Newcastle City Council v LM

This is an application in the Court of Protection relating to a young woman, LM, who is 22 years old. The applicant is Newcastle City Council. LM is the respondent represented by her litigation friend, the Official Solicitor. Before me, the applicant is represented by Mr Justin Gray and LM by Mr Brett Davies. I am grateful to them both for their helpful submissions in writing and orally.

LM is of Bangladeshi heritage. She grew up in the Newcastle area and lived there until she was 16. I am told she considers herself to be a “Geordie”, a point which is of some relevance to the issue of jurisdiction that I will need to determine. LM is currently in a placement in Scotland subject to interim orders from this court which, among other matters, deprive her of her liberty. The application was originally brought in 2019, just after LM’s eighteenth birthday. As I explain in greater detail below, there has been significant delay in bringing this matter to a final hearing and throughout the hearings to date the court has proceeded on the basis of interim declarations concerning LM’s capacity and the question of her habitual residence.

The matter has come before me for a final hearing and I am now being asked:

There is a good deal of agreement at the Bar regarding these issues. In the light of the written evidence that has been filed and the oral evidence that I have heard, the only point of significant dispute remaining between the parties relates to the question of LM’s capacity to make decisions regarding her use of the internet and social media. However, there are other points that I need to resolve in this judgment, not least questions that arise concerning this court’s continuing jurisdiction to make orders in relation to LM. Before I do so, I will set out some of the background to this case.

LM’s mother has a significant learning disability and this impacted on her ability to care for her children, including LM. For the purposes of this judgment, I do not need to go into this in any detail, save to say that LM clearly had a very difficult childhood that required professional intervention at various points. In February 2016, the local authority obtained a forced marriage protection order in relation to LM and, later that year, in August 2016, after LM had alleged that she had been sexually abused, an interim care order was granted to the applicant local authority. Initially, LM remained in her mother’s care, but later that year she was received into local authority foster care and a final care order was made in December 2016.

LM required a degree of care and attention beyond what could be offered in the foster placement and, in October 2017, she moved to a children’s home in the Newcastle area. However, that placement too provided to be unsuitable and, in June 2018, the local authority moved LM to a placement in Scotland. At the time, this was not seen as a long-term placement and no application was made by the local authority under the Children Act 1989 for an order permitting LM to live in Scotland. However, as events have transpired, LM has continued to live in that placement and continues to live there to this day.

The placement has clearly been extremely successful. LM is settled and happy there, and it is clear from the evidence that I have seen that there have been significant improvements in her presentation over the years she has been there. At one point, it appeared that the placement might need to cease upon LM obtaining the age of 21, but I understand it is now agreed that this can be a long-term placement for LM.

LM is the only person living in the placement, which is in a rural area within Scotland’s central belt. She is not free to leave the placement and there are two staff members present on the premises at all times, although arrangements have been considered to permit LM limited periods of time alone at the property subject to remote monitoring. LM is accompanied on trips into the community by one or two staff members and supervised whilst in the placement. It is clear that LM is subject to control and supervision such that her placement amounts to a deprivation of her liberty.

Following LM’s eighteenth birthday in 2019, the local authority applied to the Court of Protection for orders and declarations relating to her capacity and best interests. The matter initially came before HHJ Moir in November 2019 and the judge made interim declarations that LM lacked capacity to make decisions regarding:

The matter has come back before the Court of Protection regularly since 2019, although no final hearing has taken place, the Covid pandemic being one factor in the delay. Further orders containing similar interim declarations and orders and a further interim declaration that LM lacked capacity to manage her property and affairs were made by HHJ Moir in December 2019 and again in April 2020, July 2020, September 2020, January 2021, July 2021, November 2021 and March 2022. On each of these occasions, the authorisation of the deprivation of liberty contained in the order was expressed to last until “further order”.

The matter was listed for a hearing before Gwynneth Knowles J in November 2022. In fact, two hearings took place that month before Knowles J, on 8 and 30 November. Both of the orders made by Knowles J at those hearings recite that:

Knowles J determined that updated capacity evidence was now required and directions were given for the instruction of Dr Camden-Smith, who is a forensic learning disability consultant and lead for learning disability in autism forensic services at Oxford Health NHS Foundation Trust, to provide a single joint expert report. The matter was initially listed for a final hearing before Knowles J in May 2023.

In March 2023, the matter was reallocated to me sitting as a Tier 3 judge of the Court of Protection. Almost immediately, it became apparent that the original listing could not be maintained following delays in the preparation of Dr Camden-Smith’s report. I agreed to the final hearing being adjourned until July 2023. Unfortunately, that fixture too had to be vacated, as I fell ill shortly before the start of the case and the matter was relisted to be heard before me on 15 and 16 November.

I should record that neither of the orders that were made by Knowles J in November 2022 nor the directions orders that I have made subsequently expressly refer to the continued authorisation of LM's placement or the deprivation of liberty. However, both Knowles J and I have been provided with updating evidence, including recent statements from Ashley Heir, LM’s social worker, and from Victoria Burrows, LM’s solicitor. LM has been represented at each of those hearings by her litigation friend, the Official Solicitor.

For my part, I have been satisfied throughout this case that the continuation of LM’s placement remained in her best interests pending a final hearing and no party has sought to suggest otherwise. Nonetheless, I recognise that the formal authority for her deprivation of liberty has continued to be the orders of HHJ Moir, which were expressed to continue until further order and have not been superseded by subsequent orders. Whilst I am satisfied that LM’s placement and the deprivation of liberty have been regularly considered by the court pending this final hearing and are lawful, I recognise that good practice would be for the deprivation of liberty to be authorised specifically for a fixed period in each order.

The Scottish Central Authority has been invited to participate in these proceedings, but does not wish to do so. In January 2023, the orders of the Court of Protection dated 5 November 2019, 18 December 2019, 21 April 2020, 2 July 2020, 24 September 2020, 14 January 2021, 5 July 2021, 2 November 2021 and 30 November 2022 (the latter being the order of Knowles J) were recognised by the Scottish Sheriff’s Court pursuant to Sch.3 of the Adults with Incapacity (Scotland) Act 2000.

LM has a complex diagnosis. This is set out by Dr Camden-Smith in her report dated 19 July 2023, and she identifies three separate elements to it.

First, as a result of substantial and sustained childhood trauma in multiple settings over many years, LM has been diagnosed with complex post-traumatic stress disorder or developmental trauma disorder, which Dr Camden-Smith says is best understood as complex PTSD with onset during the development period. Dr Camden-Smith explained that LM has previously been diagnosed with attachment disorder, but that this is a childhood diagnosis that does not persist into adulthood, although the underlying condition may do so.

Dr Camden-Smith makes the point that it is worth distinguishing developmental trauma disorder from complex PTSD because the effects of trauma are much more profound on a developing brain than on an adult brain, and Dr Camden-Smith’s report explains the impact of this disorder on LM as follows:

The second element of LM’s condition relates to her cognitive function. Although Dr Camden-Smith considers that LM does not meet the diagnostic criteria for formal diagnosis of intellectual disability, her full-scale IQ of 73 is in the extremely low range and Dr Camden-Smith makes the point that LM’s low level of cognitive function is a further matter that needs to be considered in the context of this case.

Thirdly, LM has been diagnosed with a language disorder. Her use of and understanding of language is significantly impaired and is lower than would be expected of someone with even her low verbal skills and cognitive abilities. She has particular difficulty with using her short-term memory to manipulate information and she benefits from writing things down to assist her in using the information.

Dr Camden-Smith summarises LM’s position as follows:

Before turning to the substantive issues that I have to decide, I must first consider the preliminary issue of the jurisdiction of the Court of Protection to make orders and declarations concerning LM. This arises because LM is subject to a placement in Scotland and indeed has been for some time now.

The cross-border jurisdiction of the Court of Protection is to be found in Sch.3 of the Mental Capacity Act 2005. Section 63 of the MCA 2005 explains that Sch.3:

It should be noted that, although the United Kingdom has signed the 2000 Hague Convention on the International Protection of Adults (“the 2000 Convention”), it has been ratified and brought into force only in relation to Scotland. The 2000 Convention is not yet in force in England and Wales, and that means several of the provisions of Sch.3 MCA 2005 are themselves not in force (see para.35 of Sch.3).

One of the provisions that is in force is para.7 of Sch.3 MCA 2005, which explains the Court of Protection’s jurisdiction. This provides that:

Thus, it can be seen that the Court of Protection’s jurisdiction to make declarations under s.15 MCA 2005 and decisions and orders under s.16 in welfare matters (described as its “full, original jurisdiction” - see Re MN [2010] EWHC 1926 (Fam) per Hedley J at [20]) is largely confined to cases where P is habitually resident in England and Wales. Presence in the jurisdiction can give rise to a limited protective jurisdiction (under MCA 2005 Sch.3 paras 7(c) and (d)), but it is not relevant in the present case.

I must, therefore, begin by considering where LM is habitually resident. Habitual residence is not defined either in the MCA 2005 or in the 2000 Convention. However, it is now settled law that it is the same overarching concept as applied in other family law instruments, such as the 1996 Hague Child Protection Convention (“the 1996 Convention”) - see An English Local Authority v SW per Moylan J [2013] EWCOP 43.

In The Health Service Executive of Ireland v IM & Ors. [2020] EWCOP 51, Knowles J extracted the following principles from the authorities:

In the case of Aberdeenshire Council v SF [2023] EWCOP 28 at [15], Poole J added the following comment to that summary:

As identified above, the conditions and reasons for a person’s stay in a specific jurisdiction are relevant to the question of habitually residence. This may be particularly so where those conditions amount to a deprivation of liberty. In the case of HSE of Ireland v PA & Ors. [2015] EWCOP 38, Baker J, as he then was, was considering applications in relation to a number of young adults who were being held in secure mental health placements in England and Wales pursuant to orders of the Irish High Court. The Irish court’s orders had proceeded on the basis that, notwithstanding that the adults had been present in England and Wales for some period of time (in one case nearly four years) they remained habitually resident in Ireland. Baker J held at [53] and [54] of his judgment:

On the other hand, in the case of Re DB [2016] EWCOP 30, Baker J held that two Scottish men who had been held in a specialist hospital in England for 7.5 years and 6 years respectively were habitually resident in England and Wales. However, I note that, in that case, their detention was authorised, first, under the Mental Health Act 1983 and subsequently by standard authorisations made under the MCA 2005 (that is to say, pursuant to an English statute).

In LM’s case, both counsel argued that LM remains habitually resident in England and Wales and I have been directed to the following features of this case.

Against this can be balanced the fact that she is registered with health services in Scotland. She started a college course in Scotland in May 2022 and, since October 2022, I understand she has been attending an educational course one day a week and, since January 2023, for two days a week. There is no doubt that LM is settled and making good progress at her current placement. So far as time is concerned, she has now been living in Scotland for nearly five and a half years.

I have little doubt that, at the outset of these proceedings, LM was habitually resident in England and Wales. At that time, she had been in Scotland for only around 15 months and the placement was not considered to be necessarily a long-term option. The restrictions that existed on her liberty meant that she had little chance to achieve any stability or integration and, although HHJ Moir’s initial order contained what was expressed as an interim declaration as to LM’s habitual residence as at that date, I am satisfied that she was habitually resident in England and Wales when these proceedings began and that the Court of Protection definitely had jurisdiction as at that date. However, these proceedings have now been on foot for four years and, though I am now asked to make a final order, I must first consider afresh the question of habitual residence.

There is weighty authority that the doctrine of perpetuatio fori does not apply to cross-border incapacity cases. In Re O (Court of Protection: Jurisdiction) [2014] (Fam) 197 at [21] (another case involving a person moving from England to Scotland), Sir James Munby held, albeit obiter dicta, that the principle of perpetuatio fori has no application in this context. The President’s comments were derived from a consideration of the 2000 Convention and the explanatory report thereto. This report makes clear that:

The 1996 Convention is expressed in very similar terms to the 2000 Convention and has been the subject of a recent decision by the Court of Appeal in the case of London Borough of Hackney v P [2023] EWCA Civ 1213. There, the court recognised that the doctrine of perpetuatio fori did not apply in cases to which the 1996 Convention applied and held that the court, in order to make orders, must retain jurisdiction at the date of the final substantive hearing.

Given the similarities between the 1996 Convention and the 2000 Convention, I am satisfied that the same analysis must apply to cases in which the 2000 Convention applies. Of course, the 2000 Convention is not yet in force in England and Wales. However, given (a) the clear and close relationship between the 2000 Convention and those aspects of Sch.3 MCA 2005 which are currently in force and (b) the comments of Sir James Munby in Re
O, I am satisfied that there is no scope for the doctrine of perpetuatio fori to apply in Sch.3 MCA 2005 cases, even in circumstances where the Hague Convention is not yet in force. Therefore, in order to continue to exercise jurisdiction in this case, I have to be satisfied that LM remains habitually resident in England and Wales.

Taking all matters into account, I have reached the conclusion that she remains habitually resident here. LM has clearly been living in Scotland for a significant period of time and there is no doubt that she is settled in her placement. Nonetheless, I need to consider the conditions and reasons for her stay and these, in my view, point towards her remaining habitually resident in England and Wales. She was initially placed in Scotland because there was no suitable placement closer to her home in Newcastle and, in my view, that remains her principal place of integration and social and family environment. She has been deprived of her liberty throughout her time in Scotland, which means her experience there is very different to an individual who is not subject to those restrictions. Most importantly, and a factor which I consider has magnetic importance in this case, her stay has, since the outset of these proceedings, been constantly subject to interim orders of the Court of Protection authorising the placement and the terms of the restrictions on her liberty.

Those interim orders were only ever intended to govern the position until a final hearing in this case, but their interim nature emphasises the inherently precarious nature of LM’s placement absent a final conclusion to these proceedings.

In my judgment, whilst this matter is not on all fours with the position in Re PA, the fact that LM’s living arrangements have been subject to review and approval by the Court of Protection on the basis of interim orders throughout the continuation of these proceedings points towards her habitual residence remaining in England and Wales, and I note that the Scottish courts have been willing to recognise and give effect to those orders. I, therefore, agree with the submission that has been made to me by Mr Davies that the interim nature of the orders that have thus far been made authorising her placement in Scotland, deprives LM’s residence there of the necessary degree of stability which might otherwise have led to a change in her habitual residence.

I am fortified in this conclusion by other submissions that have been made to me by the parties. Mr Gray has pointed me to the decision of Hedley J made in a children context regarding interim placements. In Re H (Residence Order: Placement out of the Jurisdiction) [2004] EWHC 3243 (Fam) at [9], the judge held:

Similarly Mr Davies for the Official Solicitor has referred me to the concerns raised by Peel J in the case of H v R [2022] 2 FLR 1301 (and recognised by the Court of Appeal in Hackney at [89]) that a party might seek to delay proceedings or seek to take advantage of delay to procure a jurisdictional advantage. Therefore, as the Court of Appeal identified in Hackney at [123], there should normally be substantial grounds in order to justify the court reconsidering the issue of jurisdiction after it has decided it.

The case of Hackney also identified that, in cases where there is a change in habitual residence involving a move to a non-contracting state, although the doctrine of perpetuatio fori does not apply, the courts of England and Wales may nonetheless be able to retain jurisdiction by virtue of their domestic law. Given that the 2000 Convention does not apply at all in the present case, I therefore explored with counsel whether (if I concluded that there had been a change of habitual residence) there was any applicable domestic law which could be used in this case to make orders regarding LM. The MCA 2005 does not assist in this regard as the Court of Protection’s jurisdiction is limited by Sch.3 para 7 to cases where the person is habitually resident in England and Wales. Mr Davies identified the inherent jurisdiction as being a possible route to making such orders, as this can be used to protect the interests of vulnerable British nationals in certain circumstances. However, I do not consider that it would be appropriate to use the inherent jurisdiction in a case where, assuming there had been a change in her habitual residence, LM would be subject to the protective jurisdiction of the courts of Scotland, and indeed it is not clear that the inherent jurisdiction can be used to authorise a deprivation of liberty of an incapacitous adult at all (see the comments of Cobb J in Wakefield MDC v DN [2019] EWHC 2306 (Fam) at [48]). Ultimately, this issue does not arise in the present case given my finding that LM remains habitually resident in England and Wales.

For the reasons that I have set out above, I am satisfied that LM remains habitually resident in England and Wales. However, I recognise that changes in her circumstances may alter this position. In my view the making of a final order in this case which will not be temporary and not be subject to an ongoing review is likely to tip the scales such that LM will then acquire habitual residence in Scotland fairly rapidly thereafter. Even though that final order will be time limited, it will be a final order. The current proceedings will be at an end and my order will not be subject to any further automatic review by the Court of Protection. Assuming that such an order does indeed cause a shift in LM’s habitual residence then any future application to approve changes to the restrictions on her liberty, or to extend the duration of the authorisation will lie to the courts of Scotland.

Having regard to the decision of the Court of Appeal in the Hackney case (in the context of the 1996 Convention) I would make the following observations on the issue of jurisdiction for future cases where issues arise under MCA 2005 Sch.3:

Having established that this court has jurisdiction to deal with the substantive issues, I now turn to the question of LM’s capacity. The statutory test for capacity is set out at s.2 MCA 2005:

The definition of an inability to make a decision is to be found at s.3 MCA 2005:

The approach that should be taken to these questions was made clear by the Supreme Court in the case of A Local Authority v JB [2021] UKSC 52. The first question to be considered is whether P is unable to make a decision for him or herself in relation to the matter. If so, the second question addresses the issue of whether there is a causative nexus between that inability and an impairment of, or disturbance in, the function of the mind or brain of P.

There is a presumption of capacity under s.1(2) MCA 2005 and s.1(4) provides also that a person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. Where a person lacks capacity, then any decision taken on their behalf under the MCA 2005 must be made in their best interest having regard to the factors set out in s.4 MCA 2005.

Capacity under the MCA 2005 is time and decision specific, and the relevant information that a person must be able to understand, use and weigh varies from decision to decision. The information relevant to specific types of decision have been set out in a number of different cases. There is no dispute about the applicable law at the Bar and in this judgment I will set out in detail the law concerning relevant information only in relation those matters where there is a disputed issue concerning LM’s capacity that I need to decide.

The relevant law in relation to capacity to conduct litigation, can be found in the decisions of the Court of Appeal in the pre-MCA 2005 cases of Masterman-Lister v Brutton and Co [2003] 3 All ER 162 and Bailey v Warren [2006] EWCA Civ 51 and in the judgment of the Supreme Court in Dunhill v Burgin [2014] UKSC 18. Capacity to engage in sexual relations was considered by the Supreme Court in Re JB, which I have already referred to.

Capacity to make decisions in relation to care and support needs, to make decisions in relation to contact with others and to make decisions in relation to residence were all considered by Theis J in LBX v K [2013] EWHC 3230 (Fam). I do not need to say anything about the first two of these – that is to say care and support needs and contact. As to capacity to determine residence, Theis J held at [43] that the relevant considerations are:

Capacity to manage property and affairs was considered in ABC v XYZ [2013] EWHC 2400 COP by Hedley J and in the case of Masterman-Lister that I have already referred to.

Capacity to make decisions in relation to internet use was considered by Cobb J in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 at [28] and [29], where he held:

Counsel are agreed that these are the relevant legal tests.

In assessing LM’s capacity, I have received a variety of evidence. I have a number of capacity assessments from 2019 prepared by Katie Thompson, LM’s then social worker. These looked at each area of decision-making and concluded that LM had capacity to engage in sexual relations, but lacked capacity in all other relevant regards. More recently, I have an assessment dated 19 July 2023 and an addendum report of 27 September 2023 from Dr Camden-Smith regarding LM’s capacity. I have heard oral evidence from Dr Camden-Smith. I also have statements from Ashley Heir, LM’s social worker, from Michelle Tait, LM’s placement manager, and from Victoria Burrows, LM’s solicitor. Ashley Heir gave oral evidence and was cross-examined by Mr Davies for LM.

Dr Camden-Smith was not asked to report on LM’s capacity to engage in sexual relations. LM had previously been assessed as having such capacity by Ms Thompson and neither party considered that there was any evidence to suggest that this capacity had changed. Dr Camden-Smith was asked to consider the remaining six issues on which capacity is placed before the court. She originally considered that LM had capacity to make decisions about residence and about internet and social media use, but lacked capacity in other regards. Following further questions posed to her by the parties, Dr Camden-Smith in her addendum report changed her view regarding LM’s capacity for internet and social media use, but remained of the view that LM had capacity to make decisions about her residence.

Both parties take issue with Dr Camden-Smith’s decisions regarding residence, taking the view that she has wrongly interpreted the test in LBX v K. For LM, Mr Davies also challenges Dr Camden-Smith’s most recent conclusion regarding internet and social media use. The remainder of Dr Camden-Smith’s conclusions are accepted by the parties, and I agree with them. I will turn now to deal with the issues in dispute.

I can deal quite briefly with the issue of residence. In her report of 19 July 2023, Dr Camden-Smith concluded that LM had capacity to make decisions about her residence. However, this was subject to a qualification that this capacity existed “provided that she is offered a choice of residences that meet her care needs.” Although Dr Camden-Smith stuck to her view on this point in her addendum report of 27 September, both Mr Gray and Mr Davies have argued that this qualification imposed by Dr Camden-Smith misunderstands the test set out by Theis J in LBX v K, which requires inter alia that the relevant information that the person should be able to understand, use and weigh in the case of residence includes what sort of care he or she would receive in each placement in broad terms. Both counsel argued that Dr Camden-Smith’s qualification means that LM fails to meet this test.

In cross-examination, Dr Camden-Smith accepted that LM was not able to understand the need for support and accepted that she would only have capacity to make a decision about residence if she was presented with two options, both of which fulfilled her care needs. Dr Camden-Smith accepted that, if the test required LM to be able to understand, use and weigh information about the suitability of placements to meet her care needs, then she would not meet this test. I agree with counsel that, having regard to the test outlined by Theis J in LBX v K the sort of care that LM would receive in each proposed placement forms part of the relevant information that LM would need to be able to understand, use and weigh in order to have capacity on this issue, and that in the light of Dr Camden-Smith’s concession in her oral evidence, I have concluded that LM lacks capacity to make decisions about her residence.

LM’s capacity to make decisions regarding internet and social media use was more contentious between counsel, and both Dr Camden-Smith and Ms Heir were cross-examined on this issue. Until now, LM has had access to the internet and social media through a desktop computer. She has previously been supervised in her use of this through a mirroring app, but this was discontinued in May of this year and she is not now directly supervised in her use of the computer, although she has a five hour daily limit imposed on that use. She has not hitherto had access to a mobile phone. However, yesterday, with both counsel in agreement, I approved as being in LM’s best interests the provision to her of a smartphone, subject to the internet and social media protocol that has been devised by the local authority, pending my decision on the issue of her capacity on this issue.

It is clear that social media is a fundamentally important part of LM’s life. Given the restrictions that are imposed on her placement, it is her principal means of communicating with the world and finding friendships. Nonetheless, there have been a number of historic concerns regarding LM’s social media use. As her support plan states:

Dr Camden-Smith’s first report followed a three hour meeting with LM. Following that interview, Dr Camden-Smith concluded that LM understood that someone on the internet might pretend to be someone other than who they really are. LM identified that there may be things online which are inappropriate to access and explained to Dr Camden-Smith that photos shared online could then be made more widely available. She also understood that things posted online could upset other people, although Dr Camden-Smith did not think that LM really understood that her previous actions in contacting others had upset them and could have got her into trouble with the police. Nonetheless, overall, Dr Camden-Smith concluded that LM had capacity to use the internet and social media.

There then followed an incident on 9 August 2023. This is detailed in the witness statement of the placement manager, Michelle Tait, of 17 August 2023 and in the fifteenth witness statement of Asheley Heir of the same date. Ms Tait describes what occurred as follows:

The obvious concern raised by this report was that LM was acting in a manner in which intimate pictures of her could be placed online. This incident was discussed with LM the following day with Ms Heir. LM told Ms Heir that it had not happened and, even if it had, she would not tell her. LM also stated “So what if I was naked anyway.” Ms Heir’s evidence continued:

This evidence was provided to Dr Camden-Smith, who revised her opinion on this point, as follows:

Dr Camden-Smith and Ms Heir were both cross-examined about their views by Mr Davies and Mr Gray. Dr Camden-Smith explained that she considered that the incident showed that LM’s actions went beyond making an unwise decision. She considered that LM’s developmental disorder made her unboundaried, leading her to obsessively seek romantic relationships with men and that she would, in the moment, do acts, such as the sharing of pictures, to maintain a relationship. She was concerned that LM, although aware that support was available, would not, because of her condition, use that support and was not learning from her mistakes. Ms Heir too reported that LM can become intensely involved in a relationship after just a few messages, for example, describing herself to Dr Camden-Smith as being engaged to somebody whom she had met online only recently.

I am satisfied that the incident of 9 August 2023 took place as Ms Tait describes it. She was not challenged on her statement and I did not consider that there is any real likelihood that the member of the care team was mistaken about what they heard taking place that evening. I am, therefore, satisfied on the balance of probabilities that, on this occasion, LM placed herself in a position of having private or intimate images of herself being made available to whoever she was in a conversation with and that this posed the risk that those images could be used further. I note also from LM’s discussion with Ms Heir that LM was not able to properly understand the risk to her of sharing such images. She was able to identify that the third party who received those images could themselves be in trouble if they shared those images more widely, but she did not, in the course of that conversation, appear to be able to understand the risks to her of those images being shared.

I accept that this is the only occasion where such sharing has been identified recently, although I note that, since mirroring ceased, it is difficult to monitor LM’s online interactions in any event. I also accept there have been occasions where LM has asked the staff for support in relation to online interactions, and Ms Tait gives an example in her witness statement. Nonetheless, I am concerned that LM’s conversation with Ms Heir following the 9 August incident demonstrates that she is not able to understand, use or weigh information about the first of the points identified by Cobb’s J in Re A.

There are other concerns too regarding LM’s actions in the past, both in relation to the terms in which she has expressed herself and the intensity and frequency of her responses to others, that means she may not fully understand that her posts may be considered offensive by others or may upset other people. For LM, Mr Davies described the issue of LM’s capacity on this issue as finely balanced, and indeed the Official Solicitor does not go so far as to assert a positive case that LM has capacity on this issue, but Mr Davies questions whether the presumption of capacity has been discharged in this case.

I agree with him that the issue is not straightforward. Since she has been in the placement, there has been a significant improvement in LM’s presentation and it is clear that her ability to understand information in relation to use of the internet and social media is improving. Nonetheless, overall and taking all of the evidence into account, I have concluded that LM currently lacks capacity in relation to internet and social media use. Whilst I recognise that the event of 9 August is the only significant incident that has been identified since mirroring ceased nearly six months ago, I do consider it to be of importance; both the fact that it happened and LM’s reaction to it raise doubts as to her capacity in this regard.

I accept Dr Camden-Smith’s evidence that LM’s response went beyond impetuousness on her behalf and was, in these circumstances, a facet of her underlying conditions. The other concerns about LM’s past online interactions lend further support to my conclusion that LM is not currently able to understand, use and weigh aspects of the relevant information in this field, specifically the risk that pictures shared by her could be shared more widely and also that placing offensive material online could upset or offend others.

I fully recognise that my decision on this issue will be particularly disappointing for LM who feels that she is being held to a different standard to her capacitous peers. However, as I will explain in a moment, I am satisfied that it is nonetheless in her best interests to be given access to a smartphone in accordance with the protocol devised by the local authority, and this will, I consider, assist her in her use of social media and enable her to continue to learn and build her skills in this regard. Moreover, it was clear from Dr Camden-Smith’s evidence that she considers that this is an area where LM’s capacity may well improve in the future and, although I have found today that LM currently lacks capacity in this regard, this is clearly an issue which needs to be kept under careful review.

I will, therefore, make the following declarations.

The local authority has prepared an updated care plan for LM dated 8 June 2023. This should be read alongside an updated protocol for LM’s contact with others, also dated June 2023, and an internet, social media and mobile phone support plan dated November 2023. The Official Solicitor agrees that these plans and protocols are in LM’s best interests. I too agree. They have clearly been carefully considered and I will approve them as being in LM’s best interests. I will, therefore, make the declarations and orders sought by the local authority. These will be for a period of 12 months. However, these are final orders and will conclude the current proceedings. Any application for further orders will require a fresh application before an appropriate court.

Given the findings I have made regarding habitual residence, it seems to me to be likely that LM will gain habitual residence in Scotland within a short period of time following the conclusion of this case and any further proceedings will need to be brought before the Scottish courts under the Adults with Incapacity (Scotland) Act 2000.

I need to add a few words about LM’s property and affairs. These consist solely of benefit payments and are managed on LM’s behalf by the local authority as her appointee. I am told that LM now has a balance of around £12,000 in savings. This seems to me to be quite a large sum to be held under an appointeeship and I have considered whether a deputyship would now be more appropriate.

However, there are two factors which have meant that I have decided not to make such an order today. Firstly, I am told that the local authority is considering whether there should be an increase in LM’s contribution to care fees and, if this is implemented, there may be a corresponding reduction in her savings. Secondly, I am conscious that the likely effect of my making a final order is that LM may soon become habitually resident in Scotland. If she does so, although the English Court of Protection will have concurrent jurisdiction with the Scottish courts over any property of LM’s that is situated in England and Wales (as LM’s savings are), it may be more appropriate that future orders in relation to these matters are dealt with by the Scottish court alongside issues of LM’s welfare. I will, therefore, simply deal with these matters today by recording in my order that the local authority should keep these issues under review. My order will also record that it is in LM’s best interests to be supported to take steps to develop an understanding of managing her own benefits, regular payments and other aspects of her finances when she feels able to do so.

I should conclude this judgment by saying a few words about LM. She was present in court throughout the hearing yesterday and it is clear that she has made great progress in her current placement. That she has done so is a credit to everyone involved in this case; to the local authority and its social work team; to the dedicated staff at LM’s placement; to those who represent her and, of course, to LM herself. As a result of my judgment, she will now have access to a phone (subject to the support plan that I have approved) and it is clear from Dr Camden-Smith’s evidence that LM’s capacity to make decisions in relation to this and indeed other matters may improve in the future. The declarations and orders that I have made today will clearly need to be reviewed by the appropriate court in due course. LM has my best wishes for the future. That is my judgment.