A Local Authority v ED & Ors

These proceedings are brought under the Mental Capacity Act 2005, hereinafter referred to as ‘the Act’, in the Court of Protection. The subject of them is ED, the First Respondent, a young woman in her early 30’s. She has a learning disability, which qualifies her to become a person defined as ‘P’ within Rule 6 of the Court of Protection Rules 2007. She has since 15^th January 2008 been represented in these proceedings by the Official Solicitor.

Does she have litigation capacity?

Does she have capacity to make decisions as to:

If the answer to any of the above is ‘no’, what are her best interests in respect of each?

Should there be a protocol governing the enquiries to be made, (which could be used in the investigation by the police/Local Authority and/or Official Solicitor if in post), of purported allegations made by her as to, for example, physical assaults upon her? If yes, what should be the operative terms and conditions of such a protocol?

On 8^th February 2013, at an earlier stage of these proceedings, I gave a judgment setting out a considerable part of the background. I shall not repeat it, nor, in this judgment, go into extensive detail either about the past, or the resolution of those issues, for I have given permission for my latest order determining all of those issues to be published.

As long ago as the late Autumn of 2007 these same parties were involved in litigation concerning ED. In the course of the next three years many statements and expert reports were filed, leading ultimately to various declarations and orders being made as to the best interests of ED in relation to, amongst other issues, where she should reside and contact with her family. The relevant order is dated 22^nd November 2010 and it effectively stayed the proceedings for a period of 12 months, although liberty to apply for permission to restore the proceedings, if supported by evidence, was permitted.

The parents of ED duly made such an application on 10^th November 2011, seeking, amongst other things, that ED return to their family home. Permission was granted although, as far as I can detect, there was limited evidence before the Court in the form of witness statements from each of ED’s parents. In reality, the Order granting such permission proved to be an ‘open-sesame’ for the re-litigation of a great range of issues across the board. In addition, the parents raised a further issue in stark form, namely: whether or not ED’s pubic hair should be removed for cultural/religious reasons.

In September 2012, Mr. Justice Coleridge gave further directions, and on 18^th December 2012, Mr. Justice Hedley likewise. By the time the case came before me in February 2013 (listed as a final hearing) the quantity of paper generated in this phase of the proceedings can only be described as inordinate. A brief glance at the index indicates that there have been over 200 pages of preliminary documents (including position statements of the Official Solicitor on behalf of ED, and the other parties). There have been approximately 250 pages (leaving aside the orders generated at the conclusion of this hearing) of applications and orders.

There have been 740 pages of witness statements filed. Just short of 300 pages of expert evidence, including evidence from an independent social worker, a clinical psychologist, and a consultant psychiatrist, have been filed. There are 274 pages of review meetings, weekly reports from the residential home, Mental Capacity assessments etc. Police disclosure runs to almost 160 pages.

The case has taken up much judicial time, including the time taken to consider, and then dismiss, an appeal to the Court of Appeal from one of my earlier Orders by the parents.

This case was set down for hearing commencing 1^st October 2013 for a period of 10 days. It had already occupied the best part of five days in February this year. That hearing was (in part) de-railed by the late provision by the relevant Police Force, of material relating to members of ED’s family. Limited evidence was given in the course of that five days, leading to my interim judgment. However, it could not proceed to a conclusion as the parties needed time to reflect on the material, and their positions in relation to it, and it became necessary to instruct an expert into the religious/cultural reasons for the shaving of a moslem woman’s pubic hair. I record in passing that the expert evidence obtained (which was unchallenged by any party) was that, whilst there was a duty to remove such hair, (both for religious and cultural reasons) there is an exemption for those incapacitated such as ED. Returning to the subject of the current 10 day listing before me, there were a number of reasons for this apparently luxurious time estimate, including the great morass of paper, the anticipated number of witnesses, the fact that a number of the witnesses required interpreters, submissions and to take account of judicial reading time and judgment writing time.

At a Directions Hearing on 16^th August 2013, the Court was informed that the parents no longer sought that ED be returned to live in the family home. No explanation for this volte-face was then provided. Instead, the parents sought to re-focus the case by requesting that at least five alternative potential residential homes near to the family home be considered. I permitted them to put forward two, and the documents filed subsequently cast very considerable doubt on the suitability of either. Neither of the two put forward amounted to more than prospectuses for the possible future establishment of such an alternative residential home for ED.

Having spent two days reading carefully into the current material and the background, it was with some surprise that I was notified late on Thursday 3^rd October 2013 that, when the case came before me on Friday 4^th October, it was more likely than not that the parents would be agreeing to the Orders which I have ultimately made and permitted to be published.

In the course of exchanges with counsel for the parents, I required that I be informed of what factors in particular had changed the mind of the parents in the summer of this year, such that they abandoned their main request (namely the return of ED to their home); and what led them, in more recent times, to agree the Local Authority proposals (supported as they were in essence by the Official Solicitor on behalf of ED). The only clue provided to me on this subject appears in a recital at the foot of page one of the main Order and reads as follows:

“Mr. D and Mrs. D no longer seeking a declaration that it is in ED’s best interests to reside at the family home, to reside at an alternative placement or to have staying contact at the family home, because Mr. D and Mrs. D acknowledge that ED needs to be cared for by people with BSL, that an alternative placement closer to the family home is not currently available, but that the Local Authority will keep the option of such a placement under regular review, as well as arrangements for contact between ED and her family” [BSL equals British Sign Language].

I emphasised to Miss Hewson (Counsel for the parents) that I was NOT seeking to go behind the veil of legal professional privilege in requiring explanations. It is difficult for me to understand how it comes about, having taken full account of the content of that recital, what is said to have led to the parents change of view. Both parents filed statements on 21^st August and on 26^th September 2013. The August statements do not make any such concession. Indeed it has been a clear part of each parent’s case throughout that the family communications skills were more than adequate to the job of caring full-time for ED, let alone during staying contact and that remained so until a late admission to the contrary in the statement of 26^th September, and then only to the effect that they (the parents) do not speak BSL.

I thus remain utterly baffled by the course this litigation has taken, and perplexed by this lack of clarity in their case.

Obtaining a 10 day slot of a High Court Judge’s time is not easy, for there are many competing cases of equal if not greater urgency than this one.

I requested information as to the costs incurred by each party since November 2011. The Local Authority’s costs amounted to approximately £138,000 since October 2011, the costs on the parents to £82,000, and the costs of the Official Solicitor to approximately £130,000. This is an astonishing sum of money to spend on one case. ED, Mr. D and Mrs. D have all had their legal expenses met from public funds. Particularly when one considers the nature of the case for the parents, and that the ultimate resolution of this phase of the proceedings (now, I emphasise, ended, save as to the issue of publication) is that the parents have, ultimately with their own “consent,” agreed to Orders which dismiss any hope of ED coming to live with them and a significant reduction in her contact to them.