G v E & Ors (Rev 1)

This is a renewed application for permission to appeal (the application having previously been dismissed on the papers by Arden LJ on 21 April 2010) against a judgment and order given and made on 26 March 2010 by Baker J, sitting in the Court of Protection: see G v E & Others [2010] EWHC 621 (Fam).

The judgment is in the public domain and readily accessible on BAILI, so I can be brief. The case concerns E, a young man of 19 with severe learning disability who suffers from a rare and very complex genetic condition. It is common ground that he lacks capacity. He had been living for over ten years with F, initially as a foster carer and subsequently under an adult placement, until he was removed by the local authority in circumstances of which Baker J was extremely critical and which he found had breached E’s Article 8 rights. The local authority then placed E, first at the V Unit then at Z Road, without any prior judicial sanction and in circumstances which Baker J found involved in each case an unlawful deprivation by the local authority of E’s liberty in breach of his Article 5 rights.

The proceedings were begun on 13 November 2009 in the Court of Protection by E's sister, G. The matter came before Ryder J on 8 December 2009. The order which he made on that occasion declared in the interim that, pending the hearing of an interim issue for which he gave directions, it was in E's best interest to continue to reside at Z Road, that declaration being made pursuant to a recital that the court had heard no argument, made no findings on the issue of deprivation of liberty and best interests and made the order as a result of the provisional agreement of the parties.

The interim hearing directed by Ryder J came on before Baker J. Baker J directed a review hearing on 6 May 2010 and a final hearing on 19 July 2010 with an estimated length of hearing ten days.

So far as concerns the matters now raised in the Court of Appeal the major issue for Baker J was whether, pending the final hearing, E should remain at Z Road or return to live with F. That issue was described by the Official Solicitor and the judge as “exceptionally difficult and finely balanced.” In the event Baker J concluded, differing on this point from both the Official Solicitor and the independent social worker, that E should remain at Z Road pending the final hearing.

There is no challenge to Baker J's decision insofar as it involved the exercise of discretion. What is said by Ms Kerry Bretherton, appearing before us as before the judge on behalf of G, is that Baker J fell into legal error.

A number of grounds of appeal are identified by Ms Bretherton. The first, which is set out in paragraphs 3 to 5 of the grounds, arises in this way. In paragraph 97 of his judgment Baker J posed the question “whether the law stipulates that the court may not entertain an application for an order under s.16 of the [Mental Capacity Act 2005] that would have the effect of depriving a person … of his liberty unless satisfied that his condition warrants compulsory confinement.” The judge answered the question he had posed in the negative, thereby, submits Ms Bretherton, falling into legal error. Her complaint is encapsulated in the propositions that the learned judge failed to apply the Strasbourg jurisprudence in Winterwerp v The Netherlands (1979-80) 2 EHRR 387 and failed to follow the approach, which as it happens I had adopted, in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083.

Arden LJ, refusing permission, said that even if the argument based upon Winterwerp was correct, nonetheless there was, in her opinion, based upon what Baker J had said in paragraph 48 of his judgment, medical evidence satisfying the Winterwerp conditions. Materials which have been put before us in the grounds for renewal prepared by Ms Bretherton suggest that that may not in fact have been the case. In the circumstances, as indeed we indicated at the outset we were provisionally minded to do, I would give permission to appeal on this ground not merely because, as it seems to me, the factual premise upon which Arden LJ made her decision may not, in the light of things, be sustainable but also because, in any event, it seems to me to raise an important matter of principle in relation to which it is desirable that this court should give definitive guidance. I would therefore, in relation to this ground of appeal, give permission in accordance with rule 173(1)(a) of the Court of Protection Rules 2007.

The second ground of appeal, set out in paragraphs 6 and 7 of the grounds, relates to the order made by Ryder J to which I have already referred. It is submitted by Ms Bretherton that Ryder J fell into legal error and that the matter, bearing in mind the circumstances in which the case came before Ryder J, is one which is open to her now to take in this court. I confess to some scepticism as to whether that ground of appeal is arguable. However, it seems to me that it would be desirable in the circumstances that this court should have the opportunity of considering the matter and therefore, for my part, I would give permission in relation to that in accordance with rule 173(1)(b).

The third ground of appeal, set out in paragraph 8 of the grounds, is a complaint that procedures were not dealt with speedily, as required by Articles 6 and 8 of the Convention. Arden LJ expressed scepticism in relation to that, questioning whether it was in truth a ground of appeal or merely a generalised complaint; and Ms Bretherton in her grounds of renewal has in effect accepted that the matter is not an independent ground of appeal, although she hopes that the court in due course, when it comes to hear the substantive appeal, might express some views about the disturbing listing problems which appear to have assailed both Ryder J and Baker J in this case. Speaking for my own part, and based on my comparatively recent experience sitting in these cases, both in the Court of Protection and in the Family Division, the listing difficulties described by Baker J have, unhappily, become far too frequent for judicial comfort. But in the circumstances, and in common with Arden LJ, I would refuse permission on this ground.

The fourth ground of appeal, set in paragraphs 9 to 11 of the grounds, relates to what is said to be the illegality of any placement at Z Road, there being, it is said by Ms Bretherton, non-compliance with the relevant regulatory regime involving the commission of a criminal offence in any placement at that location. Again, I confess to some scepticism as to whether there is at the end of the day any real substance in this point, but again, as it seems to me, it would be desirable for the matter to be considered by the Court of Appeal. I would therefore propose to give permission, but here again under rule 173(1)(b).

The final ground of appeal, set out in paragraph 12 of the grounds, alleges a breach of Article 8. I was initially very sceptical indeed as to whether this added anything to the arguments based upon Article 5, my scepticism deriving from the provisional view that if Ms Bretherton succeeded on her arguments under Article 5 there would be no need for her to pursue arguments under Article 8, whereas conversely my provisional feeling was that if her arguments under Article 5 failed she was exceedingly unlikely to succeed on corresponding arguments under Article 8. It may be on reflection that that was an unduly pessimistic appraisal of Ms Bretherton's submissions, but I remain unpersuaded that there is a real prospect of success in relation to this ground. But again it seems to me that there may be considerable advantage in this court considering the Article 8 point so as to be in a position to give reasonably comprehensive guidance to the profession and to the judges in the context of these exceptionally difficult deprivation of liberty cases. Accordingly, for my part I would give permission to appeal on this point, but again under rule 173(1)(b).

The indication which had previously been given by the parties to the court was that the appeal, were permission to be granted, would need to occupy the time of the court for some two to two-and-a-half days. I do not, with all respect to those who may be of that opinion, share that view. There is, it seems to me, the most pressing need for this appeal to be listed as soon as possible. Bearing in mind the history of forensic difficulties which have assailed this particular case in the past, it is unthinkable that the ten-day hearing fixed for 19 July 2010 should be prejudiced by anything that happens in this court. Moreover and in any event, it seems to me that the arguments in relation to the matters for which permission has been given can be dealt with fairly and justly in the course of a one-day hearing. Counsel will of course have provided in advance skeleton arguments and bundles of authorities and, with the assistance of that material as well as oral submissions, the appeal can, I am confident, be fully accommodated without undue pressure or any feeling of injustice if the hearing is listed for one day.

In that context I add this observation. There are a number of parties in this litigation. In relation to the matters which are going to be before this court it seems to me that those parties will essentially fall into two camps and only two camps. I therefore urge careful consideration by all involved when deciding which parties need to be represented and which not. It may well be the kind of case in which some of the parties could appropriately – and if they could appropriately then it seems to me they should -- adopt the stance of putting in written submissions supportive of or supplementary to the similar submissions of the main protagonists, but not necessarily appearing before the court.

There is one final matter and it is this: I mentioned that, as it happens, the case is listed for review before Baker J in two days’ time on 6 May 2010. It is of course entirely a matter for that judge to decide what, if any, directions he gives at that hearing with a view to ensuring that the final hearing fixed for 19 July 2010 is not for some reason rendered abortive. In that context, although as I stress it is entirely a matter for him, Baker J may wish to consider the desirability of giving directions later this week so as to ensure that if this court were in the event to allow the appeal on the Winterwerp point, he will have all the materials he needs, whether by way of expert reports or other evidence, to enable a proper decision on that point to be made at the hearing in July. I would be very concerned indeed to think that the inevitable delay which is going to be caused by the hearing of this appeal should trickle through and in any way prejudice the hearing fixed for July, the prejudice being the possibility of the hearing fixed for July being anything other than a final hearing dealing finally with all the matters in issue in the proceedings. But I emphasise that the point having now been brought for his consideration to Baker J’s attention, it is of course entirely a matter for him to give such directions, if any, at the forthcoming review hearing as, having had the assistance of submissions of counsel, he thinks appropriate.

I agree. It seems to me that permission to appeal should be given on the basis that there is a real prospect of success in relation to what my Lord has called the Winterwerp point. As to the other three points, the points ought to be raised, other than what one might call the speed point. I have significantly more doubts as to the prospects of those being arguable, but I feel the force of his point that it is desirable, particularly as it is going to be mounted anyway, that guidance may be given in relation to those points so far as other cases are concerned.

I echo my Lord's view that it should be possible to deal with this appeal within one day, particularly if counsel bears in mind the fact that there is only one day and prepares both their written and oral submissions accordingly.

It would also obviously be desirable to have minimum representation simply from the point of view of costs. It would also be sensible, although it is, as my Lord has rightly emphasised, a matter for Baker J and for him alone. It may well, nonetheless, be desirable to consider whether to give direction which proceeds on the assumption -- which is no more than a possibility of course at the moment -- that this court may take a different view on the Winterwerp point from that taken by him. I emphasise for the benefit of the parties and to be fair on the judge, as my Lord has done, that his view on the Winterwerp point may well be upheld. All we are saying at this stage is that there is an arguable case for saying that it was not right, in the course of him dealing with the Winterwerp point and what, for my part at any rate, appears to me to be an exceptionally conscientious and careful judgment.