London Borough of Ealing v KS & Ors

These are proceedings brought under Part 8 of the Civil Procedure Rules by a London Borough (hereinafter referred to as “the applicant”, “the local authority” or “the Borough”). They concern SK who is a protected party within the meaning of the CPR 1998 Part 21, R21.1 (2). SK is represented in these proceedings by the Official Solicitor as her Litigation Friend.

The first defendant is SK’s mother (KS). The second, third and fifth defendants are the sisters of SK, and the daughters of KS.

For the sake of completeness, I should make it clear that the second and third defendants were until recently publicly funded in this litigation. However, because of the extensive overlap between their respective cases and that of their mother, KS, their certificates were withdrawn just prior to the commencement of this hearing. They are accordingly acting in person. I appreciate that they of course feel at a disadvantage in litigation of this seriousness, but I have been vigilant to ensure that their case is properly examined insofar as it both supports, and occasionally may slightly differ from, that of their mother.

The applicant seeks (or in the case of (iv) below at one time sought) declarations that SK lacks capacity to:

The applicant seeks a declaration that SK does not have the capacity to consent to contraception, and that it is in her best interests that contraception be provided, it being lawful, necessary and proportionate, but in the light of the evidence now asks that this issue be adjourned.

A declaration is further sought from me that it is lawful and in the best interests of SK that she be operated upon under general anaesthetic to remove an ovarian cyst. The applicant has for some time attempted to interest the National Health Service Primary Care Trust in this litigation, and to make an application, but they have steadfastly declined to engage, until sending a letter dated 12^th March 2008 (the third day of the hearing) and attending by Dr. L. (Medical Director of the hospital) but without a legal representative on 17^th March. It was initially suggested by the expert obstetric and gynaecological evidence that if I were to make such a declaration, this operation could proceed on 14^th April 2008, and, should I make a declaration in relation to the administration of contraception in the form of an IUD, that could be inserted at the same time. For reasons I shall explain later, the idea of contraception is inimical to SK, and therefore it would be highly likely that issues of the forcible administration of general anaesthesia, and issues of restraint of liberty generally, would arise. At the end of the evidence I was asked to “uncouple” these operations, and adjourn the issue of contraception.

The applicant seeks a further declaration as to the status, if any, of the marriage between SK and Mr. R (her third husband – see below), or rather as to whether or not English law would recognise it as a valid marriage.

The applicant seeks injunctive relief against KS, LU, MHAS, SR and each of them, that they shall be prevented, by themselves or by instructing or encouraging others, from:

In the development of the evidence filed in these proceedings, an issue arose as to whether or not KS was actually the birth mother, of any and if so which, of the second to fifth defendants, or whether she was a step-mother to one or more of them. I shall make a declaration, pursuant to the provisions of Section 55A of the Family Law Act 1986, that she is the biological mother of them all, DNA testing establishing this fact.

Before I consider the issues in any greater detail let me say something of the factual background. On Wednesday 12^th December 2007 Sumner J. heard an interlocutory application in this case. The issue before him, which forms the subject of a 12 page judgment, was whether or not SK should return to the home of her mother for a trial period pending the final hearing which is now before me. Although he also dealt with the proposed instruction of a further expert, I need not refer to that aspect again. In the course of his judgment he set out in summary the background to this case and described it as “complex”. He could not be said to be indulging in hyperbole. There were five full lever-arch files of documents before him. There are eight plus before me. Practice Direction documents exceed 250 pages. The statements of the parties run to over 500 pages. The reports of experts run to approximately 250 pages. The Official Solicitor’s reports run to 120 pages. There is a plethora of surrounding material, from sources including the police, an housing association, general practitioners, psychiatric hospitals, etc.

I do not propose to repeat all of the matters set out in that judgment. It gives a necessary summary, and although in considering various matters at this hearing I shall go beyond his summary, it may, if I may respectfully say so, be relied upon as entirely accurate, and is suggested by me as necessary pre-reading to this judgment.

She was born on 1^st January 1975, and is now 33 according to a great deal of the earlier official documentation available to me, although her sister SR has stated that SK was in fact born earlier in about 1969, thus making her 38. There is no reliable evidence either way to determine this issue. She is the daughter of KS (a fact now established by DNA testing, although at one stage it was reported, by whom it is unclear, that KS was, or might be, her step-mother).

There is disagreement as to how many times her mother KS has been married, and how frequently her father had been married (two, three or four), and it may well be that these multiple marriages are the backdrop to the suggestion of a step-mother relationship referred to in the documentation. It is not just one member of the family who has referred to KS as a “step-mother”, for in SR’s most recent statement she draws together a number of references from the historical documentation showing that a number of authors have suggested (based on information from unspecified family members from time to time) that this was the relationship between KS and the women who now do indeed prove to be her daughters and not her step-daughters. SR in particular is aggrieved by this revelation of genetic identity, for she claims to have been referred to by KS (and others) as a step-daughter, and discriminated against by them accordingly. In the course of KS’s evidence it became clear that she was under the powerful impression that it was SR who had raised the issue of a step-relationship, and who had called her “step-mother”, leading to grave affront and a considerable display of anger on the part of KS when describing her feelings on this subject. SR was equally angry, distressed and tearful when describing her perception of familial discrimination against her. It was unhappy to observe that KS, sitting at the back of the court was, throughout that part of SR’s evidence, laughing at her daughter, and trading with MHAS and LU looks suggestive of collusive derision for SR. Returning to SK, the evidence does not appear to establish that she was discriminated against for this reason, but she certainly has been for others (see below).

SK’s early life in Afghanistan was one of comfort whilst her father was alive, but death, and later war, ravaged the family’s finances, and KS took her children or some of them, (her two sons having either died prior to departure or remaining there) to Pakistan/India, and eventually they came to England, but only after their mother had been here for some time. SK arrived in the United Kingdom probably in 1994. She did not receive a grant of British citizenship until 19^th March 2003.

SK has presented throughout her life as suffering from a learning disability, psychometric testing in recent years establishing a severe degree of such disability, but such a finding is inconsistent with functional tests of her ability (for example an occupational therapy assessment). It seems to me that the applicant would be well-advised, irrespective of the outcome of their application, to arrange further psychological testing for SK, essential underpinning for any programme of education/support they may offer to her in how to approach the thorny issues which surround her future, including her desire for a husband, her desire for a child, and her attitude towards relationships with men in the community in general, to name but three.

She was once said to be suffering from paranoid schizophrenia, although the diagnosis is now schizo-affective disorder which is treated by medication, although she periodically relapses into that state, particularly if her medication is not maintained. Dr. EAM (consultant psychiatrist) who has reported on her queries the old diagnosis of paranoid schizophrenia because of the age of onset (19 or thereabouts), and wonders whether bipolar disorder might be the more appropriate designation.

Her psychiatric records show intermittent compliance with her medication, sometimes it is suggested her withdrawal from treatment being based on family influence/pressure. At times the failure to take her anti-psychotic medication has coincided with/led to significant increases in her vulnerability. For example she was seen at an outpatient review on 19^th December 2001 and presented with psychotic features, stating she wished to stop her medication, though the impression was she had already done so. She is reported only weeks later bringing home a man she had met at the job centre and announcing she wished to marry him.

Her current medication is resperidone and fluoxetine, both taken daily. Resperidone is known to have the effect in certain women of altering their menstrual cycle and potentially impacting upon both menstrual flow and in some cases fertility. When on medication her condition is by and large managed. However, she has periodically relapsed into psychotic mental illness with predominant paranoid ideas and paranoid delusions, prominent depressive mood features and frequently auditory hallucinations, such periods being triggered by variations/withdrawal from medication, but also major events in her life, for example following the birth of her daughter. This severe episode of mental illness following that birth required extended in-patient treatment. It is not clear whether this was puerperal psychosis or alternatively a puerperal relapse of a pre-existing illness. She has occasionally expressed suicidal ideation. She has poor insight into her state.

She has historically also received treatment for depression (in Pakistan for example) the treatment including injections and electro-convulsive therapy.

SK has undergone a number of hospital admissions pursuant to the provisions of the Mental Health Act 1983, although I do not find it necessary to refer to the details.

Records indicate that she has clearly suffered one miscarriage (August 1995). The statements and reports suggest there was possibly a second. There has been one termination (March 1996), and she has given birth to a daughter by elective caesarean section in May 1997, that baby (who was the subject of care proceedings) sadly dying some months later of natural causes. Various allegations were made in the course of the written and oral evidence as to the part, if any, played by KS, and/or MHAS and/or LU in causing miscarriages/requiring SK to undergo a termination or terminations. I set out my approach to consideration of such allegations later.

She has had a number of husbands. On the 31^st December 1997 she married SA in a civil ceremony in the United Kingdom. A further Moslem ceremony took place on 11^th January 1998. On the certificate, her marriage guardian was recorded as being her mother. It is said that SK was forced into this marriage by her mother in order to secure a UK entry visa for her husband, and that her mother obtained a financial reward paid in gold for arranging it. This allegation is denied.

The marriage appears to have broken down some time in 1999 as a result of alleged violence by her first husband upon SK. Those allegations form the basis of the divorce petition which ultimately led to a decree absolute in August 2003. It is further suggested that SA was enraged when he discovered that his wife’s then immigration status in the U.K. did not permit her to act as his sponsor for the purposes of his entry. He was in due course returned to Pakistan by the Home Office.

It is said by LU that in 2004 KS went about arranging SK’s second marriage to FS (a cousin). Once again an allegation of financial reward for KS is involved, as well as an allegation that this marriage also was arranged to secure spousal entry clearance for this nephew of KS into this country. I know very little about that marriage, where it took place, on what basis, etc., and thus make no further comment about it. It too ended badly. I have no evidence that a Talaq was pronounced, and thus no evidence to establish whether or not it has been ended even in the eyes of the religious authorities.

SK’s third marriage was to Mr. R (sometimes referred to as Mr. A), and it is alleged by SR against LU that once again it was arranged in order to obtain British nationality for him. It took place on 1^st December 2005. I report elsewhere the allegation made by SK that she found LU in bed with him subsequent to the marriage, causing a severe family rift. Again it is alleged that financial inducement to arrange this marriage features, although on this occasion the recipient is allegedly LU. There is much conflicting evidence as to who arranged this marriage, it being alleged by her sisters that SR was also instrumental in arranging it along with LU, although SR denies this.

It is this marriage in respect of which I am invited to make a declaration. At the outset of the hearing I pointed out that it was not clear to me what type of declaration was being sought. Whilst it is agreed on the current evidence that SK does not now have capacity to consent to marriage in English law, and whilst it may be reasonably inferred that she did not have such capacity at the time of this marriage, there is no clear evidence on the subject. Indeed in considering the issue of her capacity at this time it is noteworthy that the applicant local authority/health services were aware of marriages numbered one and two, and did not seek to restrain either on the basis of lack of capacity. Whether or not SK was at those times the subject of a formal assessment of her psychiatric state to determine the issue of capacity to consent (as opposed to the generality of her treatment) is not at all clear.

Even if it were to be the case that she then had no capacity to consent to marriage in English law, I am aware from a recent case tried by me (The City of Westminster and IC, KC & NNC [2007] EWHC 3096 (Fam)) that in certain circumstances Sharia law permits the marriage of someone whom the English law would regard as not having the capacity to consent by virtue of mental incapacity to marry as long as their marriage guardian consents on their behalf. I do not know whether or not, on this occasion, SK was regarded as having the ability to consent, or whether her marriage guardian (whomsoever that was) consented on her behalf. It does not appear as if her mother was present at the ceremony, and I would imagine that her mother would, by virtue of her status, be her marriage guardian, and not one of her siblings. Again the evidence insufficiently illuminates the landscape.

Furthermore, there is no evidence (it being unclear to me whether or not the second marriage has ever been dissolved) as to whether she was free to enter this marriage, or whether or not Sharia law permits her to take more than one husband, a proposition I would doubt.

Thus it seems to me that the only possible declaration I can make in relation to that marriage is that it would not be recognised as valid in English law being in breach of the Marriage Acts of 1949 and 1994, with particular reference to the form of celebration of it. I make this declaration.

SK has also had a long-term relationship (following her first marriage) with an Hindu (S) causing estrangement from her family. It was not just the religion of her chosen partner, but also that she was having sexual intercourse outwith marriage which caused such problems for her family, it being said that her actions were culturally, religiously and socially an affront to their beliefs and practices. The documentation I have read suggests that S was living with SK at the time she gave birth to her child (see above) although the papers also suggest that he may not have been the father, it being alleged that SK was at that time having sexual intercourse with more than one man. At all events that relationship broke down after about two years. It is at this time particularly that she appears to have been estranged from her family. It is now their case that this was at her wish and not theirs, and that they were anxious to assist her. I regret to say that I do not accept their evidence on this point, for the strong evidence suggests that this is a conservative family with orthodox views on the sinfulness of living with a man outwith marriage, and that their disapproval of her way of living manifested itself in them rejecting her.

Her longing for intimate male society, her desire for marriage, and her continued wish to have children make her vulnerable to exploitation (allegedly by her family members in the past and/or the men with whom she wishes to form an association). This vulnerability and its consequences will be discussed later.

Whilst she is capable of performing to some degree the practical functions of running a home, shopping and cooking for herself and of self-care, etc, there are severe limitations upon her practical skills, exacerbated by her illiteracy. Although she speaks Farsi, Urdu, Punjabi and English (in varying degrees and to varying low levels of sophistication), she is literate in none of them. Although attempts were made by KS to assist her in college attendance they foundered (see “allegations” elsewhere).

Her vulnerabilities extend beyond the realm of relationships with men, for she is highly manipulable by friends and family, as well as by strangers. There is a suggestion in the papers that at one stage one man (or more) had inveigled his way into her home and was living there when she was not. There are suggestions that her banking arrangements and her inability to organise this aspect of her finances has led to identity fraud by strangers as well as theft of sums of money from her by members of her family (see the section marked “allegations”). It has been agreed in the course of this litigation that she is incapable of running her financial affairs, and thus an appointee should be put in place to do so on her behalf.

I shall return to other aspects of her way of living, her capacity and capabilities in various contexts, and her wishes and feelings amongst other matters when considering in more detail the various issues thrown up by her case.

She was born in Afghanistan, but fled that country and its wars, moving through a number of different countries before arriving in England in 1991. She has permanent leave to remain.

She is either in her mid 60’s or her late 70’s (most of the official paperwork in this country suggesting the latter age, although she at one point in the papers appears to say that this was as a result of a misinterpretation of information given by her on her arrival in this country). Even in her oral evidence she was wholly unclear, retreating into purported forgetfulness on this subject. I have very little doubt she is in her late seventies.

Her daughter SR (born on 1^st July 1967) has two children living at home and one child living away. Her daughter LU (born on 2^nd June 1968) has three children. Her daughter MHAS (born on 3^rd May 1971) is married with five children. KS reports that in the past there were frequent shifts of loyalty within that group of daughters, and conflict, in particular in relation to how SK should be raised, and with whom SK should live, but that save for the severe current disagreement with SR those conflicts have abated. I shall return to this. She has in the past suggested that the decision as to where SK should live has been influenced by the wish of one daughter or another to receive the financial benefits paid by the State to SK. She no longer pursues these allegations.

She is said by the Borough to be isolated within the community, being heavily reliant upon her daughters. She at one time would call upon her husband’s cousins for assistance, but there is an estrangement from them given their more recently displayed derision of SK.

Apart from her family, she shops locally, and attends Mosque for Friday prayers. She seems to have no substantial support network in the community to help her with her own needs, let alone those of her daughter SK. In this, she is perhaps no different from many others in her own cultural community, the focus of life being that of the family. Whilst this comparative isolation is not necessarily a disqualification, it is part of the “balance sheet” (see below), and is relevant for example to the extent that it impinges upon her abilities to reflect upon, and deal appropriately with, SK’s need for greater involvement with different social and cultural groups (for example at college), or indeed at times prevention of this.

Her current accommodation (a one bed-roomed flat, kept immaculately) is inadequate for two adult women to live together. A body of documentation has been made available concerning her application to obtain this sheltered accommodation. She was taken to aspects of it in the course of cross-examination by Ms. Morris (counsel for SR) suggesting that she had given answers to her interviewers suggesting that her own abilities to look after herself were severely constrained. She was anxious in oral evidence to brush aside any such impression, purported not to understand how any such answers might have been recorded as a result of what she said, although she did agree that all of her relevant answers had been given whilst her daughter MHAS was there to translate for her. I need not set out the detail of the discrepancies between what she then said about her limited abilities, and what she now says is the real (higher) range of her abilities. I find that she was then quite content to exaggerate real problems, or fabricate problems for the purposes of deceiving the housing association in order to get better sheltered accommodation for herself. The reality is nevertheless that she is severely inhibited in much of what she does, and whilst she can, albeit with difficulty, manage her own life, she is quite incapable of caring, to the extent required, for SK with her multiplicity of presenting problems.

It is possible that she would obtain a transfer of tenancy to bigger accommodation should she have the care of SK, but that would be dependent upon SK registering her own housing need, KS putting in for a further transfer, and whilst social services can write to the applicant’s housing department (or the housing association) supporting any move and encouraging them to consider the case with alacrity, the association and/or that department has its own system of grading priorities, and it cannot by any means be guaranteed that re-housing would be obtained swiftly. She has had to move already because of her arthritis and the effect of it upon her mobility. In addition, she has historically suffered from asthma, although this is now believed to be controlled by medication, and she suffers from renal problems.

As for the care of her daughter SK, she has, prior to these proceedings and in recent years, had her to stay for very limited periods (perhaps no more than one or two days at a time). Although SK is capable, according to KS, of a degree of self-care in terms of her hygiene and dressing, the extent of SK’s abilities to run, or assist in the running of, an household are not at all clear, for KS speaks of teaching her the rudiments of housekeeping, shopping, etc.

She speaks no or very limited English. She sees how this is isolating, and speaks of wanting SK to attend college to learn and/or improve her own English, as well as giving her daughter an opportunity to experience the wider community. She did enrol SK in such a college, only for the placement to lapse when one or other of her other daughters took SK away from her care.

The evidence establishes that she has little or no notion in practical terms of how she would deal with the sort of problems which are more likely than not to arise, for example what she would do if SK brought home a man in whom she had an amorous (physical or otherwise) interest. She told her assessor that she would call social services (and not, interestingly, her daughters) to deal with this, it being their responsibility. One can well understand her dilemma, for she is from a culturally conservative family and society, and given the views of her religion, shared by herself, of regarding as sinful sexual relations outwith marriage, it is difficult to see how she could change her position on this. It would, of course, be open to attempt to discuss with her the possibility of accepting that a man in this category might enter her home for purely social purposes, any sexual relationship occurring elsewhere. That is certainly a submission which, in the course of exchanges during cross-examination of Ms. GC (see below) Ms. Hewson for KS invited me to consider. In my judgment there is an air of persistent unreality about the proposals being put forward by KS on this as on so many subjects.

KS’s answer as to how she would deal with her other daughters seeking to remove SK from her care was similar (namely reliance upon social services), she stating that she had no influence over her other daughters. Were I to accept that that lack of influence was of historical interest only, and that KS, LU and MHAS are now agreed as to the proper care of SK, and that neither daughter would seek to remove SK from KS’ care, it is submitted that this is not an issue which should cause me worry. Of course SR does not share in this proposed family plan for the care of SK. She is vehemently opposed to it. It is suggested to me that a variety of injunctions placed around these family members might be a way of governing their vicissitudes of feeling for and about each other, and any acts consequent upon those vicissitudes, and that I could rely upon such a structure to ensure that the care of SK remains with KS. I do not find this a convincing argument, for were I to find that there continues to be a risk of real disagreement between them, which I do, who would be the reporter of infractions? Is it really to be expected that from this familial and cultural background, KS would report her daughter or daughters for any such infraction, leading possibly to the removal of SK from her care, and/or potentially grave consequences for her daughter or daughters.

As is by now already clear, the endlessly shifting loyalties of this family have led to rafts of serious allegations being made of, at times, unlawful and shocking behaviour towards, or concerning, SK, by members of her family, or against each other (see below). I therefore pause at this point to describe my approach to the consideration of such allegations.

In a skeleton argument filed on behalf of the applicant at the start of this hearing, it was asserted that it is not necessary for the Court to make detailed findings of fact, and indeed it is not possible so to do, in order to determine SK’s best interests. They say that the totality of the picture of familial conflict over very many years, as evidenced by the fact of the making of allegations by one member of the family against another, is a sufficient backdrop for my purposes.

Ms Weereratne (for the applicant) submits that this approach was endorsed by Wall J. (as he then was) in Re S (Adult Lack of Capacity: Carer & Residence) [2003] 2 FLR:

“What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and the long term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category…….

Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justifiable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interest?” (At 18 and 21).

In considering the necessity for and likelihood of being able to make findings of fact I remind myself that where allegations are made, the burden of proving each allegation is upon the maker, and the requisite standard of proof is the balance of probability (see H & R [1996] 2FLR 80 et seq).

As Lord Nicholls said at 96B:

“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts (1964) 1 W.L.R. 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

“This substantially accords with the approach adopted in authorities such as the well known judgment of Morris L.J. in Hornal v. Neuberger Products Ltd. (1957) 1 Q.B. 247, 266: This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.”

Suspicion plays no part in this exercise, it being wrong to find facts solely on the basis of suspicion, even high levels of suspicion.

There are allegations of assault (for example MHAS on SK, SR on SK, KS on SK); theft (for example the removal by MHAS - and her husband? - at the behest of KS of £2,400 from SK’s bank account); arranging marriage/s for SK for financial advantage, and/or to secure entry clearance into the country for the husbands, etc.

It is said by way of further example that LU alleged MHAS and KS had organised a “hate campaign” against SK, and LU was advising social services at one point not to trust KS or MHAS and to communicate exclusively through her.

LU is alleged to have engaged in a sexual act with one of SK’s husbands, and to have been discovered in flagrante by SK. There are further allegations that LU had been misusing SK’s money. At times it is said the family completely abandoned SK leaving her in independent accommodation with no support or care (although it is now said by KS in particular that SK was beyond their control). LU alleges that SR (who was for a period until May 2007 caring for SK), kept her effectively imprisoned in the home. Another allegation centres on a burglary from SK’s flat by one of her sisters. One or more of the sisters/KS is said to have alleged that SR murdered her husband, is a drunkard, and is frequently violent (occasionally deploying weapons).

It is alleged by LU that SR made threats against SK (following a disagreement/misunderstanding about the relationship between SR and SK’s third husband), and in the course of it SR wielded a knife against SK, LU being injured in attempting to intervene.

There have been allegations (see earlier) that KS is not the mother of SK (now known by DNA testing to be an inaccurate allegation) and that SR is only a half or step- sibling to SK (KS not being her real mother).

KS has alleged that SR is cruel and abuses her own children. SR alleges that KS married her to a cousin of her father’s at the age of 14, receiving money in exchange. Whether or not this was a traditional dowry is not clear, but the undertow is that it was more than that.

Having read the papers with care, and considered not only the allegations of the family set out in their respective statements, but also in the vast amount of surrounding material, I have come to the clear conclusion that it is not possible to establish in the case of each and every allegation where the truth lies. In relation to some allegations there are very high levels of suspicion, but I could in all honesty go no further than to so record. I have nevertheless been able to come to some clear views on certain issues (for example the family’s rejection of SK for a period) and on the generality of individual credibility. For example, there was one part of the factual evidence (both written and oral) which related to KS’ relationship with a fellow tenant of the building in which she previously lived. He made many allegations about her behaviour, including that she launched hostilities against him, was racist, intolerant, abusive of him and his one guest, and guilty of physical assault upon him. KS denied all of these, but I regret to say, having listened carefully to both of them, and to the contextual and compelling detail given in particular by Mr. F., that I unhesitatingly prefer his evidence over hers. I appreciate that people lie for many reasons, and have accordingly given myself a direction which any judge in a criminal case has to consider giving to a jury where a defendant has lied or is thought to be lying the warning being set out in the case of R v Lucas [1981] QB 720. I need not set out the full terms of that warning at this point, but have directed myself accordingly. I find that KS’ lying in this area of the evidence leads me to disbelieve other testimony she gives, or at the very least apply a heavy discount as to her truthfulness. For example, Mr. F described periodic observations by him of SK suggesting high levels of neglect of her by either KS and/or her family in the absence of KS. I believe him.

I regret to say I have come to the same conclusions about the credibility of MHAS and LU when they were attempting to portray family life and relationships in the past, and how that has impacted upon SK, and in particular whether or not they rejected her and/or exploited her in general terms. Thus, whilst being unable to make specific findings on most of the allegations, I approach their evidence with considerable caution which will inevitably give me considerable pause for thought when evaluating the reality of their expressed intentions for their future conduct, particularly when they assert that they have learned much from the recent past, and will strive not to re-create circumstances which will put SK at risk of, at the very least, becoming embroiled in their feuding.

Overall, having considered in general terms these findings as to credibility and most of the allegations made, I respectfully adopt the approach suggested by Wall J. in Re S (Adult Lack of Capacity) above save as to express findings set out in this judgment. I agree with the applicant’s submission that the high levels of feuding and acrimony in this family are sufficiently established by the making of the allegations themselves, and sufficiently illuminate the family landscape for the purposes of a “best interests” test. Have they changed as they submit? Or does this history indicate their likely future conduct with all its implications for SK? See below for my findings.

Before turning to the issues, I find it useful to set out, and thus remind myself, of the jurisdictions I am operating within in considering this case.

This court has the power to make declarations (consistent with the terms of section 15 of the Mental Capacity Act 2005), and, where it considers it appropriate, to make orders and/or appoint a deputy with powers to make decisions on behalf of a patient in relation to a variety of specified matters (section 16 of that Act). The specified issues are set out in section 17 of the Act and include deciding where a patient is to live (section 17 (1) (a)).

The Act came onto force on 1^st October 2007, and these proceedings were issued before that date. Thus I must consider the transitional provisions, but before so doing, it is worth recording that the Code of Practice in respect of the Mental Capacity Act 2005 (issued by the Lord Chancellor on 23^rd April 2007 in accordance with sections 42 and 43 of the Act), notes at paragraph 4.33:

“The Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions.” [The guidance of course does not have statutory force].

As to the transitional provisions, the Mental Capacity (Transitional and Consequential Provisions) Order, England & Wales SI [2007] number 1898 contains extensive provisions none of which would inhibit the common law or statutory powers of this court (or the Court of Protection) to make declarations and/or orders in respect of the affairs of IC.

There are a number of authorities which consider the ambit, and the principles in respect of the exercise, of the inherent jurisdiction in relation to mentally incapacitated adults. See, for example, Re: F (Adult Court’s Jurisdiction) [2000] 2 FLR 512, Re: PS (An Adult) [2007] EWHC 623 (decision of Munby J.), Re: M (An Adult) [2007] EWHC 2003 (a further decision of Munby J.) and MVB, A & S (by the Official Solicitor) [2006] 1 FLR 117 (a decision of Sumner J.), by no means an exclusive list but a useful one.

I need, for the purposes of this case, only to quote one passage from the Judgment of Munby J. in Re: PS (An Adult) (see above) to summarise the position established by authority. He says this:

“12.

I do not take up time re-tracing the history and development of the inherent declaratory jurisdiction with respect to adults since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. It suffices to refer to the account in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [38]-[43]. I merely repeat what I said in that case at para [37]:

"It is now clear … that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court."

I added at para [45]:

"the court can regulate everything that conduces to the incompetent adult's welfare and happiness."

13.

Consistently with this view of the jurisdiction (and as demonstrated by Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, and St Helens Borough Council v PE [2006] EWHC 3460 (Fam)) there is no doubt that the court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult's welfare and interests, just as there is also no doubt that the court has a wide and largely unfettered jurisdiction to grant appropriate injunctive relief. More generally, as I went on to observe in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [96]-[97]:

"It is elementary that the court exercises its powers by reference to the incompetent adult's best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case."

14.

There is no doubt that since its rediscovery by the House of Lords the inherent jurisdiction has evolved, that it continues to evolve and that it must indeed continue to evolve if the court is properly to comply with its obligations under, for example, Articles 5 and 8 of the Convention: see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [52]. As Dame Elizabeth Butler-Sloss P said in Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC 2746 (Fam), [2004] 1 FLR 541, at para [96], in an important passage to which Mr. O'Brien appropriately drew attention:

"It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue, as Lord Donaldson of Lymington MR said in In re F (Mental Patient: Sterilisation), to use the common law as the great safety net to fill gaps where it is clearly necessary to do so."

Singer J made precisely the same point when he said in Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [8], that the jurisdiction is "sufficiently flexible … to evolve in accordance with social needs and social values."

15.

I said much the same thing in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [45], where I expressed the view that:

"New problems will generate new demands and produce new remedies"

adding at para [84] that:

"Just as there are, in theory, no limits to the court's powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court's powers when exercising the inherent jurisdiction in relation to adults."” [Paragraphs 12 – 15.]

As I said in the case of The City of Westminster v IC [2007] EWHC 3096 (Fam):

“I respectfully agree with the observations of Munby J., and, where it is necessary, lawful and proportionate I consider that this court can exercise its inherent jurisdiction in relation to mentally incapacitated adults alongside, as appropriate, the Mental Capacity Act 2005. Consistent with long-standing principle, the terms of the statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the Statute or any supplementary regulatory framework.” [Para. 119].

The terms of section 4 of the Mental Capacity Act 2005 repay close attention; the section reads as follows:

“4 Best interests

(1)

In determining for the purposes of this Act what is in a person’s best interests,

the person making the determination must not make it merely on the basis of -

(a)

the person’s age or appearance, or

(b)

a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)

The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)

He must consider—

(a)

whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)

if it appears likely that he will, when that is likely to be.

(4)

He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)

Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)

He must consider, so far as is reasonably ascertainable—

(a)

the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)

the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)

the other factors that he would be likely to consider if he were able to do so.

(7)

He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)

anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)

anyone engaged in caring for the person or interested in his welfare,

(c)

any donee of a lasting power of attorney granted by the person, and

(d)

any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(8)

The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)

are exercisable under a lasting power of attorney, or

(b)

are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)

In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does

or decides is in the best interests of the person concerned.”

In reaching the conclusions which I have set out elsewhere in this judgment on the various issues I have to decide I have, having come to my conclusions on capacity, then gone on to assess the best interests of SK by applying this framework. In particular, I have reminded myself of the necessity to approach these issues on the basis of my consideration of “all the relevant circumstances”. This approach has also been adopted by me when I consider questions of the use, if necessary, of the inherent jurisdiction.

How might one approach the evidence? In Re A. (Male Sterilisation) [2000] 1 FLR 549, Thorpe LJ said this at P. 560:

“I turn from the outcome in the present case to some more general observations. There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal ………… pending the enactment of a check-list or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of fool-proof contraception. Then on the other sheet the judge should write any counter-balancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the applicant is likely to advance the best interests of the claimant.”

I shall adopt the approach above adverted to in considering these issues. In this case I had the advantage of the evidence of two experienced members of the management team of the Borough’s Learning and Disabilities Team, Ms. B and Ms. GC who had carried out their own “balance sheet” exercise. I further had the evidence of an expert witness, with whom Ms. B and Ms. GC agreed, and it is to the evidence in particular of that expert, and in particular her consideration of the “Balance Sheet”, that I shall in due course turn (see paragraphs 118 – 121 below).

Having in this limited way set the scene; let me turn to the issues in more detail. It is agreed by all parties that:

SK lacks the capacity to:

i)

Litigate on her own account;

ii)

Marry;

iii)

Decide her residence;

iv)

Consent to the carrying out of the oophorectomy.

v)

At times, she does not have capacity to consent to sexual relations. However, as to this last issue, see below for the submissions of SR which go further and suggest it would be appropriate to find that she does not have capacity at all.

vi)

Consider the issue of contraception.

The issue of capacity to litigate was considered in Masterman –Lister v. Brutton and Co (No1) [2003] 1 WLR 1511. Chadwick LJ said:

Capacity to litigate is issue-specific. Some issues are much simpler to understand than others, some require a complex consideration of philosophical and legal abstractions. This case is at the latter end of the spectrum. I direct myself in the above terms.

The totality of the psychiatric evidence (which I accept) persuades me, insofar as a layman can comment upon these issues, that indeed SK does not have the capacity to litigate, directing myself as to the applicable law in the above terms. Such is the nature of her condition/s that she is unlikely ever to have the capacity so to do.

There are two aspects to this question:

In the case of In the estate of Park, deceased, Park v Park [1954] P 112 at 127 Singleton LJ described:

“The duties and responsibilities that normally attach to marriage can be summarised as follows: marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance”.

I appreciate that in some cultures and religions, the phrase “to the exclusion of all others” may be inapplicable.

In Re E (An Alleged Patient) Sheffield City Council v E [2005] 1FLR 965, Munby J. further considered capacity to consent to marriage in the light of the existing authorities on the subject, including Park v Park (see above). At paragraph 141 he set out what he found to be the relevant constituents of the test to be applied in considering this issue:

“(i) The question is not whether E has capacity to marry X rather than Y. The question is not (being specific) whether E has capacity to marry S. The relevant question is whether E has capacity to marry. If she does, it is not necessary to show that she also has capacity to take care of her own person and property.

(ii)

The question of whether E has capacity to marry is quite distinct from the question of whether E is wise to marry: either wise to marry at all, or wise to marry X rather than Y, or wise to marry S.

(iii)

In relation to her marriage the only question for the court is whether E has capacity to marry. The court has no jurisdiction to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with E’s capacity to marry. It is not concerned with the wisdom of her marriage in general or her marriage to S in particular.

(iv)

In relation to the question of whether E has capacity to marry the law remains today as it was set out by Singleton LJ in In the Estate of Park, deceased, Park v Park [1954] P 112 at 127:

(v)

More specifically, it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understand its words.

(vi)

He or she must understand the nature of the marriage contract.

(vii)

This means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.

(viii)

That said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.

(ix)

There are thus, in essence, two aspects to the inquiry whether someone has capacity to marry: (1) Does he or she understand the nature of the marriage contract? (2) Does he or she understand the duties and responsibilities that normally attach to marriage?

(x)

The duties and responsibilities that normally attach to marriage can be summarised as follows: marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.”

I respectfully agree with this formulation and apply it in this case.

The totality of the unchallenged evidence, especially the psychiatric evidence, leads me without hesitation to find that SK does not have the capacity to consent to marriage, the answer to the two questions posed in paragraph 76 above being in the negative. Once again, such is the reality of her condition/s that she is unlikely ever to have the capacity to consent to marriage.

In Re MB (Medical treatment) [1997] 2 FLR 426 Butler-Sloss LJ (as she then was) considered capacity to consent to medical treatment. At 437 she said this:

“A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when: 

(a)

the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;

(b)

the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision”.

SK has been seen by Miss RL (consultant obstetrician and gynaecologist). An ultra-sound examination carried out before consultation showed that SK has a 5cm x 5cm complex solid cystic mass. The vast majority of such masses in women of SK’s age are benign in nature, although given the possibility of malignancy it is necessary for a definitive diagnosis. In addition to that question, SK has intermittent abdominal pain likely to be caused by the presence of the mass. For those two reasons it is in her best interests medically for the mass to be removed. Miss RL would wish to carry out this laparoscopic ovarian cystectomy (oophorectomy), and then to assess the left ovary. If the lesion has the appearance of a benign cyst the ovary would be left intact, but any proper sign of malignancy would require the left ovary to be removed.

Even were removal of the left ovary to be required, the right ovary would continue to function and the removal of the left one “would be unlikely to have a significant effect on her fertility”.

When Miss RL saw SK in March, she was of the view that SK, using the services of an interpreter, seemed to understand that she would be undergoing a laparoscopic procedure for “she pointed at her sub-umbilical scar”. It was ascertained that whilst she appeared to understand that the hospital would be removing a lump, she did not appear to understand the reasoning behind it, and had “insufficient comprehension to judge the risk and benefit profile”.

Dr. EAM saw SK again on Friday 14^th March 2008. She too had the aid of an interpreter. Whilst she understood that she would be “asleep” when an operation would be carried out, SK was not able to describe what the word “cyst” meant, and had no grasp either at the time, nor in recall some 40 minutes later, of the potential need for the removal of the ovary in the event that malignancy or suspicion of malignancy was manifest. I need not set out any further detail from that interview, for the unchallenged conclusion reached by her was that SK’s learning disability and recurrent psychotic mental illness only partially treated by medication, amounts to an “impairment of, or a disturbance in the functioning of, the mind or brain” as that terminology is used in section 2 (1) of the Mental Capacity Act 2005. It was the clear view of Dr. EAM that accordingly, SK does not have the mental capacity, following the test set out either in Section 3 of the 2005 Act, or the test in Re MB (see above) to make decisions about surgery and other supplementary investigations or treatments for her cyst. I accept this unchallenged and compelling evidence which establishes lack of capacity.

The risks associated with the procedures are the obvious ones of infection, those normally arising when general anaesthesia has to be administered, “thrombosis, bleeding and inadvertent damage to other organs, including bladder and bowel, which might necessitate laparoptomy in order to repair the damage”. Serious risks of the procedure proposed occur in only approximately one in a thousand cases, although given that SK has previously had a caesarean section, there may be a slightly increased risk in her case caused by the presence of adhesions. The treating doctor would have to make the decision in the course of the operation, and in the event that it is impossible to complete the operation laparoscopically, a laparoptomy may need to be performed.

The totality of the medical and psychiatric evidence, when viewed through the lens of the best interests test, and the factors which I should consider when applying that test (see above) satisfy me that it is undoubtedly in the best interests of SK that this procedure should be carried out, and, for the avoidance of doubt, that if in the judgment of the doctor carrying out the operation, it is necessary to go further and remove the left ovary, that procedure would also in the best interests of SK. I appreciate in so stating that the common law would also provide protection to any doctor taking that clinical view and carrying out that further procedure. It is unquestionably in her best interests that the mass currently causing her discomfort and intermittent pain be removed. This is even more so in the light of the possibility that it is a malignant mass. The risks adverted to in paragraph 85 above are not of such a high order that they militate against the carrying out of this operation.

Whilst it is not for me to dictate how the hospital should approach surrounding management issues in carrying out the oophorectomy, I should not leave this part of the judgment without considering two points.

The first is that as a result of her meeting with Dr. EAM on 14^th March 2008, in which Dr. EAM properly discussed with her the issue of contraception and the fitting of an IUD, SK made it abundantly clear that she was fiercely opposed to the insertion of a contraceptive device. It has previously been proposed in the medical evidence that whilst SK is under general anaesthetic for the carrying out of the oophorectomy, it would be the perfect opportunity to insert such a device. This could not be done either without her consent if she had capacity or without a court order.

In the course of the evidence it became very clear to me that the two procedures would have to be uncoupled. Apart from anything else, if SK were to be under the impression that in submitting to the administration of an anaesthetic she would be putting herself at risk of the doctors carrying out the insertion of a contraceptive device at the same time, she would be more likely than not to manifest powerful resistance, vocally and physically. The hospital would then be faced with management decisions as to whether or not to proceed with the operation on that day, or attempt to re-negotiate with SK for a future occasion. The evidence of Dr. L (the medical director at the hospital) and the evidence of Dr. EAM satisfies me that it would not be in SK’s interests even to contemplate the two operations being carried out at the same time. I should make it clear, for the avoidance of doubt, that no final decision has been made that the hospital shall carry out the insertion of an IUD at any stage, for it is now the proposal of the hospital to consider at a multi-disciplinary meeting one month after the carrying out of the oophorectomy whether or not a contraceptive device should be fitted (always assuming that I make a declaration that the carrying out of such an operation would be in her best interests).

The second point which arises is that I can imagine that SK will be anxious at the time of this operation, particularly as she may still associate the whole procedure of the oophorectomy and the administration of a general anaesthetic as a prelude to the insertion of an IUD. It will, therefore, be necessary and appropriate, in my judgment, for a Dari-speaking person (whether a member of one of the local authority’s teams, or a member of her family), to be present with her for much of the prelude to the operation, and after she regains consciousness, so that she may be given the necessary reassurances. In the event, of course, that the removal of her ovary is deemed necessary, it will be essential that a Dari-speaking person is there to explain, at the appropriate time, what has happened to her and why.

At the heart of the dispute before me was the issue of where, and with whom, SK should live, and whom she should see.

The applicant local authority is agreed, as is SR her sister, that SK should live in the home (WR) suggested by the local authority.

KS, LU and MHAS all agree that SK should live with KS. Their second position is that in default, SK should live in a home provided by the applicant. Even though SR wishes to care for her sister, given the current state of the relationship between her and SK, this would not be viable. Interestingly, neither MHAS nor LU seeks the care of their sibling.

Depending upon the outcome of the above decision, contact issues will flow.

The applicant has investigated three potential residential homes in the event that I grant them the reliefs sought. One is at a home called WR. SK apparently likes it, and there have been brief and happily successful introductions of her to WR and its staff, and a recent overnight stay. One of the perceived advantages is the availability there of staff who speak Farsi. The family (coming from Afghanistan) speak the Dari dialect of Farsi, and the written evidence does not altogether make it clear the dialect in which the proposed key-worker for SK, and the manager of WR, speak, although I was told by counsel that it is Dari. Nor does the evidence indicate which, if any, of the staff at WR speak Urdu or Punjabi (both languages with which SK has a degree – unspecified – of familiarity).

As to contact, the local authority are proposing what they describe as “a cautious relaxation” of the current arrangements. The court is invited to review contact arrangements periodically. I shall return to their reasons for wishing to maintain a structured approach to contact for the immediate future in due course, for they consider that historically there have been risks attached to permitting unsupervised and very liberal contact, and would prefer to move slowly towards a reduction in the impediments currently placed around it.

RP is a supported living placement. Part of its remit is to increase the independence of its tenants. There is a regularly reviewed support plan for each resident, with appropriate levels of staff support according to needs and abilities.

It is based in a three bed-roomed detached bungalow and currently has two female residents. SK would be the third. Her mother KS prefers this option if she cannot care for SK herself, a significant recommendation to her being that it distances SK from the dangers of forming inappropriate (possibly sexual) attachments to a male. There are two Moslem women working in the scheme which is a further advantage. Their language skills are unknown. It would be a perfectly appropriate home for SK.

I have said something of this home earlier. It is the local authority’s preferred placement, and has been the subject, as has RP, of an assessment by Ms. W. It is her preferred option as well. The Official Solicitor and SR also support it. It is an 8 bed-roomed two storey house with a large garden. The current occupants are of both sexes. It has 24 hour staffing with a manager who understands Farsi, and who has some speaking skills in that language. There is also another social worker who does speak Farsi employed there. The manager in particular, impressed Ms. W for her abilities, and sensitivity to, for example, the multiple needs of, and the associated risks in caring for, SK. Some of the questioning in oral evidence of the applicant’s social workers was devoted to the bathroom and lavatory arrangements at this home. The room identified for SK is on a floor with two other bedrooms, one taken by a male occupant. That floor has its own bathroom and lavatory. It is not thought in this carefully monitored establishment that there is likely to be any intrusion upon, or loss of dignity by, SK (nor indeed the other residents) when carrying out their ablutions, a view reinforced in their experience by the fact that in her current residential accommodation provided in the course in the second half of last year, she has experienced similar arrangements without any difficulties arising.

As noted above, SK has visited WR a number of times, and recently stayed overnight there. She prefers it to RP, and limited observations of her there suggest that she is comfortable with the endroit, the staff and the other residents.

It is possible that from WR she could, as appropriate, attend college/work, social clubs, as well as places of public entertainment. It is noteworthy that when she lived alone she was able to navigate her way around an area of London familiar to her, and she was said to move freely about that neighbourhood but will at first need support in going to areas she did not previously know. Currently, she is somewhat shy of venturing from her short-term residential home, not being familiar with the area, and anxious about new areas of London. If she were to move to WR it is intended that she should be introduced to her local community and become increasingly familiar with its environs so as to reduce those anxieties, and help to stimulate her, for she is currently bored. It is noted that the applicant does not intend, for the foreseeable future, to permit her to leave WR unescorted for a variety of reasons. Of course once she is introduced to the area it raises the possibility/probability that she will be much less compliant with the requests of her carers not to put herself at risk, which she may easily do if she ventures forth unaccompanied in due time, and thus the issue of restraint of liberty falls to be considered (see below).

Ms. B told me that at WR there is a small team of specialised residential social workers who have a very low rate of staff turnover. Their skills are supplemented by regular visits from the community psychiatric nurse, and they are able to access psychiatric and specialist health-care teams from the local primary care trust. Psychology services are also available.

Each resident is the subject of regular multi-disciplinary reviews, and there is possible access to educational programmes as well as those suggested by occupational therapists.

One of the functions of that home is to promote self-esteem, and the ability to make choices independently. It recognises the absolute need for respect for the dignity of each resident. The staff are fully conscious of their duty to protect SK, taking full account of her vulnerability to exploitation.

WR is a not-for-profit organisation, and in placing SK there the applicant would be delegating its day to day powers to the staff at WR. But they remain in close contact with the staff there, having other persons under their charge placed there already. There are regular visits by the applicant’s staff, regular reviews of those whom they place within it, and good open channels of communication between the two organisations.

I have earlier made clear my views on the proposals of KS and her daughters MHAS and LU for the care of SK. Those proposals rely fundamentally upon the ability of KS to provide the necessary support and advice for her daughter. Her own assessment of her capabilities, even assisted by her daughters, is wholly unrealistic. She does not have the accommodation. She does not have sufficiently good health. She has no real experience of managing her daughter, and all the complexities of even every day living which will arise should SK live with her. She does not have the insight or the training to deal with the particularly thorny issues thrown up by SK’s profound wish to marry, and/or to have sexual relations, and/or to have a baby.

Whilst it might be the case that MHAS and LU, despite their own heavily committed arrangements in caring for their own husbands/children, will be able to assist her to some small degree, it would in my judgment be wholly insufficient by way of arrangement to provide the proper levels of care which SK now needs. In so deciding, I have not overlooked the issue of the strong, if at times conflictual, relationships in this family, which is a subject more dealt with in detail when I consider contact issues.

I am acutely conscious, in exercising these powers, that SK, along with her mother and sisters has the right to respect for her private and family life pursuant to Article 8 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention). In this context, it is helpful to consider what Munby J. said in Local Authority X v MM (By Her Litigation Friend, The Official Solicitor) and KM, [2007] EWHC 2003 (Fam) handed down on 21^st August 2007 (see paragraphs 110 – 119 inclusive, only the last five of which I set out):

“Now all that was said in the context of a consideration of the concept of “significant harm” as that phrase is used in section 31(2) of the Children Act 1989, and I recognise of course (see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at paras [45]-[46]) that there is no corresponding threshold for the exercise of the inherent jurisdiction in relation to vulnerable adults. But as Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, itself shows, the inherent jurisdiction is animated by the principles expounded by Lord Templeman and Lord Oliver of Aylmerton in Re KD. As I said in Re S at para [48]:

“I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in Re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.”

We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon ‘social engineering’. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult’s partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.

At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council [2002] 1 FLR 217 at para [43].

The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at paras [90]-[92], and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [27]. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444, at para [8].

There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk.”

I respectfully agree with these observations, and have directed myself accordingly.

Adopting the balance sheet approach (see below for further detail), and taking account of all of the findings I have made above in relation to KS, her abilities, and those of her daughters (see paragraphs 106 & 107 above), as well as to those matters to which I shall advert in the next section of this judgment dealing with contact, I have no doubt at all that it is in the best interests of SK that she lives at WR. In so deciding, I have taken full account of the powerful and oft expressed wishes of SK to live with her mother, and her observations to her siblings LU and MHAS that she feels “trapped”, “caged” and “bored” in a residential home.

Following the order of Black J. on 6^th June 2007, SK has been living in residential accommodation provided by the local authority, and seeing her mother and each of her siblings (save SR) on a strictly controlled and supervised basis, with a Farsi interpreter present. At times, MHAS and LU have attended with their children. This move to a home followed the making by SK against SR of allegations of physical assault and bullying, and further allegations from MHAS and LU that SK was being detained at SR’s home against her will, and frequently neglected whilst SR went out to work. Those allegations are denied, but SR has not had contact since.

The family contact which has been taking place is not less than twice-weekly, and for at least three hours on each occasion, save for SR who enjoys a total of three hours per week. Overall, despite that which follows later in this paragraph, the applicant’s assessment of contact is that it is greatly appreciated by all of the women, in particular by SK who is very tactile and affectionate, and who displays those behaviours readily with her family. The overall quality of contact has been highly rewarding for all concerned. There is an agreement as to the subjects which might be discussed and which are inappropriate to discuss with SK. There has, nevertheless, been an occasional alleged infraction, for example it being said that in September 2007, KS was whispering in the ear of SK that the latter should say that she wished to live with her mother. KS says this is all a misunderstanding and she was simply inviting her daughter to inform the Official Solicitor that she wanted to live with KS, SK having previously indicated this strong wish, and her mother seeking to help her to bring it to the attention of the Court. There is no evidence to support this allegation save the hearsay reference. On 15^th January this year KS touched SK in the vaginal area through her clothing. The explanation from the family for this is that there was some discussion of SR’s visit to see a doctor who had asked her about sexual relations in the course of which discussion KS touched SK’s vaginal area and she and her daughters were laughing with, and not at, SK. The applicant considered this to be an inappropriate way of touching, and the family was so advised. Only a few days later on 18^th January 2008 in the course of a very affectionate greeting of her mother, SK had at one stage in the course of that contact reached over to touch and then begin to rub her mother in the vaginal area through her clothing. Neither the mother, nor LU, nor MHAS attempted to stop this, and made no attempt to advise SK that this was inappropriate. These two occasions are admitted by the family, and it is their case that they listened carefully to the advice received on both such occasions, and will be vigilant to prevent and/or stop any repetition of such behaviour. It is concerning, says the applicant, that where it is well-recognised that SK has real trouble understanding boundaries, this family, even as late as January this year, simply did not recognise the wholly inappropriate nature of this behaviour. This, say the local authority is particularly worrying when one considers the previous exploitations of SK by men, and her inability to recognise proper boundaries of intimacy which the family should be teaching her and not undermining by default or act. I agree with the Borough’s view. I give these details by way of illustration only.

In the course of the oral evidence, a number of factors were identified by Ms. B and Ms. GC as risks to SK which in their judgment had required the establishment of a controlled framework of supervised contact with KS, MHAS and LU as endorsed by the court at the outset of the proceedings. The factors included risks based upon allegations then current that KS and/or the two sisters were attempting to arrange a further marriage for SK when, in the applicant’s view, she demonstrably had no capacity to consent; allegations the family (not SR) were stealing from SK; that they were not aware of her multiple needs; that there was a continuing climate of “high expressed emotion” (this being a risk factor possibly triggering psychotic breakdown for SK because of her psychiatric vulnerability); that there was a history of feuding between the mother and the sisters in the presence of SK which likewise impacted on her mood and psychiatric state, and the continuing risk that SK would be drawn into this feuding.

In terms of their current view as to the risks arising from unsupervised contact, the factors relating to marriage and finance can be set to one side. They nevertheless remain concerned about the others set out above, and the obvious implications for SK if caught up in this climate. I find that the written and oral evidence more than establishes a history of behaviour between the mother and her daughters which factually underpins these anxieties. It is the family’s case that they have learned much in the course of these proceedings about SK, about her capacities, about what affects her, and about their own behaviour and its implications for SK. They assert that they have learned to moderate their behaviour, and now being fully cognisant of the risks to SK, would not expose her to a repeat. In so asserting they have a modest degree of support from Ms. B and Ms. GC who spoke of a meeting arranged last September, attended by KS, MHAS and LU, social workers and members of the psychological services, the purpose of the meeting being to identify, in part at least, some of SK’s needs, and what the family might do to assist her. The applicant says one such session is insufficient to address long-standing patterns of relationships. Has the family learned enough? I do not believe so based upon my reading and my observations of them throughout this hearing. I appreciate the disadvantages of attempting to assess such patterns of behaviour on the basis of the limited snapshot of behaviour and evidence in the forensic arena, but sadly all-too alive and well were the manifest antipathies running powerfully through this family’s relations with each other, and their anger, passion and distress when reflecting upon these issues and their current loyalties. I have no doubt at all that there remains a real risk /probability of these hostilities repeating themselves and being all-too evident to SK who would be drawn into them, with consequential deleterious effects upon her state. I do not consider it to be an answer that SR is for the moment excluded from contact, she being the current focus of hostilities. This family has turned each upon the other from time to time, SR being the current bête noir. It is the applicant’s plan (put forward for consideration by SR) that there be attempts, subject to the wishes and feeling of SK, to re-introduce SR into the life of SK initially by the provision of a DVD from her sister showing happier times in their relationship. Were that re-introduction to be achieved, SR would be back in the arena as the direct focus of hostility from her sisters. Even if she remains outwith the current contact arrangements, I have very little confidence in the assertions of KS, MHAS and LU that they will avoid the topic of SR when in the presence of SK, and even if she mentions her sibling, they will not discuss her.

I nevertheless see that it is more appropriate than not to attempt a cautious relaxation of the contact regime. Such an attempt must be carefully managed by the applicant. Ms. B and Ms. C spoke of a Family Therapeutic Intervention which should ideally be set up to assist this family (as well as those managing the affairs of SK). Such an intervention is arranged by the Mental Health Services, and the tailor-made programme runs for an average of six to nine months. The family is advised how to deal with those suffering from psychotic conditions, how best to help them, irrespective of whether the incapacitated person lives at home or is resident in another home and the subject of a contact regime. I invite the applicant to pursue a referral to the Mental Health Services for the creation of such a programme for this family. It is a highly desirable programme for them for they, particularly LU, recognised their historical failures to discern the complexities of SK’s illness, and failed to respond appropriately to the vicissitudes of her condition. Such a programme is not available in Ealing, and it may instead be necessary to apply to other psychology services.

The applicant’s proposals suggest the need for a regular review of the needs, wishes and feelings of SK, both in relation to her direct contact with her family, and her wider needs, it not being possible to consider contact issues in mediation. The family is proposing a swift move to unsupervised contact, and even staying contact. Whilst not ruling out such suggestions for the medium and longer term, it is far too early, in my judgment, to move to such a regime. SK will be undertaking a move to WR. She will be negotiating in her own way her relationships within that home, as well as potentially her disappointment in not living with her family. She will be the subject of lengthy and careful assessment as to her need for access to programmes of education as well as social stimulation. Although there is some sympathy for the suggestion made by the family that MHAS and/or LU (and possibly their mother) might approach WR directly by telephone or otherwise and ask for permission to drop in from time-to-time, such a way forward cannot be at the expense of her ability to settle and access important programmes elsewhere. Whilst recognising the importance to SK of her family, and the Article 8 rights under the Convention of all of these adults, I approve the more cautious approach of the applicant, supported as it was by the expert evidence of Ms. W.

SR is anxious that I should make a finding to the effect that I cannot determine the truthfulness of the allegations that she assaulted her sister in May or June 2007, and the other allegations referred to earlier, for example that she, in effect, unlawfully imprisoned her sister in her home, and neglected her. I have already set out my view in relation to what findings I can and cannot make, and confirm that in respect of them I make no findings that these allegations are true. SK has a long history over many years of making allegations against her siblings when either in psychotic states, or less severe states of mental turmoil, and it is unwise, without good corroborative evidence, to accept her at her word in such matters. I note in any event, that Ms. B and Ms. GC did not regard the existence of the allegation as of itself a reason for inhibiting the reintroduction of contact to SR subject to SK’s wishes.

SR has, through her counsel, presented a careful and extensive list of proposed conditions designed to facilitate the reintroduction of contact, she having previously urged me to make a declaration that SK lacked the capacity to make decisions about contact with SR, and that it is in SK’s best interests to have contact with SR. Whilst I shall certainly make those declarations, it is not appropriate in my judgment at this time, to set up a detailed framework in which the applicant must operate. The current circumstances are too fluid, and will change radically once SK moves to WR. It would be unwise in my view for me to be too prescriptive, whilst recognising that I should in SK’s medium to long-term interests review the issue of contact at least once. I emphasise that nothing I here say should detract from the importance of continuing careful evaluation of SK’s wishes and feelings upon the matter.

Ms. W carried out her own “balance sheet” exercise of the kind adverted to by Thorpe LJ. (see paragraph 70 above) in considering the option of SK living with KS (or LU or MHAS) in the short or long-term, and identified, to use her terminology, as “burdens” the following:

The mother, MHAS and LU all sought to down-play or dismiss many if not all of these features, and to persuade me that insofar as they accepted some of these factors, the family had “moved on” and fully recognise the need to draw together and co-operate with each other in the interests of SK. I have given my findings above as to the likelihood of this historical pattern continuing.

The counter-benefits Ms. W identified in this scenario were:

I, like Sumner J., have found Ms. W’s analysis particularly useful in assessing not just the issue of where SK should live, but also in approaching the issue of the exercise of powers to determine whom SK should be seeing in her best interests, as well as how she should be seeing them. I accept and adopt her analysis. For the reasons partly given in this section of the judgment and partly in the preceding section where I considered issues of residence, I conclude that contact with KS, MHAS, LU and SR of the kind proposed by the applicant is in the best interests of SK, but I further direct that it is appropriate for the court to review this matter in a period of months, the review timing to be the subject of submissions after the handing down of this judgment.

The question arises as to the factors to be considered in determining the extent to which it will be lawful, and in SK’s best interests, having placed her in a residential establishment, for that establishment, on occasion, to restrict her liberty, whether to secure her continued residence there, or in connection with contact with others, or for some other reason.

The extensive learning on this topic was conveniently reviewed recently by Munby J in City of Sunderland v PS 2007 ECHC 623 between paragraphs 16 & 30. Of particular significance is the following passage at paras 22 & 23:

“In my judgment, proper compliance with section 6 of the Human Rights Act 1998 requires the judges to mould and adapt the inherent jurisdiction so that it is compatible with the requirements of Article 5, as well as with Article 8 (as to which see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292). In particular, and not least in the light of section 2(1)(a) of the Act (which provides that I "must take into account" decisions of the Strasbourg court), the inherent jurisdiction must be moulded and adapted to meet the strictures of the Strasbourg court in HL v United Kingdom (2004) 40 EHRR 761. In saying this I am fortified by Sedley LJ.’s observation in Re F (Adult: Court's Jurisdiction) [2000] 2 FLR 512 at page 532 that:

"One of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the so-called Bournewood gap in the protection of those without capacity."

The full implications of this are a matter for another day. Indeed, they can probably only be worked out on a case by case basis. For present purposes, and confining what follows to cases of the type with which I am here concerned, it seems to me that if the inherent jurisdiction is to be invoked to justify the detention of someone like PS in somewhere like the T unit, the following minimum requirements must be satisfied in order to comply with Article 5:

i)

The detention must be authorised by the court on application made by the local authority and before the detention commences.

ii)

Subject to the exigencies of urgency or emergency the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement. In other words, there must be evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate.

iii)

Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.”

As Mr. Bagchi (counsel for the Official Solicitor) has drawn to my attention, new provisions to address deprivation of liberty are contained in the Mental Health Act 2007, due to come into force as currently timetabled in April 2009. There is some doubt that implementation by this date will be achieved. The Act amends the 2005 Act by including provisions setting out when and in what circumstances it will be lawful to detain any person to whom the 2005 Act applies. In particular, a new draft section 4A provides as follows:-

“[4A Restriction on deprivation of liberty]

[(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.

(2)

But that is subject to--

(a)

the following provisions of this section, and

(b)

section 4B.

(3)

D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)

A relevant decision of the court is a decision made by an order under section 16(2) (a) in relation to a matter concerning P's personal welfare.

(5)

D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).]”

I need not set out 4B as irrelevant to this case.

Mr. Bagchi has further pointed out that in this case, particularly bearing in mind SK’s powerful wish to live with her mother, the whole issue of restricting her liberty is more likely than not to arise, but the precise arrangements being proposed by the applicant are not yet committed to a detailed care plan for my consideration. Once they are available, the issue of the legal framework within which they operate will need to be assessed in order to see whether SK’s proposed care arrangements in WR amount to a deprivation of her liberty in fact and in law. I agree.

Once again Munby J. has considered issues of this kind in the case of Surrey CC v JE and DE (2007) 2FLR 115 where, after a comprehensive review of the Strasbourg authorities he summarised the position thus [para 77]:

“Mr. Bowen, for whose submissions on this point I am particularly grateful, submits that the question whether a person is ‘deprived of his liberty’ within the meaning of Art 5(1) of the Convention can be stated in the following propositions:

(i)

There are three elements relevant to the question of whether in the case of an adult there has been a ‘deprivation’ of liberty engaging the State’s obligation under Art 5(1) (different considerations may apply in the case of a child where a parent or other person with parental authority has, in the proper exercise of that authority, authorised the child’s placement and thereby given a substituted consent):

(a)

an objective element of a person’s confinement in a particular restricted space for a not negligible length of time (Storck v Germany (2005) 43 EHRR 96, at para 74);

(b)

a subjective element, namely that the person has not validly consented to the confinement in question (Storck v Germany, at para 74);

(c)

the deprivation of liberty must be imputable to the state (Storck v Germany at para [89]).

 I need say no more about the third of these three matters for it is common ground that both the X home and the Y home are managed by SCC, a public authority.

(ii)

As regards the objective element:

(a)

The starting point must be the concrete situation of the individual concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of and a restriction upon liberty is merely one of degree or intensity and not one of nature or substance (Guzzardi v Italy (1981) 3 EHRR 333, at para 92, Nielsen v Denmark (1989) 11 EHRR 175, at para 67, HM v Switzerland (2002) 38 EHRR 314, at para 42, HL v United Kingdom (2004) 40 EHRR 761, at para 89 and Storck v Germany (2005) 43 EHRR 96, at para 42).

(b)

In the type of case with which I am here concerned, the key factor is whether the person is, or is not, free to leave (HL v United Kingdom (2004) 40 EHRR 761 at para 91). This may be tested by determining whether those treating and managing the person exercised complete and effective control over the person’s care and movements (HL v United Kingdom (2004) 40 EHRR 761, at para 91).

(c)

Whether the person is in a ward which is ‘locked’ or ‘lockable’ is relevant but not determinative (HL v United Kingdom (2004) 40 EHRR 761, at para 92).

(iii)

As regards the subjective element:

 (a)A person may give a valid consent to their confinement only if they have capacity to do so (Storck v Germany (2005) 43 EHRR 96, at paras 76 and 77).

(b)

Where a person has capacity, consent to their confinement may be inferred from the fact that the person does not object (HL v United Kingdom (2004) 40 EHRR 761, at para 93 and Storck v Germany (2005) 43 EHRR 96, at para 77, explaining HM v Switzerland (2002) 38 EHRR 314, at para 46).

(c)

No such conclusion may be drawn in the case of a patient lacking capacity to consent (HL v United Kingdom (2004) 40 EHRR 761, at para 90).

(d)

Express refusal of consent by a person who has capacity will be determinative of this aspect of ‘deprivation of liberty’ (Storck v Germany (2005) 43 EHRR 96, at para 77).

(e)

The fact that the person may have given himself up to be taken into detention does not mean that he has consented to his detention, whether he has capacity (Storck v Germany (2005) 43 EHRR 96, at para 75) or not (HL v United Kingdom (2004) 40 EHRR 761, at para 90). The right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention.

[78]   I agree with Mr. Bowen’s formulation which, within the inevitable limits of compression, seems to me to be an entirely accurate and indeed helpful encapsulation of the Strasbourg jurisprudence.”

Should I in the future have to determine this issue on the basis of the information set out in the care plan for SK, the above paragraph is a summary of the legal principles which I am happy to adopt.

Let me first set out the law as it is currently stated:

I have added emphasis to one phrase of the quotation in the immediately preceding paragraph for reasons which shall appear hereafter when I consider the arguments of the fifth defendant that the reasonably foreseeable consequences of sexual intercourse in the case of SK involve questions of whether or not she can foresee, leaving aside physical consequences, the possibility/probability of consequences for her psychiatric, social and emotional state, especially were she to become pregnant.

In MM v Local Authority X [2007] EWHC 2003 Fam: Munby J. returned to this subject, and at paragraph 87 said this:

“A woman either has capacity, for example, to consent to 'normal' penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z. So capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character – the sexual nature and character – of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse: see X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84]. It does not depend upon an understanding of the consequences of sexual intercourse with a particular person. Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific”

Dr. EAM and Dr. MS (two consultant psychiatrists who have assisted the court in this litigation) conferred as to their views on SK’s capacity to consent to sexual relations. They did so by court direction, for on their prior respective examinations of SK they had come to different conclusions as to her capacity on this subject. It is clear from the agreed note prepared by them (at D222/225) that they directed themselves as a matter of law in terms of the test set out above in paragraphs 128 and 130.

They concluded the following: she has a mental illness, and in her case her capacity can fluctuate over time, as SK’s presentation would confirm. She is a vulnerable patient easily prey to sexual exploitation and with a poor understanding of relationships in general, as well as limited ability to assess the intentions of others. They agreed there needs to be in place, in order to protect SK from exploitation, measures (unspecified) which will be of particular import during any periods of relapse in which she lacks capacity. The provision of contraception would not protect her from her underlying vulnerability whilst it may achieve the obvious result of protecting her from pregnancy (if not sexually transmitted diseases). They agreed that the temporary periods of incapacity to consent to sexual relations may cause significant management difficulties for those undertaking her care, and Dr. EAM was of the expressed view that these temporary periods of incapacity should not be allowed to prevent SK entering a sexual relationship should she so wish at other times. Dr. MS does not appear to associate herself with that view, at least in that document.

The totality of the psychiatric evidence in this case persuades me that SK has a fluctuating capacity to consent to sexual intercourse applying the tests set out by Munby J. in X City Council and MM v Local authority X (see above). If that were to be the test (as I consider it is at present) it would nevertheless be the consequences of the fluctuation of capacity which are far more exercising.

Ms. Morris on behalf of SR, suggests that Drs. EAM and MS do not consider in their respective reports and the agreed note (D222/5) factors which are present in the history of SK which of themselves require a re-consideration of the test. Those factors include the risk of significant deterioration in SK’s mental state should she become pregnant, she having suffered psychosis after giving birth to her only child; a suggested risk that her mental state, should she have an unsuccessful sexual or “romantic relationship,” would deteriorate; that she lacks any real understanding of the social and emotional consequences for herself of having sexual intercourse, whether it leads to a pregnancy or not (these are partly cultural arguments, and are to do with the previous history of what SR and the applicant say was the rejection of her by her family members, (save SR), when she was in non-marital sexual relationships); that she has false beliefs about, for example, whether or not she would be allowed to keep a baby should one be born to her (care proceedings under Part IV of the Children Act 1989 having been commenced following the birth of her one child); that any man who has sexual intercourse with her will, or is likely to, marry her; and her belief that she will only be happy when married and a mother, this last influencing her in whether or not to consent to intercourse; etc.

Ms. Morris first invites me to conclude that such is the nature of the foreseeable consequences (as summarised above) for SK of having sexual intercourse that the currently accepted test is too narrow and its application fails to protect this vulnerable woman. Secondly she submits, if I am against her first proposition, that even if I were to approach the issue of capacity on the basis of the current test referred to above, I should construe “reasonably foreseeable consequences of what is being done, or for any other reason” in section 30 (2) (a) (and subsequent sections which deal with consent) of the Sexual Offences Act 2003 (“the 2003 Act”) as invalidating any ostensible consent given by SK. Thirdly, if I decide that SK does have fluctuating capacity I should nevertheless invoke “the residual inherent jurisdiction” referred to in SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867. In the first two instances she invites me to declare that SK does not have the capacity to consent to sexual intercourse. In the third instance she invites me to grant such relief as would prevent SK having sexual relations until at the very least the position is determined in relation to contraception.

Ms. Morris originally advanced an argument which she encapsulates in the following paragraph of her opening document prepared for this hearing (AA224):

“Capacity to consent to sexual intercourse, where decisions are being made about the long term sexual conduct of an adult, cannot be required to be set at the criminal standard of capacity. This is because the matters that are relevant to a finding of capacity are far wider than the narrow ones identified under the criminal test. Should a capacity test with the usual situation-specific characteristics be applied then factors such as all the risks of sexual intercourse, including social, emotional and psychological risks, may be taken into account, it is submitted more closely following the types of matters that a person consenting to sexual intercourse capably would take into account.”

She accepts that the current test of capacity to consent to sexual intercourse at common law is as set out in the cases of X City Council v MB and MM v Local Authority X (see above). It is her submission that the omission in this case of consideration of capacity in the light of the wider set of factors (see paragraph 134 above) by the court would amount to a failure to protect this vulnerable young woman who cannot in truth consent. In the above quotation from her opening document she refers to “the criminal test” (section 30 (2) (a) etc. of the 2003 Act). She is, of course, also referring to the two decisions of Munby J. in which he was considering whether or not there should be a distinction as between criminal and civil law on the subject of the relevant test of ability to consent to sexual relations. I have already set out (although not in its extended form the full discussion undertaken by him on this subject) relevant paragraphs from X City Council v MB etc. and MM v Local Authority X. However, it is, in considering Ms. Morris’ argument, also worth setting out what Munby J. said at paragraph 89 of MM v Local Authority X:

“Moreover, and of equal if not greater importance, there are sound reasons of policy why the civil law and the criminal law should in this respect be the same, why the law should, as it were, speak with one voice and why there should not be any inconsistency of approach as between the criminal law and the civil law. In this context both the criminal law and the civil law serve the same important function: to protect the vulnerable from abuse and exploitation (see further below). Viewed from this perspective, X either has capacity to consent to sexual intercourse or she does not. It cannot depend upon the forensic context in which the question arises, for otherwise, it might be thought, the law would be brought into disrepute.”

In the face of the formidable analysis (which I accept and respectfully adopt) carried out by Munby J., how does Ms. Morris advance her case? I have set out the thrust of her argument in paragraphs 135 to 137 above. In her closing document she elaborates her submissions extensively. Before considering them insofar as I need to, it is necessary to look at aspects of the evidence, and insofar as any of that which follows is already referred to earlier I hope I may be forgiven.

The evidence establishes the following:

Ms. Morris argues that the phrase “reasonably foreseeable consequences” in paragraph 84 of X City Council v MB, NB and MAB (see paragraph 127 above) and those sections of the 2003 Act dealing with issues of consent, imports a wider test than that adopted by Munby J. in MM and MAB above. Whilst eschewing any intention of attempting to define the precise ambit of that phrase as it is used in those sections, which remains a matter for first instance trial judges and subsequently the Criminal Division of the Court of Appeal, I would be surprised if those words were found to import the necessity for an evidential analysis in the criminal sphere of the sort of wide-ranging material which has been arrayed by Ms. Morris in her attempt to establish that capacity to consent is not present, or cannot be established.

Ms. Morris has referred in the course of her submissions in respect of her first and second propositions to guidance jointly issued by the British Medical Association and The Law Society (Assessment of Mental Capacity, Guidance for Doctors and Lawyers). In one of the quotations provided for me to consider, the following phrase appears: “It should also be noted that different considerations apply in determining capacity to give valid consent of (sic) the criminal law, and particularly where it is alleged that a sexual offence has taken place …”. It is not at all clear to me, since the authors of that guidance appear to accept that the test of capacity is as set out in MAB, the basis upon which they make this suggestion. She further recites the passage where the authors consider that “the following factors may be relevant to an assessment of an individual’s capacity to consent to sexual relations …. the kind of relationship they have (for example if there is a power imbalance)”. It is entirely unclear from these passages as to whether or not the authors are simply adverting to a relationship where it is demonstrable that the individual’s will is so overborne by the other person that they cannot, in truth, have been said to consent, or that they may be said, for example, to be under duress (as given its extended meaning in recent years in the criminal jurisdiction), or whether they are positing some more elaborate enquiry as to the nature of the relationship between the two individuals. Whatever the answer to that conundrum, I do not find this guidance to be of particular help in illuminating the landscape of this case.

In considering Ms. Morris’ first proposition, I content myself with finding that her approach seems to me to be an unacceptable blurring of the distinction between tests of capacity and tests of best interests. It may well be that in the periods when Dr. EAM and Dr. MS consider that SK has capacity to consent to sexual intercourse, and does so, an objective view of her best interests might make her act of consenting, and any subsequent activity undertaken, extremely unwise, but the law has not yet come to the stage, and I hope never will, that it will seek to intervene to prevent acts on the part of the citizen which it does not consider to be in that citizen’s best interests which are nevertheless lawful acts and which the citizen has the capacity to agree to. This is not to say that the State (here the applicant and/or the court) should not as part of its care plan for SK, in undertaking what will undoubtedly be very difficult management issues in relation to her behaviour, provide extensive advice and support to her, including advice on the possible/probable consequences of her having sexual relations when she is capable in law of making the decision so to do.

In arguing her second proposition, Ms. Morris seeks to argue on behalf of SR that:

“Alternatively, in SK’s case, it must be accepted that the reasonably foreseeable consequences of sexual intercourse in her case do involve the risks to her mental health identified above, and/or that her consent is based on false beliefs which automatically vitiate her consent. The Court might then find that, even applying the narrow, criminal test of lack of capacity, SK does lack capacity to consent to sexual intercourse and may then grant the necessary consequential relief.” [Emphasis supplied.]

Is the State (in the form of her carers/the court) to be put in the position of having to consider and judge minutely the nature of the acts proposed by SK in pursuit of sexual intercourse, and/or the realism of her beliefs or otherwise in relation to the intentions of the person with whom she wishes to have sexual intercourse? Once again, in my judgment, this represents confusion on the part of Ms. Morris between the capacity to consent in law, and the separate question of whether or not any choices made by someone with capacity are wise when considered in the light of the best interests test. The “false beliefs” upon which Ms. Morris relies (for example that the chosen male is in love with SK, and /or will marry her) are of a type, she submits, fatally to undermine SK’s consent even on the currently accepted test. Sadly, many young women in society who do not suffer from the particular afflictions of SK similarly persuade themselves as to the attitude and intentions of their man towards them. These factors go to the issue of the wisdom or otherwise of choosing to have sexual relations but cannot essentially, in my view, undermine the consent given when the person has capacity.

I have already made my views clear in relation to her second proposition in recording my agreement with Munby J. (see his analysis referred to in paragraphs 128, 130 and 137 above). I only add that if SK has the capacity to consent to sexual relations in the way the civil law currently defines the issue of consent, then for my part I cannot see how it is lawful to intervene in the exercise of her choice to undertake lawful (even if unwise) acts. I respectfully adopt the approach of Munby J. as to the necessity for there to be similarity of essential approach to consent in the criminal and civil law for the public policy reasons he refers to.

Turning to her third proposition, namely that even if I consider that SK does have capacity I should invoke the residual inherent jurisdiction of this court to protect this vulnerable young woman at least until the position in relation to contraception is clear. She goes on to submit that the risks of pregnancy for SK are “crucially relevant to making decisions about sexual intercourse”. In this context it is necessary to consider the findings of fact made in relation to SK as set out in paragraph 139 above. In addition to those factors I note, and accept, the evidence of the applicant that even though currently housed in a residential home of mixed sexes, she has shown no inclination, despite her high sex drive, to establish sexual relations of any kind, let alone intercourse, with any of the male residents. In WR, also a home for mixed sexes, I can feel a degree of confidence that the levels of care and vigilance of the staff, combined with SK’s apparent current lack of interest in establishing any sexual relations with any male other than her husband, are such that the risk of them occurring is acceptably low, and even when that care is undertaken (surreptitiously or otherwise) during her periods of capacity to consent, the likelihood of a pregnancy occurring as a result is also minimal. I appreciate that this cannot be guaranteed.

Mr. Bagchi helpfully draws my attention to paragraphs 76 to 79 of Re. SA (Vulnerable Adult With Capacity: Marriage) [2006] 1 FLR 867. They are as follows:

“[76] In the light of these authorities it can be seen that the inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision about the matter in hand and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction, in my judgment, extends to a wider class of vulnerable adults. 

[77]   It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. 

[78]   I should elaborate this a little: 

(i)

Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint, even if the restraint is only of the kind referred to by Eastham J in Re C (Mental Patient: Contact). It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.

(ii)

Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances referred to by the Court of Appeal in Re T (Adult: Refusal of Treatment), where a vulnerable adult’s capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add, with reference to the observations of Sir James Hannen P in Wingrove v Wingrove (1885) 11 PD 81, of the Court of Appeal in Re T (Adult: Refusal of Treatment), and of Hedley J in Re Z (Local Authority: Duty), that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as Butler-Sloss LJ put it, be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.

(iii)

Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult’s understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.

[79]   I am not suggesting that the jurisdiction can only be invoked if the facts can be forced into one or other of these headings. Quite the contrary. Often, indeed, the facts of a particular case will exhibit a number of these features. There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he or she is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.” [Emphasis supplied].

I, like Mr. Bagchi, do not read paragraph 79 quoted above, (and particularly the passage to which I have added emphasis) as supporting a proposition that the court possesses jurisdiction to prevent SK having sexual intercourse with any potential partner if it is considered by others not to be in her best interests so to do. Munby J. was, I respectfully suggest, simply indicating that there are instances where a person cannot in truth consent although not incapacitated within the meaning of the 2005 Act. He was, I suggest, talking of persons who are deemed not to have capacity in the true sense, and not of persons where a paternalistic authority considers the Acts unwise. Once again, it seems to me to be a wholly disproportionate interference with her rights to respect for her private and family life, of which sexual relations are a significant aspect, to invoke a protective jurisdiction of this kind. I therefore reject her third option.

I do, however, agree with Ms Morris, and no-one dissents from this proposition, that SK’s carers should be provided with a “clear list of the indicators of a possible loss of capacity to make decisions about sexual intercourse” or other sexual contacts, so that they may i) recognise them and ii) act consistently with her other carers in establishing where the dial points on the barometer of capacity.

Given SK’s powerful urge to have a child and care for it, the issue of her capacity to understand the issues in relation to contraception and if she lacks it what should be done, obviously arises.

The evidence in the case is unhappily confused and in significant measure obscure. Although everybody appeared to operate on the basis that SK had at one time received contraception in the form of injections and/or orally, the documentation now suggests that a number of years ago an IUD contraceptive device was fitted. Apparently, scans have not picked it up subsequently, and there is a real question mark as to whether it exists or not. Even if it does, it is the expert evidence, which I accept, that it is time for it to come out. Should it be replaced with a new one?

Given the imminence of the oophorectomy, in the course of which it may be revealed as to whether or not an IUD is fitted, and which in any event may have implications for her fertility (less sure), it is agreed by all parties that it is too early to come to a determination on the issues of capacity and best interests on this subject. I agree, and thus the matter will have to be restored to court in due course. I shall hear submissions as to when, at the hearing following on immediately after this judgment is handed down.

Ms. W invited the court to consider the appointment of a Personal Welfare Deputy with powers limited to the authorisation and monitoring of any deprivation of liberty considered necessary and appropriate, for example in relation to ensuring that SLK remains resident at WR. The post would be time-limited until April 2009, thought to be the date upon which amendments to the 2005 Act brought in to force by the Mental Health Act 2007 will commence. This suggestion received no support from any quarter.

Were I to be appointing such a Deputy, I would be exercising my powers as a member of the Court of Protection, and would have to be satisfied that the appointment of a Deputy is to be preferred over the statutory scheme provided for in section 16 (4) of the 2005 Act (namely making declarations). Furthermore, as is pointed out by Ms. Morris, a Deputy does not have the power to terminate contact (see section 20 (2) of the 2005 Act) a power which may be necessary in this case, albeit exercised very sparingly. Ms Morris also points out that any Deputy parachuted into this particular case would, in all likelihood, fail to understand the powerful personalities and feelings engendered by the history of this family at least until in post for a significant period.

As the Deputy Official Solicitor suggests in her report, I should take a purposive view of the Mental Health Act 2007 provisions which provide a more rigorous framework for overseeing issues such as deprivation of liberty; the current limited authorisation of a Personal Welfare Deputy simply does not cover the needs envisaged. The appropriate way forward is for vigilant monitoring by the staff of WR and by return to court if the circumstances prove a need for further declarations/intervention, until such time as the 2007 Act comes into force.

I have already made clear that contact, possible issues of deprivation of liberty, and contraception will have to return to court for re-consideration and/or review.

I invite counsel to draw up the necessary declarations, orders and injunctions (these last referred to in paragraph 8 above) necessary to put into effect the matters dealt with above.