Salford City Council v BJ
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby |
| Judgment Date | 11 December 2009 |
| Neutral Citation | [2009] EWHC 3310 (Fam) |
| Docket Number | Case No: 7MA90621 |
| Court | Family Division |
| Date | 11 December 2009 |
[2009] EWHC 3310 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
(In Private)
Before : LORD JUSTICE MUNBY
(Sitting as a judge of the Family Division)
In the matter of BJ (Incapacitated Adult)
Case No: 7MA90621
Ms Bonita Waldman (Solicitor, Salford City Council) for the Claimant (local authority)
Mr Joseph O'Brien (instructed by Irwin Mitchell) for the Defendant (BJ)
No Hearing : matter dealt with on written submissions
Lord Justice Munby :
This is a deprivation of liberty case in which I gave judgment on 16 May 2008: Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295. I shall take that judgment as read. I add only, so as to set the scene, that the case involves BJ, a man of 23 who I found to lack capacity and whose best interests, as I explained, were served by him continuing to reside in a placement at MH notwithstanding that the regime at MH, and the implementation of the care plan for BJ devised by the local authority and which I approved, involves a deprivation of his liberty within the meaning of Article 5 of the Convention.
Given that BJ is being deprived of his liberty it follows as a matter of law that he is entitled to a review by the court of the lawfulness of the detention 'at reasonable intervals': Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, at paras [15]-[16], applying what I had earlier said in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. Otherwise there will be a breach of Article 5.
In my judgment I considered the procedure for reviews at the interim stage before the final hearing (see paras [27]-[34]) before turning to consider reviews following the final hearing, distinguishing in this context between what I said were the necessary reviews by the court (paras [35]-[43]) and the necessary internal reviews by the local authority (paras [44]-[53]).
In relation to reviews by the court following the final hearing I said (para [35]) that “there should be a review at or about (but no longer than) 12 months after the final hearing, and thereafter, subject to any different order made in the meantime, at similar intervals so long as the deprivation of liberty continues.” In relation to the form the review should take I said this (para [40]):
“Art 5(4) does not necessitate an oral hearing on every occasion. It must depend upon the circumstances. I am inclined to think that normally it would be appropriate for there to be an oral hearing at the first annual review but that if the position at that stage seems to have stabilised and the circumstances are such that change is unlikely within the next year the next and subsequent reviews can probably take place without an oral hearing. This must always, of course, be subject to the right of any party, or, indeed, of the judge (who has an important role to play in this respect), to require that there should in fact be an oral hearing if it appears, for example, that the evidence requires further investigation or scrutiny (whether by cross-examination or by directing further investigations or assessments) or that there are matters on which the court would be assisted by argument.”
In relation to the frequency of internal reviews I said this (para [44]):
“Between these reviews by the court there must be regular internal reviews. In practice - and this is a practice which the Official Solicitor supports and which I commend - these are usually held once every 8 to 10 weeks. Mr Crabtree suggests that quarterly reviews may suffice. Particularly in the early months and years I would incline to agree with Mr O'Brien, but I would also agree with Mr Crabtree that one cannot be too prescriptive. As he rightly says, the review structure must always be specifically tailored to the needs of the individual to whom it applies.”
Turning to the particular facts of the case I concluded as follows (para [56]):
“Congruent with the general approach I have outlined above, and looking to BJ's particular circumstances - as Mr O'Brien observes, the facts of BJ's case are stark - what in my judgment is required in the present case is this:
(i) in June 2008 a review before me in accordance with the directions given by Ryder J on 7 May 2008;
(ii) subject to any further information which may emerge at or as a result of that hearing, a further review in court with an oral hearing in (say) May or June 2009; and
(iii) in between those two reviews by the court, internal reviews every 8 to 10 weeks. At least for the first year I agree with Mr O'Brien that reviews should be at this level of frequency rather than the 3-monthly reviews suggested by Mr Crabtree.”
In accordance with my judgment, the matter came back before me for further consideration. On the basis of written submissions I made an order on 4 July 2008 continuing the previous interim regime pending a further review fixed for 25 July 2008. Following a hearing on the latter date - the final hearing in the sense in which I had used that phrase in the judgment - I made a further order, continuing the previous regime and providing for a further review in May 2009.
In the event the May 2009 review had to be postponed. I was kept informed of developments. Moreover, as Ms Waldman on behalf of the local authority points out, the local authority was throughout continuing to hold regular internal reviews and the restrictions on BJ in relation to deprivation of liberty, residence and contact were considered at each review. If it had been considered necessary, either the local authority or the Official Solicitor could have applied to the court for an urgent hearing, but neither considered it necessary, both being satisfied (and, in my judgment, correctly satisfied) that the existing regime at MH continued to meet BJ's best interests.
I am quite satisfied that the delay, unfortunate though it is, has not in fact caused any prejudice to BJ. That said, it is important in cases of this kind that such delays are not allowed to occur. I very much hope that there will be no repetition in this or any other such case.
I emphasise the point, because in this case, as I have said, it is conceded that the regime which I have approved for BJ involves a deprivation of his liberty within the meaning of Article 5. And where in a case such as this there is a deprivation of liberty, regular reviews by the court are not merely desirable, not merely a matter of good practice; they go, as both the Strasbourg jurisprudence and the domestic case-law make clear, to the very legality of what is being done.
Since the hearing in July 2008 the local authority as I have said have held regular reviews. Initially they took place generally on a bi-monthly cycle (meetings on 23 September 2008, 11 September 2008, 13 January 2009, 10 March 2009, 5 April 2009 and 5 May 2009) but at the meeting on 11 August 2009 it was agreed between the local authority and the Official Solicitor that quarterly meetings would suffice in future. The most recent meeting took place on 13 November 2009.
The parties were agreed, in the light of how matters stood (see below), that, despite what I had said in my judgment (see Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, at para [40], quoted in paragraph [4] above), there was no need for the present review to include an oral hearing. In the circumstances, and as I made clear in my earlier judgment it must depend upon the circumstances, I entirely agreed that an oral hearing was unnecessary. The review has accordingly been conducted on paper, with the assistance of written submissions from Mr O'Brien on behalf of the Official Solicitor dated 4 December 2009 and from Ms Waldman of the local authority dated 7 December 2009. I am grateful for their assistance.
In addition to the minutes of each of the meetings I have referred to, a statement from BJ's social worker and an up-dated care plan dated 18 May 2009, I have an up-dating report dated 4 December 2009 from Dr C, a Consultant in Learning Disability Psychiatry who sees BJ regularly in her outpatient psychiatry clinic, and an up-dating report dated 14 August 2009 (further up-dated to 3 September 2009) from Dr H, a Consultant Psychiatrist who had previously provided expert reports to the court dated 3 February 2008 and 7 November 2008.
Unsurprisingly, given BJ's circumstances, Dr C and Dr H both agree that BJ continues to lack capacity in all material respects. They also agree that the placement at MH continues to meet BJ's best interests. Dr C says that BJ has made “remarkable progress” there. Importantly, and Mr O'Brien on behalf of the Official Solicitor understandably stresses the points, Dr H notes that the restraints on BJ's liberty are “minimal” and “wholly directed to enhancing his opportunities and skills” and concludes that the arrangements for BJ at MH which I have previously approved “remain appropriate, proportionate and constitute a minimum restriction upon BJ's liberty and allow access to opportunities which he would otherwise not have” (emphasis added). Dr H further notes that there have been no...
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