WU v BU (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 24 September 2021 |
| Neutral Citation | [2021] EWCOP 54 |
| Docket Number | Case No: COP 13603831 |
| Court | Court of Protection |
[2021] EWCOP 54
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts DBE
Case No: COP 13603831
Parishil Patel QC and Ian Brownhill (instructed by Ashfords Solicitors) for the Applicant
Bridget Dolan QC (instructed by Odonnells Solicitors) for the First Respondent
NC appeared as a litigant in person
Laura Twist (instructed by the Council's Legal Department) for the Council
Hearing dates: 6, 7 and 8 July 2021
APPROVED JUDGMENT
These proceedings concern BU, a 70 year-old woman who has a diagnosis of vascular dementia 1. In July this year, I dealt with an attended hearing in the Royal Courts of Justice during the course of which I had the pleasure and privilege of meeting BU and speaking to her privately, albeit that our meeting had to be conducted remotely over a video platform. The issues before the court on that occasion concerned the extent to which BU should be prevented from having contact with NC, the second respondent in these proceedings. NC and BU have formed a relationship which has become, for BU, a central and crucially important part of her life and, as she sees it, pivotal to her emotional wellbeing and happiness. These proceedings have been brought by her daughter as a representative of her wider family members because of their increasing concerns about the extent to which she is vulnerable to harm as a consequence of that relationship. Those concerns flow from their observations, confirmed by the expert evidence in this case, that the relationship which BU has with NC is characterised as one of coercive control exerted by him in several aspects of her day-to-day life and in particular in relation to the management of her financial affairs. BU's diagnosis of vascular dementia makes her vulnerable to that alleged control in that she does not recognise it to be an aspect of her relationship with NC. NC denies he has acted in any way to harm BU or expose her to detriment, financial or otherwise. He believes that this court has no role to play in relation to her decision-making since he maintains that she is capacitous in her own right and able to make choices and decisions for herself.
Whilst there are several legal issues which fall for determination in this judgment, what lies at the heart of this case is the happiness and wellbeing of a much-loved mother and daughter. BU said to me at the end of our meeting that I held her life within my hands. That is the extent to which she perceives her future happiness to be bound up in her relationship with NC. She cannot presently countenance an existence where he is not an integral part of her life. She maintains that strength of conviction despite the fact that, as a result of earlier court injunctions, she has had no contact with NC for over a year. In circumstances where personal autonomy and life choices are a central aspect of the human rights which this court is bound to uphold and respect, it is only in limited circumstances where it can or should intervene.
It is the applicant's case that her mother's relationship with NC has caused a complete breakdown in family relationships. WU and her sister are now all but estranged from their mother despite the concerns which they have for her wellbeing. BU now has a very strained relationship with her 95 year-old recently widowed father. She is no longer enjoying the company of her young grandchildren who no doubt miss her very much. WU, and the wider family, wish to be reunited with BU in the absence of NC's influence. It is their case that the evidence which is now before the court demonstrates that NC is a
serial offender who has a history of targeting the vulnerable for financial gain and that BU is simply his latest victim. For his part, NC alleges that he has not exerted any control over BU. He maintains that whatever choices she has made about various personal or financial transactions have been her own. He presents himself as a victim of the wider family's hostility and prejudice. He maintains that BU's daughters have financial reasons of their own which are driving their wish to marginalise him as an important person in their mother's life. He views his relationship with BU as a romantic, albeit platonic, bond which he hopes will be given legal status in due course through a civil partnership. Part of that ‘contract’ between them will recognise his ability to form sexual relationships outside that relationship if he choosesSince these proceedings were commenced in May 2020, the court has already made a final declaration under the Mental Capacity Act 2005 that BU lacks capacity to make decisions in relation to her property and financial affairs. On 24 November 2020, HHJ Marston made an order appointing a deputy for BU's property and financial affairs. WU now invites this court to put in place further orders for her mother's protection. She seeks:-
(i) a declaration pursuant to section 15 MCA 2005 that BU lacks capacity to make decisions about her contact with others, including NC;
(ii) an order pursuant to section 16 MCA 2005 which prevents NC from having any further contact with BU (including the continuation of the existing injunction which currently remains in place to this effect); and
(iii) an order under the court's inherent jurisdiction which prevents a marriage or civil partnership between NC and BU or, alternatively, an order pursuant to section 63A of the Family Law Act 1996 (a forced marriage protection order).
The Issues
On behalf of WU, Mr Patel QC and Mr Brownhill have defined the issues to be determined in this case as these:
a. Should NC be allowed to reopen the orders made by HHJ Marston in November 2020 in respect of the management of BU's financial affairs?
b. Does BU lack capacity to make decisions in relation to her contact with others, including NC?
c. If so, what orders should be made?
d. Is BU subject to coercive control by NC?
e. If so, what orders should be made?
As the Official Solicitor acknowledges, BU has struggled to assert herself throughout her adult life. What is being proposed in the context of these proceedings is what she perceives to be a serious and fundamental overriding of her wish to maintain a relationship with NC and to enter into a civil partnership with him so as to formalise legal relations between them. Her rights to a family life under Article 8 and her rights to marry a person of her choosing under Article 12 are fully engaged in this instance. I need no persuasion that such a profound interference as that sought would be a very significant step which would require compelling justification if it were to be regarded as both reasonable and proportionate and thus a lawful intervention. In this context, the role of the Official Solicitor as BU's litigation friend is crucial. I have in the material before the court several lengthy attendance notes of conversations which BU's solicitor, instructed by the Official Solicitor, has had with BU. They are meticulously recorded and reveal in detail the importance which she attaches to the preservation of her relationship with NC. These wishes and feelings are a very important part of the balancing exercise which this court must perform and I bear well in mind the potential emotional consequences for BU of any order which continues the enforced separation between them.
The Background
BU lives at a property which she owns. That property is mortgage-free. It has been her home for the last twelve years. She and her former husband had two daughters whilst they were married. Their marriage ended when the two children were very young and BU has effectively raised her family on her own and without any effective support from her former husband. The collapse of her marriage was plainly a traumatic event for BU. She told me something about the emotional pain which the separation had caused and the keen sense of loss which she felt when the children's father left their family home. She has not had any meaningful adult relationship with another since that marriage ended.
BU has always benefitted from a measure of financial support from her own parents, each of whom enjoyed successful professional careers of their own. Her mother died in 2019 but she had practised as a consultant anaesthetist prior to her retirement. Her father is now in his mid-nineties. He had a successful career as a partner with a leading international management consultancy. He lives in his own home in Surrey albeit that he now needs help with his care. As a result of the financial support which BU received over the years from her family, she was able to devote her time and energies to her role as the children's mother without needing to work outside the home. By all accounts, they were a close-knit unit. WU's written evidence reflects the extent to which both she and her sister remained in close touch with their mother after they had left home to begin independent family lives of their own. Both daughters live in different parts of the country with their partners. WU's sister is married and has two children of her own. Prior to their mother's relationship with NC, both were in regular contact with their mother and each was involved in the day-to-day aspects of her life. It appears to have been a close, loving and committed extended family relationship.
At the time these proceedings were commenced, BU had significant financial resources at her disposal. She and her father used the same firm of stockbrokers to manage their respective investment portfolios. She relied on her father and her professional advisers for assistance in managing her finances. At the time of her appointment as BU's financial deputy, KE estimated the value of BU's assets to be c....
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