The London Borough of Tower Hamlets v TB (by her litigation friend, the Official Solicitor) (1st Respondent) SA (2nd Respondent)

JurisdictionEngland & Wales
JudgeMr Justice Mostyn
Judgment Date17 December 2014
Neutral Citation[2014] EWCOP 53
CourtCourt of Protection
Docket NumberCase No: 11795774-03
Date17 December 2014

[2014] EWCOP 53

COURT OF PROTECTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Mostyn

Case No: 11795774-03

Between:
The London Borough of Tower Hamlets
Applicant
and
TB (by her litigation friend, the Official Solicitor)
1st Respondent

and

SA
2nd Respondent

Bryan McGuire QC (instructed by London Borough of Tower Hamlets) for the Applicant

Nicola Greaney (instructed by Miles and Partners Solicitors) for the 1 st Respondent

John McKendrick (instructed by Bindmans Solicitors) for the 2 nd Respondent

Hearing dates: 1–4 December 2014

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.

Mr Justice Mostyn Mr Justice Mostyn
1

I am concerned with the future of TB, who is a 41-year-old lady of Bangladeshi origin born on 10 May 1973. All are agreed that this is a singularly complex and challenging case.

2

I gave a fairly full interim judgment in this case on 23 August 201In paras 2 and 3 of that judgment I stated:

"2. [TB] is incapacitated within the terms of s.2 of the Mental Capacity Act 2005. The opinion of Dr. Thomas in this regard has not been challenged. He states in his principal report of 17 April 2012 as follows (para.73):

"It is my opinion that TB suffers from a moderate mental retardation, almost certainly genetic in aetiology. Mental retardation is better known in the United Kingdom as 'learning disability' or 'intellectual disability' and this describes a permanent condition affecting the brain/mind arising in childhood and resulting in an impaired ability to learn or acquire new or complex skills, accompanied by a significant impairment of adaptive functioning in some or all of the following domains: communication, self-care, home living, social interpersonal skills, self-direction, functional academic skills, work, leisure, health and safety. A Moderate Learning Disability is a significant and permanent impairment of the functioning of his mind. This is a mental disorder that satisfies the requirement of the first stage of the two-stage capacity test as set out in the Mental Capacity Act. An adult with a moderate learning disability would possess a range of cognitive skills and abilities typically found in a child between the age of 4 to 8 years. A learning disability is a lifelong condition for which there is no known cure, although the impact of cognitive impairment may be significantly lessened with specific therapeutic intervention and support so as to improve adaptive functioning."

3. Dr. Thomas then went on to consider the specific capacity of TB in certain fields or realms. He concluded as follows:

'(1) I do not consider TB to have the capacity to make decisions about her residence.

(2) TB currently lacks the capacity to make a decision about the nature and frequency of her contact with SA and also whether or not to remain living with SA, move away from the marital home herself or require him to move away. I believe that TB is not likely to acquire the capacity to make these decisions in the short to medium term.

(3) TB does not have the capacity to understand the nature, implications and consequences of a divorce from SA and, as such, lacks the capacity to make any such decision.

(4) I do not consider TB to have the capacity to make a decision about whether SSB should remain in the household."

I should explain that SA is her husband, and I will describe how she married him and the events in their marriage a little later. Her husband, SA, is, in fact, her first cousin. SSB is also her first cousin and her husband has taken her as a polygamous second wife. That marriage is valid under the laws of Islam but is completely invalid under the laws of England and Wales. As I will explain, by virtue of that second marriage, a child has been born to SSB, YSY, who is nine weeks old."

3

Since my first judgment a further daughter, ISS, has been born to SSB on 3 March 2014 of whom SA is the father.

4

In my first judgment I found that it would not be in TB's best interests to return to live in her home at 9 Emerald Mansions 1, London E1 with SA, SSB and YSY. She should instead live in supported accommodation provided by the applicant local authority ("LA"). Contrary to the submissions of both the LA, and the Official Solicitor ("OS"), who represents TB, I allowed SA to have limited interim contact with her.

5

In my first judgment I set out at paras 8 – 15 the history up to August 2012 as follows:

"8. At all events, the parties began in 1999 or 2000 their married life, this man and this incapacitated woman, and they had four children: STH, born on 1 October 2001, a girl; STM, born on 17 March 2003, a girl; SSM, born on 7 January 2009, a boy; and SHT, born on 22 January 2010, a boy. All these children were the subject of care proceedings mounted by the London Borough of Tower Hamlets against this mother and this father. Those proceedings were heard over many days and many occasions by Judge O'Dwyer and resulted in a fact finding judgment on 29 January 2010 and two further judgments on 20 July 2010 and 17 January 2011. The consequence of those three judgments were that all the children were removed permanently from these parents and have been placed for adoption, if not already adopted. In the course of his first judgment on 29 January 2010, the judge made what he described as grave findings against both parents but principally against the father, he having recognised in relation to the mother that she had disability, was unable to represent herself, that she has always lacked capacity to care for her children, and she is in receipt of a great deal of support from the local authority.

9. In his fact finding judgment the judge made, by reference to a schedule produced by the local authority, numerous findings, but for my purposes what is relevant are the findings in relation to allegation 1 made by the local authority, which was that the relationship between the parents was and at all times has been volatile. In that regard, the volatility was expressed by numerous instances, according to the allegation, of domestic violence meted out to the mother at the hands of the father. That case was proved by the testimony of a witness, Ms. B, whose evidence was accepted as being generally truthful by the judge. As a result, a number of instances of domestic violence were found proved. I refer to para.87 of the judgement where Judge O'Dwyer made the findings clear. He said, by reference to the assaults which he found proved:

"I am satisfied that the assaults and the evidence of Ms. B establishes the local authority a case that there is a volatility in the relationship between TB and the father. He is very fond of his wife, but he is under immense strain. He does lose his temper. It is also the case that he has much affection for his wife. I could see that, as he gave evidence before me, the strain of living with somebody in the position of TB cannot be underestimated. Although there is much input from the local authority and practical help, nonetheless, there are many aspects of emotional, day-to-day care that are very difficult. SA feels a very strong sense of duty, but the pressure upon him and the lack of support from any network of friends and family in this country, partly no doubt as a result of his own character, leads him at times to lose his temper and to resort to physical and verbal abuse."

Following that hearing, all the children were removed. I think the third child had already by that stage been removed. As I say, there were further judgments issued in 2011 which resulted in the permanence orders which I have referred to.

10. At the time of Judge O'Dwyer's first judgment, the mother/wife, TB, was, in fact, out of the property of the parties, 9 Emerald Mansions, in circumstances which the judge found extraordinary, but at some point she returned. She returned to a regime whereby there is 24-hour, 7 day a week, 52 week a year care in 9 Emerald Mansions, which is but a two-bedroom housing association property. So the position that endured from that point onwards was that the husband and wife were living in the property but that the carers were present in the living room 24 hours a day helping with the care of the severely incapacitated TB.

11. To add to the complications, in the summer of 2011, as I have mentioned, SA married his first cousin SSB. She was initially refused leave to enter this country by the entry clearance officer in Dhaka, but an appeal against that decision allowed her to enter for a strict six-month period on her representation that she would be financially independent and that she would assuredly leave at the end of the six-month period. As so often happens, those promises have turned out to be false and she remains in this country. Shortly after their marriage, she fell pregnant, and nine weeks ago the child I have mentioned, YSY, was born. So YSY is TB's first cousin, once removed, as well as being her stepdaughter, and the husband and both of his wives are all first cousins.

12. These proceedings were mounted at the earlier part of this year. By virtue of the order Bodey J. made, I think, in May, the issues were defined as to whether it was in TB's best interests to live in 9 Emerald Mansions; if it was in her best interests to leave, where it was in her best interests to go; if she should remain, whether it is in her best interests to reside there with her husband and/or with her husband and his second wife; and whether an order should be made under s.33 of the Family Law Act requiring SA and SSB to leave and not return. So since the early part of this year this local authority has been advancing a case that a separation was needed between this husband and this wife.

13. At an early stage experts were appointed, and I have heard...

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5 cases
1 books & journal articles
  • The role of the Court of Protection in safeguarding
    • United Kingdom
    • The Journal of Adult Protection No. 17-6, December 2015
    • 14 Diciembre 2015
    ...in this regard is intended to be facilitative ratherthan dictatorial.19. Most recently The London Borough of Tower Hamlets v. TB & Anor (2014) EWCOP 53.20. Section 48 MCA 2005 and Re F (Interim Declarations) (2009) COPLR Con Vol 390 at paragraph 36.21. A guide to carrying out capacity asses......

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