedings, whom we propose to identify only by initials or function. Any application to lift the restrictions imposed by this judgment should be made on notice to the full court. Mostyn J sat as a judge of the Court of Protection. These proceedings in that court were initiated by the mother of RK as her litigation friend. By her Application Form issued on the 23 September 2009 the applicant stated the matters that she wanted decided in paragraph 5.1, the orders that she sought in paragraph 5.2, and the perceived benefits to RK in paragraph 5.3, all as follows:-
"5.1 Upon determination of whether RK lacks capacity to decide the following:
1. What her health and social needs are;
2. Identify an appropriate residential placement suitable for her needs;
3. Identify appropriate medical and/or therapeutic interventions to meet her needs.
5.2 1. An interim report be prepared in relation to RK's capacity to make decisions specified in 5.1 above.
2. An up to date core assessment and care plan be completed.
3. An interim report be prepared in relation to whether KC home is appropriate to meet RK's needs.
4. BCC disclose details of why RK has moved residence, the s47 investigation, risk assessments and any other documents relating to RK and which impact upon her under the s20 agreement.
5. It be declared that BCC will not take any decision in relation to RK's welfare or residence without consulting her parents as required.
5.3 To determine RK's capacity to make welfare decisions.
To investigate the risks posed to RK by BCC's choice of residence and decision making and whether those choices and decisions are reasonable and in RK's best interests.
To ensure RK's parents are kept informed as required under s20 agreement of BCC's proposed decisions in relation to RK's welfare.
To protect RK from abuse she may be suffering whilst in the care of BCC, and investigate the nature of that abuse."
In her Application Notice dated 30 September 2009 the applicant sought a direction for the appointment of the Official Solicitor to represent RK if she were deemed to lack capacity. The stated grounds were as follows:-
"YB is RK's representative and litigation friend. RK is voluntarily placed with the Local Authority and as such parental responsibility is shared with BCC. As RK can not communicate, YB as her mother is best placed to indicate what RK's wishes and feelings are and for this reason is acting as her litigation friend. RK is very upset in her current placement and is not eating which among other reasons, is why YB wishes to bring the application on RK's behalf to have RK's best interests determined. YB has no view on what is in RK's best interests in so far as she will agree with whatever the Court decides, should RK be deemed as not having capacity.
As there is a degree of urgency to the application, RK via YB made the application for determination of her best interests rather than negotiating with the Local Authority to make the application.
Once capacity has been determined, if RK is deemed to not have capacity; YB wishes to step aside as RK's litigation friend and allow the Official Solicitor to represent her daughter's interests."
The order of 24 September 2009 to which the later Application relates was made by District Judge Walton in London. He granted the applicant permission to proceed pursuant to Section 50(2) of the Mental Capacity Act 2005, he joined BCC and the father as parties and he directed a Section 49 report.
The District Judge made a further order on 25 November following the arrival of the Section 49 report completed on the previous day. By the second order he appointed the Official Solicitor as RK's litigation friend, transferred the case to Birmingham and added standard directions.
As the case papers demonstrate, the issue raised by the applicant was a practical one: She wanted the Court of Protection to rule on BCC's case management and particularly its continuing placement of RK at KC home. The application had been issued in a rush following an emergency move.
In Birmingham the matter was listed before HHJ Cardinal, the Court of Protection nominated judge. At a directions hearing on 2 June 2010 the Official Solicitor asserted that the current care plan and arrangements for RK might include a deprivation of liberty. Accordingly the first paragraph of the order of 2 June 2010 transferred the case forthwith to a high court judge sitting in the Court of Protection 'for a hearing on the issue of whether the current arrangements amount to a deprivation of RK's liberty.'
The matter came before Mostyn J on 28 July 2010 when he fixed the preliminary issue hearing for December 2010.
The Law
Most of the argument focused on the second of the 3 elements that must be satisfied to establish a breach of Article 5, namely the element of consent.
Mostyn J dealt with this element in paragraph 33 of his judgment when he said:-
"My primary decision is that, given the terms of Section 20(8), the provision of accommodation to a child, whether aged seventeen or seven, under Section 20(1), (3), ( 4) or (5) will not ever give rise to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. If the child is being accommodated under the auspices of a care order, interim or full, or if the child had been placed in secure accommodation under Section 25, then the position might be different, but that is not the case here. "
This proposition is of course heavily criticised by Mr Gordon QC and Mr Lock QC and even Mr Cowen chooses to modify the proposition before defending it.
Mr Cowen's modification expressed in paragraph 12 of his skeleton argument...
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