Sheffield CC v S
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby,Mr Justice Munby |
| Judgment Date | 05 November 2002 |
| Neutral Citation | [2002] EWHC 2278 (Fam) |
| Court | Family Division |
| Docket Number | Case No: LS020/S5077 |
| Date | 05 November 2002 |
[2002] EWHC 2278 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEEDS DISTRICT REGISTRY
Leeds Civil Hearing Centre
Coverdale House
1315 East Parade, Leeds
The Honourable Mr Justice Munby
Case No: LS020/S5077
In the matter of the Inherent Jurisdiction and in the Matter of S (an Adult Patient)
Ms Fenella Morris (instructed by the City Solicitor) for the Claimant (the local authority)
Ms Linda Cains (instructed by Zermansky & Partners) for the first defendant (S)
Mr Bernard Wallwork (instructed by Howells) for the second defendant DS (the father)
Hearing dates: 2–3 October 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down in private on 5 November 2002. The judge hereby gives leave for it to be reported under the title Re S (Adult Patient) (Inherent Jurisdiction: Family Life).
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 patient and the other members of his family must be strictly preserved.
Mr Justice Munby
This is a dispute – a very anxious and in some respects a highly-charged dispute – between a local authority and S's father, DS, as to where S should live. Prior to the events in May 2001 which precipitated the proceedings, S had always lived at home with DS.
S was born on 7 July 1983 and is thus, in law, an adult. Sadly he is, in reality, in many respects more like a child. He suffers from a chromosomal abnormality associated with partial growth hormone deficiency. As a result of his chromosomal abnormality he has both severe learning disabilities and some physical disabilities. Although he is generally healthy he appears particularly prone to chest infections, ear infections and upper respiratory tract infections. He has difficulties with mobility and coordination which lead to him having fairly frequent trips and falls with subsequent minor injuries. He can feed himself with a spoon but is doubly incontinent. He is an emotionally warm individual who seeks human contact and communication but has only limited understanding of his own emotional needs. He can recognise familiar people and is generally a sociable individual who shows little in the way of purposeful challenging behaviour. He has no understanding of abstract concepts and struggles to make any decisions that are not based concretely in the 'here and now'. He has some dozen or so Makaton symbols but no spoken words. He demonstrates through his communication the understanding of at most 24 discrete concepts.
A formal assessment of his capacity by Dr L (a well known Consultant Psychiatrist who specialises in learning disabilities) has not been challenged by anybody. Dr L's report dated 23 April 2002 shows that S functions at approximately the same developmental level as a two year old. It is plain, and indeed common ground between all parties, that S is not able to manage his property and affairs and that, applying the test laid down by Thorpe J in In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 and approved by the Court of Appeal in In re MB (Medical Treatment) [1997] 2 FLR 426, he lacks the capacity to decide for himself where and with whom he should live. He is, accordingly, amenable to the court's inherent declaratory jurisdiction to grant relief governing the residence and day-to-day care of incapable adults.
This is, as it happens, a jurisdiction which I recently had occasion to analyse and describe at some length in A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin) [2002] Fam 213: see in particular at p 226A (paras [39]-[46]). I shall not repeat what I said there. It suffices for present purposes to emphasise only three points.
The first is that there is quite plainly here "a serious justiciable issue": see In re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1 and In re F (Adult: Court's Jurisdiction) [2001] Fam 38.
The second is that the present case falls entirely within the confines of private law. There is not here, as there was in A v A Health Authority, any element of public law. Here, as in In re F (Adult), and in contradistinction to A v A Health Authority, all the court is doing is to act as a surrogate decision-maker on behalf of S, deciding on his behalf whether he should live where the local authority is proposing, and in accommodation which it has chosen and is willing to provide, or with his father. The choice which the court has to make on S's behalf is, as in In re F (Adult), between the accommodation "package" being offered by the local authority and the accommodation "package" being offered by S's father. The court is not being asked to require the local authority to do anything it is unwilling to do.
It follows from this, thirdly, that the governing consideration is S's welfare. The jurisdiction is exercised solely by reference to the incompetent adult's best interests. This involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, emotional and welfare considerations: In re A (Male Sterilisation) [2000] 1 FLR 549 and In re S (Adult Patient: Sterilisation) [2001] Fam 15. As Thorpe LJ said in the latter case, at p 30E:
"In deciding what is best for the disabled patient the judge must have regard to the patient's welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination."
Evaluation of best interests is facilitated by use of the balance sheet suggested by Thorpe LJ in In re A (Male Sterilisation) [2000] 1 FLR 549 at p 560E:
"There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal … Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit … Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant … Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant."
None of this is controversial. Nor was it the subject of dispute between counsel, Ms Fenella Morris appearing for the local authority, Ms Linda Cains appearing for S and Mr Bernard Wallwork appearing for DS.
There are, however, two matters of principle which have arisen and which I must consider. They arise in circumstances where the relief as initially sought by the local authority included declarations that it was:
"lawful, being in S's best interests, that he reside at accommodation secured for him by the [local authority] [and] that he have only supervised contact with [DS] the frequency, timing and location of such contact to be decided by the [local authority]."
Now that is relief which, on one view, and looking at the practicalities of the matter, would have delegated to the local authority the kind of decision-making powers and responsibility for S which, in the case of a child, the local authority would have enjoyed had the court made a care order under section 31 of the Children Act 1989. And that, moreover, where the considered view of Mr F, the very experienced social work expert jointly appointed to report by the local authority and by S's litigation friend, the Official Solicitor, is, as set out in his assessment dated 7 August 2002, that
"in the main, [DS] has provided a good enough level of physical and emotional care for [S] … for the majority of the time, [DS] is able to look after his son [S] in ways which safeguard and promote his welfare".
In short, the State – public authorities – are promoting, in the case of the local authority, and, in the case of the court, are being invited to approve, a plan to remove a young incapacitated adult from the care of a parent who is more than willing to go on caring him for as he has for many, many, years and who, there is reason to suppose, may be making a reasonable job of that undoubtedly burdensome task. This, I should emphasise, is a task which DS has willingly shouldered out of love for his son.
In these circumstances two important issues of principles arise:
i) In what circumstances should the parental responsibility (I use the phrase in the colloquial sense, and not in the technical sense in which it is used in section 3 of the 1989 Act) be superseded by the court exercising its inherent declaratory jurisdiction? In particular, is there, by analogy with sections 31(2) and 100(4)(b) of the 1989 Act, any threshold requirement to establish, before the State can intervene, either the risk of significant harm and/or parenting which falls short of the reasonable?
ii)...
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