G v E & Ors

The starting point for any discussion of the legal principles arising in this case is the European Convention for the Protection of Human Rights and Fundamental Freedoms, incorporated into our law following the implementation of the Human Rights Act 1998, and in particular Articles 5 and 8. Although well known, it is useful to set out the provisions of these Articles in full.

Article 5, headed “Right to Liberty and Security”, provides as follows.

For the last twenty years, the High Court has exercised a jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests. The history of the development of that jurisdiction, starting with the decision of the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, is traced by Munby J. (as he then was) in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2941 (Fam) [2006] 1 FLR 86. As Munby J. observed in that case, the jurisdiction “is, in substance and reality … [and] for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children”. In exercising that jurisdiction, it is, in the words of Munby J. in Re SA, repeated in Re PS(Incapacitated or Vulnerable Adult)[2007] EWHC 623 (Fam), [2007] 2 FLR 1083 “elementary that the court exercises its powers by reference to the incompetent adult’s best interests”.

In Re PS Munby J. considered an application under the inherent jurisdiction in respect of an elderly woman whose daughter was proposing to discharge her from hospital into her own care rather than to a residential unit where she had lived for some months and which had been agreed at a meeting convened by the local authority attended by the daughter as suitable to meet her needs. Munby J. stated that it was “quite clear that a judge exercising the inherent jurisdiction … has power to direct that … the adult in question shall be placed in a specified institution … and … that the court’s powers extend to authorizing that person’s detention in such a place and the use of reasonable force (if necessary) to detain him” (paragraph 16). However, “detention … will inevitably involve a ‘deprivation of liberty’ as that expression is used in Article 5” and “[s]ince the court is a public authority for this purpose (see s. 6(3)(a) of the Human Rights Act 1998), any exercise of its inherent jurisdiction must … be compatible with the various requirements of Article 5” (paragraph 18). Consequently, in cases of the type with which he was concerned in PS,

“the following minimum requirements must be satisfied in order to comply with Article 5: (i) The detention must be authorized 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 authorizing 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 to warrant compulsory confinement” (paragraph 23).

He also observed that considerations borne in mind in cases under the inherent jurisdiction concerning the detention of children were applicable mutatis mutandis when deciding whether to make such orders in respect of incapacitated or vulnerable adult. These considerations included: (i) that the regime proposed should accord with expert opinion, (ii) that the degree of force authorized should be the minimum required, (iii) that a maximum period of detention should be specified, and (iv) that dates should be fixed for the further review of the matter by the court.

Munby J’s analysis is drawn to a considerable extent from the leading European case of Winterwerp v The Netherlands (1979-80) 2 EHRR 387. In that decision, the European Court held that except in emergencies, depriving the liberty of someone of unsound mind can only be lawful under Article 5(1)(e) if three minimal conditions are satisfied – (1) the authority responsible for the deprivation of liberty must establish through objective medical expertise that the person is of unsound mind; (2) it must be established that the mental disorder is a kind or degree warranting compulsory confinement; (3) the validity of continued confinement depends upon the persistence of mental disorder.

In 2005, Parliament enacted the Mental Capacity Act (“the MCA”) designed to provide a statutory regime for the protection of persons with mental incapacity (as opposed to mental disorder, in respect of whom there was already a statutory regime in place under the Mental Health Act 1983.) The MCA contained provisions, inter alia, for lasting powers of attorney, a new official called the Public Guardian, and a reformed Court of Protection entrusted with the responsibility of making decisions on behalf of persons who lack capacity concerning their personal welfare, property and affairs. Around the time the MCA was enacted, however, a decision of the European Court of Human Rights necessitated further significant reform.

In R v. Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening) [1998] UKHL 24, [1999] AC 458, a man (HL) was admitted to hospital and retained there against the wishes of his carers, without the health care professionals using their statutory powers of detention under the Mental Health Act 1983. The House of Lords held that under the common law doctrine of necessity there was power to detain and restrain patients who lack capacity and where detention was necessary in their own best interests. In his speech, however, Lord Steyn identified the existence of a lacuna, which has come to be known as “the Bournewood Gap”. “The common law principle of necessity is a useful concept but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrists... [N]either habeas corpus nor judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients.” HL’s carers applied to the ECtHR, which held that HL had been deprived of his liberty and that there had been a breach of Article 5(4) in that the use by the doctor of the common law doctrine of necessity, instead of statutory powers to detain, did not meet the requirement in Article 5(1)(e) that such a detention must be carried out in accordance with a procedure prescribed by law: see HL v The United Kingdom(2004) 40 EHRR 761. As pointed out by Mr. Neil Allen, counsel for F in this case, in a helpful and interesting article “Restricting movement or depriving of liberty?” (Journal of Mental Health Law, Spring 2009, p19-32), the key issue was whether the detention was arbitrary. There was no procedure requiring medical or other assessments to justify the admission or subsequent detention.

As a result of the decision in HL, the government decided to plug the Bournewood Gap by inserting into the new MCA (via a further statute, the Mental Health Act 2007) a complex new procedure to avoid such arbitrariness.

The major change introduced by the 2007 amendments was the so-called Deprivation of Liberty Safeguards (“DOLS”), a title clearly derived from Article 5 of ECHR. This procedure is set out in a new Schedule A1 (entitled “Hospital and Care Home Residents: Deprivation of Liberty”) added to the MCA and consisting of no fewer than 188 paragraphs. In addition, further amendments extended and adjusted the powers of the Court of Protection in respect of cases involving deprivation of liberty. For the purposes of this judgment, it is only necessary to cite relatively few provisions from the MCA as now amended.

S. 1 sets out the basic principles underpinning the MCA. S.1(2) provides that “a person must be assumed to have capacity unless it is established that he lacks capacity”. S.1(5) provides that “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests”. S1(6) states that “before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action”. S.2(1) provides that “for the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

S.4 sets out the criteria for a best interests decision.

“(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.

….

(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 sub-section (6).

(8)

The duties imposed by sub-sections (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 sub-sections (1) to (7) he reasonably believes that what he does or decides is in the best interests of the person concerned.

….

(11)

'Relevant circumstances' are those -

(a)

of which the person making the determination is aware, and

(b)

which it would be reasonable to regard as relevant.”

S.4A, entitled “Restriction on deprivation of liberty”, provides:

“(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 [concerning life-sustaining treatment].

(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).”

S.15(1) provides that the Court may make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. S.15(2) provides that “act” includes an omission and a course of conduct.

S. 16, entitled “Powers to make decisions and appoint deputies: general”, provides as follows:

“(1)

This section applies if a person (‘P’) lacks capacity in relation to a matter or matters concerning:

(a)

P’s personal welfare, or

(b)

P’s property and affairs.

(2)

The Court may –

(a)

by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters,

(b)

appoint a person (a ‘deputy’) to make decisions on P’s behalf in relation to the matter or matters.

(3)

The powers of the Court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).

(4)

When deciding whether it is in P’s best interests to appoint a deputy, the Court must have regard (in addition to the matters mentioned in section 4) to the principles that:

(a)

a decision by the Court is to be preferred to the appointment of a deputy to make a decision; and

(b)

the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

(5)

The Court may make such further orders or give such directions and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6)

Without prejudice to section 4, the Court may make the order, give the directions or make the appointment on such terms as it considers are in P’s best interests, even though no application is before the Court for an order, directions or an appointment on those terms.

(7)

An order of the Court may be varied or discharged by a subsequent order.

….”

Under s.16A(1), “if a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived. S.16A(4)(a) provides that, for the purposes of that section, Schedule 1A [not to be confused with Schedule A1] applies for determining whether or not P is ineligible to be deprived of liberty. Schedule 1A makes ineligible certain categories of mental health patient. It is agreed that E does not fall into any of those categories. S.17 provides that the powers under s.16 as respects P’s personal welfare extend in particular to, inter alia, “(a) deciding where P is to live and (b) deciding what contact, if any, P is to have with any specified person.”

S. 48 gives the Court the power to make an interim order by providing “the Court may, pending the determination of an application to it in relation to a person ('P'), make an order or give directions in respect of any matter if (a) there is reason to believe that P lacks capacity in relation to the matter, (b) the matter is one to which its powers under this Act extend, and (c) it is in P's best interests to make the order, or give the directions, without delay”.

Of the 188 paragraphs in Schedule A1, only the following paragraphs (relating to authorisation to deprive hospital and care home residents of liberty) are relevant to this case. Under paragraphs 1 and 2 of Part 1, the managing authority of the hospital or care home may deprive a person (“P”) of his liberty by detaining him if three conditions are satisfied - that P is detained in a hospital or care home, for the purpose of being given care or treatment, in circumstances which amount to deprivation of liberty; that a standard or urgent authorisation is in force; and that that authorisation relates to P and the hospital or care home in which he is detained. For these purposes, paragraph 178 provides that “care home” has the meaning given by s 3 of the Care Standards Act 2000, namely an establishment that provides accommodation, together with nursing or personal care, for persons who, for example, are ill, mentally disordered or disabled. Part 3 (paragraphs 12 to 20) identifies six “qualifying requirements” that have to be met for standard authorisations, namely the age requirement, the mental health requirement, the mental capacity requirement, the best interests requirement, the eligibility requirement, and the “no refusals” requirement. The age requirement is met if P is aged 18. The mental health requirement is met if P is suffering from a mental disorder within the meaning of the Mental Health Act 1983 but disregarding any exclusion for persons with learning disability. The mental capacity requirement is met if P lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of having the relevant care or treatment. The best interests requirement is met if the following conditions are satisfied – that P is, or is to be, a detained resident; that it is in P’s best interests to be a detained resident; that in order to prevent harm to P, it is necessary for him to be a detained resident; and that for him to be a detained resident is a proportionate response to the likelihood of P suffering harm and the seriousness of that harm. The eligibility requirement is met unless P is ineligible to be deprived of liberty under Schedule 1A. The no refusals requirement is met unless P has made a relevant and valid advance decision declining some or all of the relevant care or treatment. Part 4 of the Schedule provides the procedure for requesting and giving a standard authorisation, including in paragraphs 38 to 45 provisions for an assessment whether P meets the best interests requirement. Part 5 provides the procedure for an urgent authorisation.

Part 8 governs the review of standard authorisations. In GJ v A Foundation Trust [2009] EWHC 2972 (Fam), Charles J. observed that these statutory provisions for review of standard authorisations were matters that the Court of Protection should take into account in determining whether it should make an order authorising the deprivation of P’s liberty, and if so the extent and period of such an authorisation having regard to the authorities relating to the need for review of a deprivation of liberty based on the exercise of the inherent jurisdiction, in particular the decisions of Munby J. in Re PS (supra) and DE v JE and Surrey CC [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150.

The powers of the Court in relation to Schedule A1 are set out earlier in the Act at s.21A:

“(1)

This section applies if either of the following has been given under Schedule A1–

(a)

a standard authorisation;

(b)

an urgent authorisation.

(2)

Where a standard authorisation has been given, the court may determine any question relating to any of the following matters–

(a)

whether the relevant person meets one or more of the qualifying requirements;

(b)

the period during which the standard authorisation is to be in force;

(c)

the purpose for which the standard authorisation is given;

(d)

the conditions subject to which the standard authorisation is given.

(3)

If the court determines any question under subsection (2), the court may make an order–

(a)

varying or terminating the standard authorisation, or

(b)

directing the supervisory body to vary or terminate the standard authorisation.

(4)

Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters–

(a)

whether the urgent authorisation should have been given;

(b)

the period during which the urgent authorisation is to be in force;

(c)

the purpose for which the urgent authorisation is given.

(5)

Where the court determines any question under subsection (4), the court may make an order–

(a)

varying or terminating the urgent authorisation, or

(b)

directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.

(6)

Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7)

An order under subsection (6) may, in particular, exclude a person from liability.”

S.64(5) provides that references to “deprivation of liberty” in the MCA have the same meaning as in Article 5(1) of ECHR. Paragraph 64(6) provides that for the purposes of such references it does not matter whether P is deprived of his liberty by a public authority or not.

Guidance on the MCA is set out in the Mental Capacity Act 2005 Code of Practice which in turn has been supplemented by the Deprivation of Liberty Safeguards Code of Practice 2008. Paragraph 5.13 of the main MCA Code of Practice sets out a checklist of factors that need to be taken into account in working out what is in a person’s best interests. Paragraph 4.61 of the 2008 Code inserts into that checklist additional factors that apply when considering interests around deprivation of liberty, namely (i) whether any harm to the person could arise if the deprivation of liberty does not take place (ii) what that harm would be (iii) how likely that harm is to arise (i.e. is the level of risk sufficient to justify a step as serious as depriving a person of liberty?) (iv) what other care options there are which could avoid deprivation of liberty, and (v) if deprivation of liberty is currently unavoidable, what action could be taken to avoid it in future.

The passing of these substantial amendments to the MCA, and the introduction of a comprehensive statutory regime for the authorization and control of placements that amount to a deprivation of liberty, means that the Court’s protective inherent jurisdiction has been substantially superseded. In GJ v A Foundation Trust [2009] EWHC 2972 (Fam), Charles J identified one of the jurisdictional issues remaining unresolved as “what, if any, inherent jurisdiction the Court of Protection has and whether the High Court retains its inherent jurisdiction in this area or whether it has been suspended by the MCA” (paragraph 23). Manifestly, however, there are decisions under that jurisdiction which contain guidance that assists in the interpretation and application of the new statutory powers, in particular their compliance with Article 5. In addition, the statutory regime, although comprehensive, does not address every issue, and so it is arguable, as Mr. Allen submits, that where the MCA cannot provide an answer, the Court of Protection should draw upon the principles established under the inherent jurisdiction.

So far as best interests are concerned, Mr. Allen drew my attention to two important recent judgments of Munby J. As to the factors taken into account when assessing best interests, Munby J. made the following observations in ITW v Z and others [2009] EWHC 2525 at paragraph 32:

“The first is that the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s “best interests”. The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight. The third, following on from the others, is that there may, in the particular case, be one or more features or factors which ... are of ‘magnetic importance’ in influencing or even determining the outcome ...”

Secondly, in what Mr. Allen describes as “a particularly telling passage” in Re MM (An Adult) [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paragraph 120, Munby J. observed:

“The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good - in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

So much for the basic legal framework. The lengthy submissions presented to me raise a number of legal points to which I now turn.

On this crucial point there is complete agreement between the parties. It is accepted by all parties, including the Official Solicitor representing E, that the disabilities which he experiences as a result of his condition of tuberous sclerosis, in particular profound learning difficulties, deprive him of the capacity to make decisions about his life, such as where he should live. It is important to stress that E does have wishes and feelings which the court must take into account as part of any best interests assessment, and that he has a right to be consulted about decisions concerning him. These factors are important features of his personal autonomy protected by Article 8. But for the purposes of this case, I am satisfied that E lacks capacity within the meaning of s.2(1) of the MCA.

As s.64(5) provides that references to “deprivation of liberty” in the MCA have the same meaning as in Article 5(1) of ECHR, any analysis of whether E has been in fact deprived of his liberty must have close regard to the jurisprudence of the European Court and of English courts on the interpretation of that Article. That jurisprudence makes clear that when determining whether there is a “deprivation of liberty” within the meaning of Article 5, three conditions must be satisfied, namely (1) an objective element of a person’s confinement in a particular restricted space for a not negligible time; (2) a subjective element, namely that the person has not validly consented to the confinement in question, and (3) the deprivation of liberty must be one for which the State is responsible : see Storck v Germany (2005) 43 EHRR 96 and JE v DE and Surrey CC [2006] EWHC 3459 (Fam) [2007] 2 FLR 1150. When considering the objective element, the starting point is to examine 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 of liberty is merely one of degree or intensity and not one of nature or substance: Guzzardi v Italy (1980) 3 EHRR 333; Storck v Germany (supra). The key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the person exercise complete and effective control over the person’s care and movements: HL v United Kingdom (supra). So far as the subjective element is concerned, whilst there is no deprivation of liberty if a person gives a valid consent to their confinement, such consent can only be valid if the person has capacity to give it: Storck v Germany (supra). So far as the third element is concerned, regardless of whether the confinement is effected by a private individual or institution, it is necessary to show that it is imputable to the State. This may happen by the direct involvement of public authorities or by order of the court.

Mr. Y, the manager of X Ltd, did not accept that his organisation was depriving E of his liberty. He thought he was improving his quality of life, and he may well be right. In my judgment, however, the current care provision for E undoubtedly deprives him of his liberty. Staff at Z Road exercise what the Official Solicitor describes as complete control over E’s care and movements, and over assessments, treatment, contacts and residence. As Mr. Allen points out, the concrete situation is that E is currently confined to Z Roadexcept when he is escorted to school or on visits or activities, and has no space or possession that is private or safe from interference or examination. Miss Street, counsel for the Official Solicitor, observed that E is unable to maintain social contacts because of restrictions placed on access to other people, including family members, and a decision has been made by the local authority that he will not be released into the care of others, or permitted to live elsewhere, unless such a move is considered appropriate. In assessing whether he is at liberty, it is also important to note that E has been prescribed Haloperidol, a neuroleptic medication, to reduce his agitation and more challenging behaviour. He has no control over the administration of that medication.

In those circumstances, it is not disputed by the local authority that E has been deprived of his liberty while at the V Unit and Z Road. I agree.

Here again, since s.64(5) provides that references to “deprivation of liberty” in the MCA are to have the same meaning as in Article 5(1) of ECHR, consideration of whether the deprivation of E’s liberty was lawful must have close regard to the European jurisprudence.

It is a cardinal feature of Article 5 that “no one shall be deprived of his liberty save … in accordance with a procedure prescribed by law”. The removal of E from F’s care was an arbitrary act. There was no attempt to follow the legal procedure of urgent and standard authorisations which had become law only a few days earlier. All parties now agree that in the absence of any authorisation under Schedule A1 of the MCA, or any order of the Court under that Act, E was unlawfully deprived of his liberty when placed at the V Unit and Z Road. In particular, the local authority now accepts that significant mistakes were made in this matter. It failed to recognise that E’s placement in the V Unit amounted to a deprivation of liberty to which the DOLS applied. Furthermore, it failed to recognise that the placement at Z Road constitutes a deprivation of liberty and that it should have sought approval from the Court under s.16 before it occurred. It must be noted, however, that the local authority took a very long time to acknowledge these grievous errors. The solicitors’ correspondence reveals that the authority was maintaining that DOLS did not apply in this case up to and beyond the start of these proceedings. I suspect that it was only when they read the analysis set out in Mr. Read’s report that they realised their mistake. In fairness, I should record that little if any blame attaches to Miss T. In evidence, she told me about the paucity of training she had received on the MCA. Although she has requested training from her employers on the DOLS procedures, (which, it will be recalled, are set out in a schedule running to 188 paragraphs plus a Code of Practice), she has yet to receive it. The responsibility for the blatant errors that occurred in this case clearly lies higher up the line of management.

I therefore hold that by removing E from F’s care, placing him at the V Unit and then moving him to Z Road without complying with the procedures laid down in the MCA, either the DOLS procedure in Schedule A1 or an application to the court under ss 16 and 48, the local authority infringed E’s rights under Article 5 ECHR. The Official Solicitor seeks a declaration to this effect on E’s behalf under MCA s15(1)(c).

Article 8 guarantees, inter alia, “respect for” private life, family life, and one’s home. Whether or not “family life” exists depends upon the facts and the real existence of close personal ties: K and T v Finland(2001) 36 EHRR 255, [2001] 2 FLR 707. In the words of Munby J. in Sheffield City Council v S [2002] EWHC 2278, “in our multi-cultural and pluralistic society the family takes many forms … The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what until comparatively recently would have been recognised as the typical nuclear family. But – and this is the point - the family, whatever form it takes, is the bedrock of our society and the foundation of our way of life.” It is well established that relationships between children and foster parents or carers fall within the definition of “family” within the meaning of Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36, and such a relationship does not come to an end when a child reaches the age of majority: Sheffield City Council v S (supra).

There is, as Miss Irving QC and Mr. Mackley readily concede on behalf of the local authority, no evidence that, at the time E was removed on 7 April 2009, there was any sort of balancing exercise performed of the positives and negatives of that removal and, in particular, the impact upon him of the disruption to his family life. He had been with F for many years and undoubtedly this should have been considered before making any decision to remove. The local authority adhere to the position that his removal at that stage was justified, given the concerns that had been raised by the educational psychologist and the further incidents that came to light during Miss T’s conversations with F, but it recognises that in reaching the decision whether or not to remove him, consideration should have been given to all matters, including the effect of removing him from his home and settled family life. Had the local authority carried out a best interests analysis at that stage, proper consideration would, or should, have been given to those matters. In fact, during the currency of the safeguarding investigation, a number of meetings took place during the investigation which could arguably be construed as best interests meetings but were not regarded as such. Somewhat surprisingly, the team manager in the adult placement team, Miss A, told me in evidence that she thought it was considered in all the documents that E had a family life with F. She insisted that this had been taken into consideration. Miss Bretherton, counsel for G, drew her attention to a letter dated 14 July from the local authority to F’s solicitors in which it was asserted: “whilst we appreciate that your client may have developed a positive and strong relationship with E over the past ten years, she is not a family member and she was financially remunerated for the services she provided to E”. Miss A conceded that this is “not how I would have put it”.

Notwithstanding Miss A’s evidence, the local authority through counsel accept that at none of those meetings was any proper comprehensive welfare analysis carried out. Had that happened, it ought to have recognised the ongoing disruption to E’s family life. There was, in my judgment, a deplorable failure to take into account the close relationship between E and F, the need to sustain that relationship, and a consequent failure to arrange any contact for several months between this vulnerable young man and the person who had been his carer – his mother-figure – for most of his life

On behalf of the Official Solicitor representing E, Miss Street makes an even stronger submission. Given the circumstances that pertained on 7 April, she contends that it is likely that, if properly handled by the local authority, the matter would have come to this Court at an early stage. Either the local authority would have given an authorisation under DOLS which F would have challenged in accordance with the procedure under the MCA or the local authority, realising the difficulties of the case, would itself have applied to the Court at the outset for an order under s.16. Miss Street submits that, had the matter been referred to the Court before the removal, it is likely that E would not have been removed from F’s pending the investigation. The local authority felt, however, that it was appropriate to move E to an emergency respite facility given safeguarding concerns that had been raised by the school and the educational psychologist, and in the opinion of Mr. Read, the independent social worker, this was an appropriate action for the authority to take while the safeguarding investigation took place. I think it is difficult to say at this distance whether or not this Court, faced with the allegations as they were known immediately after 7 April, would have sanctioned E’s removal from F’s care. There is, however, a significant chance that it would have refused to do so.

Furthermore, Article 8 imposes a positive obligation on the state to adopt policies that are affirmatively designed to secure a private life among private citizens: X and Y v The Netherlands (1986) 8 EHRR 235, Marckx v Belgium (1979-80) 2 EHRR 330. It is well established in children’s law that Article 8 affords families who are involved in care proceedings or the subject of care orders not merely substantive protection against any inappropriate interference with their family life but also what Munby J. in Re G (Care : Challenge to Local Authority’s Decision) [2003] 2 FLR 42 at paragraph 30 described as “significant procedural safeguards”. In W v UK (1988) 10 EHRR 29, the European Court articulated what Munby J. in Re G characterised as “the fundamental rule”, namely that “[t]he decision-making process must … be such as to secure that [the parents’] views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them …. [W]hat therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of article 8”. As Munby J. has said, in Re L (Care : Assessment : Fair Trial) [2002] 2 FLR 730 (at paragraph 88) and again in Re G (at paragraph 35), in relation to the procedural requirements imposed by Article 8, the protection afforded is not confined to unfairness in the trial process but extends to guarantee fairness at all stages of child protection.

In my judgment, precisely the same principles apply in cases concerning incapacitated adults. Article 8 gives the families of such adults (and by “families” I include relationships between such adults and long-term foster carers) not only substantive protection against any inappropriate interference with their family life but also procedural safeguards including the involvement of the carers in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of the families’ interests. If they have not, there will have been a failure to respect the family life of the incapacitated adult (and of course the carer.)

There was no adequate involvement of F in the decision to remove E from her care. Furthermore, as Miss T conceded in evidence, the local authority did not ask either F or any family member for their views when the decision was taken to move E from the V Unit into Z Road. They had no contact with G for some time, and they did not speak to F because they considered, having regard to the reports received, that E needed a placement in residential care.

For these reasons I find that the removal from F’s care, the failure to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter, the failure adequately to involve F in the decision-making process about E’s future, and the impediments to contact between E and F for several months after his removal constituted a serious breach of his Article 8 rights. The Official Solicitor seeks a further declaration to this effect on E’s behalf under MCA s15(1)(c).

The Official Solicitor contends that the overall consequences of the local authority’s errors are threefold. First, E was removed from his home in the interim when he should not have been, without lawful authority, in breach of his procedural Article 5(1) and 8 rights, and this position was not authorised by the court for approximately 8 months. Secondly, E was removed from home in the interim when he should not have been, in breach of his substantive Article 5(1) and 8 rights. Thirdly, to E’s detriment, the decision which the Court (and the Official Solicitor in considering his position on E’s behalf) faces now is more difficult and finely balanced than the decision it would have faced in April 2009. Then, submits the Official Solicitor, the evidence would not have justified an immediate move away from F. Now, the decision must take into account all the uncertain factors associated with one or more further moves. Save that I am unable to say whether or not the Court would have sanctioned the removal in April 2009, I accept the Official Solicitor’s analysis. The errors perpetrated by the local authority in this case are grave and serious.

There is a short further point to be considered here. Mr. Allen and Miss Bretherton submit that, as Ryder J. expressly stated in the recital to the order of 8 December that he was making no findings on the issues of deprivation of liberty or best interests, his order did not make E’s ongoing detention lawful, and as a result he remains unlawfully deprived of his liberty.

However, in paragraph 4 of that order, Ryder J. declared that “pending determination of the interim issue listed for hearing in January 2009 [sic], (or such other date as the interim issue is determined) it is in E’s best interests to reside at his current address ….” On behalf of the Official Solicitor, Miss Street submits that the effect of paragraph 4 was to make lawful E’s deprivation of liberty pending the interim hearing. Under s.4A(3): “D [i.e. in this case X Ltd and / or the local authority] may deprive P [i.e. E] of his liberty if, by doing so, D is giving effect to a relevant decision of the court.” Under s.4A(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”. Under s.48, the court may, pending the determination of the application, make any order if the matter is one to which its powers under this Act extend. Paragraph 4 of Ryder J.’s order was thus, submits Miss Street, a “relevant decision of the court”. Any subsequent deprivation of liberty was thus in accordance with a procedure prescribed by law, although she suggests that, as a matter of good practice, Ryder J. could have added, so it was clear on the face of the order, that any deprivation of liberty to give effect to the decision of the court was authorised by virtue of MCA s.4A(3) and (4).

I agree with Miss Street’s submission. By virtue of paragraph 4 of Ryder J.’s order of 8 December 2009, E’s subsequent deprivation of liberty has been in accordance with a procedure prescribed by law and thus not unlawful.

Miss Street added a submission that, notwithstanding the fact that the current deprivation is not unlawful, the fact that E is being deprived of his liberty is entirely attributable to the wrongful actions by the local authority. Thus any compensation that may hereafter be awarded to him may extend to this ongoing deprivation. I express no concluded view about this point in this judgment.

Before turning to the best interests assessment I have to perform, there are four further legal points that have been raised relevant to the conduct of that assessment.

First, I must consider an important question that arises from submissions made on behalf of G and F, namely whether the law stipulates that the Court may not entertain an application for an order under s.16 of the MCA that would have the effect of depriving a person (“P”) of his liberty unless satisfied that his condition warrants compulsory confinement. In effect, it is suggested, just as s. 31 of the Children Act 1989 establishes a threshold condition that has to be satisfied before the court can consider whether to make a care or supervision order in the interests of a child’s welfare, so Article 5 creates a threshold condition that has to be satisfied in deprivation of liberty cases before the court can go on to consider what order to make in P’s best interests.

Mr. Allen submitted that the MCA does not provide the answer to whether some threshold must be satisfied before authorising the removal of an incapacitated adult from his family. He argued that this was one area where the inherent protective jurisdiction is of assistance, and pointed out that under that jurisdiction, the threshold for judicial intervention is where there is “a demonstrated need” to protect a vulnerable adult “from abuse or the real possibility of abuse”: see e.g. Re MM (An Adult)[2007] EWHC 2003 (Fam). On behalf of G, Miss Bretherton submitted that Article 5 creates minimum conditions for the deprivation of liberty, and that those conditions are not met in this case. It is not accepted on behalf of G or F that the “three minimum conditions” necessary for an individual to be deprived of his liberty, as identified by Munby J. in Re PS (drawing on the decision of the ECtHR in Winterwerp, supra) were or are present here. In particular, it is submitted that E’s mental disorder is not of a kind that “warrants compulsory confinement”. They submit that an assessment of best interests only arises if the threshold criteria for confinement are met. That is not a balancing exercise of what is in his best interests; it is an objective legal test which, if not met, means that he cannot be detained, pursuant to Article 5. The effect of their submission is that the criteria for detention set out in PSamount to threshold criteria, akin to the criteria under s. 31 or 38 of the Children Act which must be satisfied before a public law order (i.e. a care order or supervision order) can be made in respect of children.

In seeking to persuade me that there are threshold criteria for detention which must be met before a court can go on to make a best interests order, Miss Bretherton relied on the decision of the Court of Appeal in St George’s Healthcare NHS Trust v S[1998] 3 WLR 936, which concerned an admission to hospital under s.2 Mental Health Act 1983 of a heavily-pregnant woman who had refused medical treatment for eclampsia, against her will and on whom a Caesarean operation was subsequently carried out against her will after a judge had granted a declaration dispensing with her consent at an ex parte hearing. The Court of Appeal ruled that the cumulative grounds for admission under s.2(2)(a) of that Act had not been made out and that her detention under the Act had been unlawful, and allowed her appeal against the declaration dispensing with her consent. Notwithstanding the good intentions of the medical professions concerned, the reason for detention, albeit for potentially life saving medical treatment, was not related to the alleged mental disorder. Miss Bretherton says this is relevant to the present case because the statutory test under s. 2 of the 1983 Act is “using the language of Article 5”. But in making that point, she illustrates a crucial difference between the MHA 1983 and the MCA 2005 as amended. In the MHA there is a statutory threshold for any order which has the effect of depriving a person of liberty. In the MCA, there is not. The court is merely empowered under s. 16(2)(a) to make a decision in the individual’s best interests, although in exercising that power it must comply with Article 5 (and the other provisions of ECHR).

Alternatively, Miss Bretherton submits that if the Court does have jurisdiction to hear the case without being satisfied that a threshold was crossed, it should be extremely reluctant to engage in a course of action which waives E’s guaranteed Convention right under Article 5(4) to be released if the detention was unlawful and that such a course of action should be limited to the most extreme case where there can be no doubt that the detention is warranted.

On behalf of the Official Solicitor, Miss Street submits that, under Schedule A1, and under the DOLS Code of Practice, deprivation of liberty and best interests fall to be considered in tandem, and that the court should approach an application under s.16 or s.48 in the same way. She submitted that section 48 of the MCA is Article 5-compliant because it provides that an interim decision on the deprivation of liberty is a matter to be determined by reference to the best interests of the person concerned. Miss Street further submitted that the rights protected by Article 5 needs to be approached with “common sense”. In other words, the court cannot be required to adopt a course that is impractical. She further submitted that the purpose of Article 5 is to protect the person in question. Therefore, she submitted, any interpretation the law that might require the court to return that person to a situation which would not be in their best interests should be rejected.

I do not read the MCA in the way proposed by Mr. Allen and Miss Bretherton, nor do I consider that such a reading is a necessary construction to make the new statutory provisions comply with Article 5. The only threshold which must be crossed in order to engage the court’s powers under s. 16 is that the person concerned must lack capacity in relation to matters concerning his personal welfare, or property and affairs. As Miss Street has demonstrated, any assessment of E’s best interests will inevitably involve a question whether deprivation of liberty is appropriate and proportionate. In carrying out that assessment, the court must apply s. 1(6) and have regard to whether the purpose for which the proposed detention is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Furthermore, it must be borne in mind that there is no fixed and absolute concept of “deprivation of liberty”. There are degrees of restriction of liberty. Someone running across an open field may be (or may appear to be) at liberty whereas someone chained to a wall would not. At a point on the spectrum, the conditions may arise which mean that P is being “deprived of his liberty” within the meaning of Article 5. But in considering whether that is appropriate and necessary, a court must have regard to all the circumstances and in the context of the MCA that means carefully scrutinising the precise form of deprivation of liberty proposed as part of the best interests assessment.

In any event, it should be noted that Munby J in Re PS was careful to avoid setting down a rigid threshold in cases under the inherent protective jurisdiction, holding that the second condition will be satisfied if there is “evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate” [emphasis added].

Accordingly, I hold that there is no threshold condition that the court may not entertain an application for an order under s.16 the MCA that would have the effect of depriving a person (“P”) of his liberty unless satisfied that his condition warrants compulsory confinement. The proposed deprivation of liberty (which will of course vary from case to case) falls to be assessed as part of the best interests analysis.

Miss Bretherton further submits, relying on the dicta of Munby J in Re PS quoted above, that it is a fundamental principle that a detention must be authorised by the Court on an application made by the local authority before the detention commenced. There was no such application in the present case and the matter has only been brought to the attention of the Court at all because the Applicant has made the present application. Miss Irving QC and Mr. Mackley submit that, whilst the Court cannot ex post facto authorise the earlier deprivation of liberty between 7 April and 8 December 2009, the failure of the local authority to make the application before the detention commenced does not deprive the Court of the power to sanction a future deprivation and render it lawful by making an order under s. 16 or s. 48 of the MCA. To decide otherwise would expose vulnerable people lacking capacity to the risk of serious abuse due to administrative failure by a public body. Such a course would, submits the local authority, defeat the purpose and principle of the protective ambit envisaged by the MCA. I agree with the local authority’s submissions on this point. In my judgment, it cannot be right that the court has no jurisdiction to make a s.16(2)(a) order, or a s. 48 interim order, in respect of a person who has been detained before an application is made to the court where that detention was an unlawful deprivation of liberty. The fact that E was unlawfully removed from F’s care and remained unlawfully deprived of his liberty for eight months thereafter, does not automatically result in a conclusion that he must be returned to her care now. The decision as to his future care is a matter to be determined by a best interests assessment conducted by the court under its interim powers under s.48.

X Ltd. is a domiciliary agency that supports adults with a learning disability and autistic spectrum impairments who have associated challenging and complex behaviours to live with individual tenancies on a 24 hour basis. It is owned and managed by Mr. Y who gave evidence during the hearing. The agency has been in operation since 2005 and currently supports thirteen adults across three individual homes, employing over twenty domiciliary support workers. Mr. Y provides all the professional advice, guidance and management for risk assessments, contingency strategies, positive behaviour support plans and functional analysis for each client supported by X Ltd.

As stated above, the Deprivation of Liberty Safeguards apply only to those detained “in a hospital or care home” for the purpose of being given care or treatment in circumstances which amount to deprivation of the person’s liberty: MCA Schedule A1 para 1(2). For these purposes, “care home” has the meaning given by s 3 of the Care Standards Act 2000 (“the CSA”): MCA Schedule A1 para 178. The CSA lists establishments that are excluded from this definition. None of them apply to Z Road. Mr Allen points out that, as s.3 of the CSA provides an establishment is a care home if it provides accommodation, together with nursing or personal care, the crucial question, whether the establishment provides the accommodation together with nursing or personal care, is essentially a question of fact.

Mr. Y asserts that Z Road is not a care home because it is not providing the residents with accommodation. X Ltd has a lease over the property from the head landlord, and purports to grant its residents a “tenancy”. A document purporting to be a tenancy agreement was indeed produced. However, Miss Bretherton astutely demonstrated that the purported “tenancy” granted by X Ltd to E is a nullity. The copy is difficult to read, but those parts that are legible give rise for some concern. The parties are said to be X Ltd and the three residents, including E. The agreement contains a number of standard terms. It is dated 1 February 2009, i.e. several months before E moved into the property. The document is signed by Mr. Y’s assistant on behalf of X Ltd and by Mr. Y himself on behalf of E. Mr. Y has witnessed his assistant’s signature and she has witnessed his.

Having heard evidence from Mr. Y, it seems likely that E does not in fact hold a tenancy of Z Road, or any part of the premises. E had no capacity to enter into any agreement, and, as Miss Bretherton rightly submits, Mr. Y purported to enter into this contract on behalf of E without any or any proper authority to do so. She further submits that the circumstances of E’s occupation preclude any tenancy ever being granted, since staff have unrestricted access to his room and provide necessary services, so that there has not been, and cannot be, any grant of exclusive possession: Street v Mountford [1985] 1 AC 809. The consequence, as Miss Bretherton submits, is that E occupies Z Road by permission of X Ltd. In those circumstances, X Ltd’s arrangements at Z Road constitute an “establishment” which provides both accommodation and personal care to E. Mr. Allen submits that Z Road should accordingly have been registered as a care home under CSA s.3. As both Mr. Allen and Miss Bretherton were quick to point out, it is therefore arguable that X Ltd is unlawfully in receipt of housing benefit under the Housing Benefit Regulations 2006. They also point out that any person who carries on or manages such an establishment without so registering is prima facie guilty of a criminal offence: CSA s.11. They therefore submit that, given that no valid authorisation could be given to the placement under DOLS, the court should not make an order sanctioning a placement that is, it is contended, tainted by illegality.

The Official Solicitor points out that this assertion that the arrangements amount to a care home is a challenge not only to X Ltd’s position but also that of the registration authority (now the Care Quality Commission) which has inspected X Ltd and written inspection reports (available online) and has not disturbed X Ltd’s registration as a domiciliary care agency. The Official Solicitor acknowledges that it is difficult to see how the purported tenancy agreement between X and E and the other residents could be valid because it is signed by someone purportedly on E’s behalf with no authority to do so. The inference from Miss T’s evidence, however, is that the procedure adopted by X Ltd is uncontroversial and commonly repeated elsewhere. The reason for seeking to make E a tenant was to provide him with security of tenure and thus protect him from being moved from property to property by the agency. She insisted this was a practice that happens nationally.

I have not heard representations from X Ltd on these matters. Miss Irving QC for the local authority drew my attention in closing submissions to an e-mail received from solicitors acting on behalf of X Ltd to the effect that their client wishes to have an opportunity to make representations if the Court is being asked to determine whether the home in Z Road is a “care home” and whether they have acted unlawfully. Consequently, I am not prepared to give any ruling at this hearing as to whether Z Road falls within the definition of “a care home” without hearing full representations from X Ltd and, perhaps, others, including the Care Quality Commission. I was unwilling to extend what is already an overlong interim hearing to allow for such argument. Clearly these issues would have to be addressed at the final hearing before the court could sanction any indefinite placement at Z Road. That matter can, if necessary, be addressed at the final hearing fixed for July.

Miss Street, supported by Miss Irving QC, submitted that issues concerning X Ltd do not need to be addressed in these proceedings unless it is necessary to consider them when analysing E’s best interests. The point does not need to be resolved for the purpose of the DOLS because, in making an order in E’s best interests, the Court can authorise any deprivation of liberty under MCA s.16 and s.48. I agree. Trying to be pragmatic, I do not consider that these matters give rise to any likelihood that E’s placement or security at Z Road will be jeopardised in the next four months. If I am wrong, the matter can be referred to me at short notice. But in those circumstances, I do not consider that the points raised by Miss Bretherton and Mr. Allen carry any significant weight in the interim best interests assessment that I am conducting at this hearing.

In relation to the creation of a valid tenancy agreement, the Official Solicitor submits that the court could appoint a property and affairs deputy (for example an appropriate officer of the local authority) with the limited role of acting on E’s behalf in respect of any tenancy agreement in the interim under MCA ss48 and 16(2)(b), in case this facility is required by X Ltd and the local authority if E stays where he is. Miss Bretherton submits, however, that such an appointment would not render any tenancy agreement valid, because there would still be no exclusive occupation at a rent. I do not propose to make such an appointment at this stage.

The local authority submits that, as E’s capacity and needs are the same wherever he is, and the care plan for him is broadly the same whether he is placed with F or in residential care, any placement would require a deprivation of liberty.

Mr. Allen submits that this argument is fallacious. To return E to his home and family would not constitute a deprivation of liberty. The concrete situation will be the familiar surroundings of home and family life to which he is accustomed. Other members of his family could visit whenever they wished. In F’s home, E has his own bedroom which is always kept open due to the risks presented by his epilepsy. Miss Bretherton submits that the suggestion that E’s lack of capacity was so extreme that he would always be deprived of his liberty, wherever he was, and even if returned to F, demonstrates a fundamental misunderstanding of Article 5. The “core element” is confinement, per Secretary of State for the Home Department v E[2008] AC 499 per Baroness Hale of Richmond at paragraph 25.She submits that the suggestion that F’s home constituted a particular restricted space is untenable. Nor is there any evidence that E was confined to that home for a significant length of time. On the contrary, she submits, E was entirely free to leave, (and frequently did leave) subject only to proportionate safeguards which, at most, would be a restriction on, rather than deprivation of, liberty. There were no restrictions imposed on any person having access to him. The Official Solicitor also disagrees with the local authority, contending that if E were to return to F he would probably not be deprived of his liberty within the meaning of Article 5. But he submits that it is unnecessary and undesirable for the Court to rule on this point.

Common sense suggests that when considering deprivation of liberty there is a clear distinction between a placement at home, with family or an adult carer, and in a residential establishment. One can of course think of circumstances – those of the first Mrs. Rochester in “Jane Eyre”, for example – where someone might be deprived of their liberty although living at home. But in most cases the circumstances are more likely to fall into the category of a restriction, rather than a deprivation, of liberty. But I am making no ruling on that issue, for three reasons. First, I have not heard full legal argument on the matter. Secondly, I have been told that a judgment is “hotly awaited” from a senior judge which it is anticipated will address this issue after full argument. Finally, I do not consider that any ruling I made about whether or not a placement with F would constitute deprivation of E’s liberty would have any bearing on my interim best interests assessment. The fact that a placement with F might, as a matter of law and fact, amount to a deprivation of E’s liberty would not dissuade me from authorising his return if I concluded that was in his best interests. It is the substance of the proposed placement that matters, not any label that attaches to it.

Part of the local authority case against returning E to F’s care is based on statements allegedly made by him from which, if taken at face value, an inference might be drawn that he was ill-treated in her care. The question arises whether such statements are admissible and, if so, what weight should be attached to them.

In civil litigation, hearsay reports of statements from a person who is not competent are inadmissible under s.5 Civil Evidence Act 1995 (“CEA”). In London Borough of Enfield v SA, FA and KA [2010] EWHC 196 (Admin) McFarlane J. considered whether hearsay statements from a person who lacked capacity were admissible under the Court of Protection Rules 2007 (“COPR”). He held that the power of the Court to “admit such evidence, whether written or oral, as it thinks fit” pursuant to rule 95(d) of COPR conferred upon the Court of Protection power to admit evidence from a witness who was not competent (see paragraphs 32 to 36). It is submitted by Miss Bretherton that this is wrong in law because the general power to admit evidence pursuant to the Court of Protection Rules, which are secondary legislation, cannot override the express prohibition against such evidence being admitted in primary legislation, namely s.5 CEA. It is a fundamental principle of construction that delegated legislation cannot override any Act. Furthermore, Miss Bretherton submits, the overriding objective of the MCA is to act in the best interests of such a person, pursuant to s.1(5) MCA. The rule under s.5 CEA furthers that purpose. It is submitted that it cannot be in the best interests of a person without capacity to have statements they made while not competent to be a witness relied upon. Miss Bretherton points to the present case, in which the local authority acted upon such statements, as an example of the dangers of so doing.

In reply, the Official Solicitor submitted, first, that statements made by E will be hearsay only if they are tendered as evidence of the matters stated. Some statements made by P may be tendered not as evidence of the matters stated but as evidence of something more basic, e.g. that the statements were made. I do not think this argument assists in this case as the purpose for admitting the statements would be to prove the matters stated, namely that E had been ill-treated by F. The Official Solicitor’s second argument is, however, more persuasive. He contends that it is in fact primary legislation, namely s.51(2)(i), which permits the COPR (by r95(d)) to depart from s.5 CEA 1995. As noted by McFarlane J. in Re SA at paragraph 42, s.51(2)(i) provides: “Court of Protection Rules may, in particular, make provision– …(i) as to what may be received in evidence (whether or not admissible apart from the rules)…” (emphasis added). Miss Street therefore submitted that, as the primary legislation under which the Court of Protection Rules were made permits a rule to allow evidence to be admitted which would otherwise be excluded by another rule of law, this enables the court to admit E’s statement notwithstanding the provisions of s.5 of CEA.

I agree with and endorse the analysis of McFarlane J. in Re SAas amplified by Miss Street on behalf of the Official Solicitor in this case. Accordingly, I hold that E’s statements are admissible in evidence in these proceedings. The question of what weight to attach to them is, however, a different matter.

If, contrary to her first submission, the Court holds that the said statements by E are admissible, Miss Bretherton relies upon the following principal points on the question of the weight to be attached to E’s statements: (1) as in SA, the factors which mean that E cannot be a competent witness also undermine the weight to be afforded to such statements; (2) the level of communication is far less than was the case in SA - the expert evidence on the issue is that E can only understand one word in every sentence, what he says is rarely in context, he repeats things (“echolalia”) and what he says is “totally unreliable”; (3) E would not understand the task of giving evidence; (4) E has made incorrect allegations against professionals which no one suggests are correct e.g. ““U” hit me”; (5) none of the comments – about F or H hitting E, or E being locked in a wardrobe or cupboard – are corroborated; (6) the evidence in the present case is multiple hearsay evidence.

Miss Irving QC sought to dissuade me from making findings in relation to the weight to be attached to E’s comments at school until the opinion of the psychiatrist is received. Miss Street put it slightly differently on behalf of the Official Solicitor. She agreed with Miss Irving QC that the Court should not make findings of fact about what lies behind E’s comments at school and the causes of his behaviour without the benefit of the psychiatric evidence to be filed in due course. However, because the court has heard much evidence already, it is appropriate at this stage to make some findings of fact, although the court should approach this exercise with caution in the light of the further hearing yet to follow and because the experts’ investigations may give rise to further evidence on the issues which have been before the court during this hearing. Where it is not yet appropriate to go as far as findings, the court can of course record the salient evidence and its impressions thereof.

I have formed the very clear conclusion that no weight can be attached at this hearing to comments made by E which might suggest that he has been ill-treated at home. His communication capacity is extremely limited. He says only one or two words, and those he does say are often merely echoing what others have said. One psychologist (W) noted that he “often repeats information but doesn’t necessarily understand”. It is clear that he has said things about being hit (by a school staff member called U) that are manifestly inaccurate. I conclude that no weight can be attached to anything E has said unless clearly supported by corroborative evidence. No such evidence has been produced. Accordingly, at this stage I disregard all such statements made by E.

Having finally dealt with all matters of law raised by counsel, I can turn to the interim best interests assessment.

As stated above, there is ample evidence that E enjoyed a close relationship with F. In short, he was one of the family. F described him in oral evidence as “like my son”. He called her either by her name or “mum”. If E is to enjoy the benefits of a family life, it will only be with F. As Mr. Read said, there is no other way of constructing a family environment for him other than returning him to her care. Although E is unable to express himself in words with any clarity, he has clearly demonstrated that he loves F and regards her as his mother. It can, in my judgment, be assumed that he would wish to return to her care if that were possible.

There is plenty of evidence to satisfy me that F’s care of E was generally of a high quality. In his report, Mr. Read observed: “the view of the social workers from the children’s services is that F proved to be a loving, dedicated and skilled carer who treated E as a member of her family. There were concerns expressed about poor communication, difficulties in complying with local authority regulations, complaints about the quality of her supervision from third parties, but overall the picture from the fostering service was a very positive placement for E.” The respite care manager at the J Residential Home where E has stayed on many occasions during his years with F said in his statement that “F in my view did a remarkable job with E. She acted in my view like any caring parent should act and has the necessary skills and abilities to manage E.” G told the court that she always felt happy about E’s care when he was living with F. She had no worries about him or his health. Consequently when she discovered that he had been removed from F’s care it was “scary – I didn’t know where he was or how safe he was”. One cannot help reflecting that if it was “scary” for G, how much more distressing and confusing must if have been for E himself.

There have been some concerns that F has been uncooperative in her dealings with professionals. I think the local authority is probably right in saying that, on occasions, F was antagonistic and confrontational. I note the evidence that professionals, including E’s paediatrician, had been concerned at her attitude at one professionals’ meeting to which she had insisted in bringing E. In cross-examination, F did not accept that she had acted unadvisedly on this occasion. She thought E had a right to be at the meeting. She did not accept that her behaviour towards the school staff would have added to E’s anxiety. In my judgment, F is to be criticized for failing to appreciate the risk of harm to E on this occasion. She clearly had a poor relationship with Miss M, the deputy head at the school. I found Miss M to be an impressive witness, and I suspect that F was probably at fault in her attitude to the school. But I was also impressed with the observation of the manager of the J Residential Home in his statement dated 18 January 2010 when he described F as “a very direct person… who cared deeply about what was best for E. She was very forthright in her views and would challenge professionals if she disagreed about what was best for E… whilst F made her views known and disagreed with what they were saying about the management of E, she acted like any concerned parent might. I think there were some personality clashes but do not think that F allowed these to get in the way of managing things for E.” There are similar observations in the local authority records.

Particularly striking is the record of excellent relations between F and the hospital staff during E’s prolonged admission in 2008. It is not uncommon to find antagonism between medical staff and family during long hospital admissions. In this instance, there were no reports of any difficulties. On the contrary, all the staff, including E’s surgeon, were highly complimentary about F’s dedication to E and her attitude towards staff.

Overall, I do not find F has a history of generally poor cooperation with professionals. It is regrettable that there have been difficulties with the school, but in my judgment this is not a factor to which I should attach much weight in the balance against a return to F’s care. On the contrary, the evidence shows that F is a carer who fights hard on E’s behalf. It may be that sometimes she takes things too far (for example, by taking E to a professionals’ meeting at which things were said that might have caused him anxiety). But it is in E’s best interests to have a carer who genuinely cares for him and fights his corner. That is something to be placed in the balance in favour of a return home, in the interim and in particular in the long term.

There was some evidence of possible incidents of ill-treatment of E in F’s care. For the reasons set out above, I attach no weight to the statements made by E from which an inference of ill-treatment might be drawn. There was evidence about an incident in 2007 when F is said to have spoken harshly to E on collecting him from school. That incident is described in a note on the files. Miss M was asked about it by Miss Bretherton. She conceded that she herself had not seen F be verbally aggressive to E. What concerned her about the incident when F had apparently or allegedly admonished E for bad behaviour in school was the inference about the way in which she dealt with such behaviour at home which could be derived from her alleged comment: “what you do is put him to the wall”. F denied that she had said this, and denied that she had been aggressive or threatening towards E in this incident. Whilst I think it likely that F was cross with E and that she probably admonished him, I do not find that she was aggressive, or that this incident is indicative of a pattern of ill-treatment.

There is no doubt that E has throughout his life exhibited difficult behaviour. The major bone of contention between F and the school was their different experiences of his behaviour. Miss M describes E’s behaviour in 2007 as “very challenging” and has increased over the time she has known him. On a scale of one to ten in terms of behavioural problems, Miss M said that E would be a ten. His challenging behaviour had a very considerable impact at the school. At its most challenging, he was a risk to the staff and to himself. His behaviour was also very unpredictable and difficult to control environmentally and as a result the school had to put quite extreme measures into place. Thus E had a room where he could be by himself where he could go at moments of extreme anxiety. By the end of his time in F’s care, E was using that room a lot. Miss M was anxious to impress upon the Court that it was E’s choice to use that room. He would indicate he wished to go there by moving away and would either walk or take a member of staff or ask to go out of the classroom.

F recounted how there had been repeated difficulties with E’s behaviour on the school bus. He would be happy leaving home but once on the bus he would kick or bite or sit on the floor and when the teacher came out of school he would bite her. F was concerned that she was not experiencing this behaviour at home and also that the school were not telling her sufficient details of the problems they were having.

This difference did not surprise Mr. Read who in answer to Mr. Allen related how in the course of his career he has come across other children who behave very differently at school and at home or in residential care in a way that would not be expected of a child without learning difficulties. The experience of children with learning difficulties is that the pattern of behaviour may vary, he said. This is also reflected in the different experience of the J Residential Home and the school. Whereas the school found his behaviour at the extreme end of the spectrum, that was not the experience of the manager of the J Residential Home who said in evidence that it was at “the manageable end of the spectrum”.

In fact, the evidence showed that there were times when F experienced difficulties managing E’s behaviour. She described how difficult he had been when he first came to her as a small child. In cross-examination she was taken to passages in the older history as set out in social services records from which it is clear that she was at one stage in 2007 having some problems with E’s behaviour. F had sought the advice of Dr. L, the consultant psychologist who had advised her to replicate the reward system used effectively to help E at school. F thought at this stage that E’s increased behavioural problem at home was spilling over from school.

It became apparent to me, however, that F did experience increasing difficulty managing his behaviour after he returned home following his prolonged stay in hospital in 2008. For example, there was an incident after Christmas 2008 when E had thrown a dustbin at her. F conceded that it gave her a shock. She went outside the house into the garden, leaving him in the house by himself. She was outside with her hand on the door handle while he was inside holding the door handle at the other end and saying sorry. F said in evidence that she had not seen E like it before. Afterwards, her neighbour had suggested using valium to help control E’s behaviour. F conceded in cross-examination that in the course of discussing this incident with P, the social worker, she had wondered whether E was schizophrenic because, as she said, one minute he was okay, the next minute he was throwing a bin at her. On another occasion E had pulled her friend’s necklace and broken it together with a mobile phone.

This is the background to the incident abroad in March/April 2009. F took E on holiday for a week, accompanied by her sister Q and her partner R. F has (as I find) given different accounts about this incident. On 6 April, two days after her return, she saw Miss T, who noted that F described the incident as follows: “F related that E kicked off on holiday. He asked to go to bed, F was eating, delayed responding, put plate down, E smacked her right in the face. He also grabbed at her and ripped her pyjama top. Q and R ‘got hold of him’ one from behind (R) and one holding his arms. F demonstrated that E was on the floor with his arms reached upwards and that he was held by his upper arms. F went upstairs. E went to follow her. F described E being given ‘a love’ - hugged so that he could not leave the room. F related that Q and R cared for E the next day and gave him his tea”. Miss T said that the notes are an accurate record of what was said by F at the visit. She made a note in the notebook during the visit as they were discussing the issue.

On 22 April, Miss T asked F about the incident again. She gave a similar account. On this occasion Miss T’s note reads as follows: “she said she was sat on the chair – E was sat next to her. He said bed. F went to take another bite out of her sandwich – E hit her. She put her sandwich down and E lashed out again. F put her hand out to him (she demonstrated – raising her hand/arm in the air). E grabbed at her pyjamas and ripped the buttons. ‘He’d go on the floor – don’t know how’. R got up from settee next to E. R got behind him and got hold of him. E was screaming ‘sorry F’… Q was at the dining room table – she got up and got hold of him. F was unsure where she touched him. Next thing he jumped up and followed F. F went upstairs. E followed her – Q got hold of him and ‘gave him a love’. Q put him to bed that night – it was over in seconds. Next day carried on as normal… I asked F about her previous account. F had said that she ignored him the following day. F agreed that she did ignore E the following day but said that this did not affect his care”.

Miss T adhered to this account in oral evidence. She said that F had described E lying on his back on the floor with his arms stretched above him. She said that Q had bent over E, with her hands on his arms. F had demonstrated the position to Miss T who repeated that demonstration in court.

In the note of the first conversation on 6 April, Miss T records that F asked her if there was any self-defence training she could attend and said that Q had shown her how to use pressure points to disarm someone and had said that it did not hurt. F demonstrated to Miss T what she had been shown. F was advised that adult placement services have a no restraint policy and would not endorse any form of restraint. Miss T said it was concerning that F had thought those techniques might be appropriate to use on E.

When F gave evidence about the trip abroad, she described E’s behaviour overall on holiday as being “brilliant”. There had, however, been one occasion when he had slapped her on the face. She said that she, E, and her sister and partner were sitting in the apartment one evening. E asked to go to bed. F said no, in a minute, and he had insisted “no, bed”. At that point he slapped her on the face twice and as she put her arm up to protect herself he went on to the floor, grabbed her pyjamas and pulled the buttons off. F had said to E “what are you doing?” He said sorry repeatedly. F said that she had then gone upstairs to change and when she came down she found her sister had her arms round E “giving him a love”. Her sister had then taken E out for a walk. F said that the incident “was over in seconds”. F said that the description of the incident in Miss T’s note was inaccurate. Her sister had merely given him a cuddle. It was not right, said F, that one of them had got hold of him from behind at all. She was, however, unable to explain how it was that Miss T had made this mistake in her notes of their two conversations on 6 and 22 April.

The court bundles contain two handwritten documents from Q and R. Q’s document says “… E struck F and grabbed her nightwear and tore the buttons. F asked E to let go several times, then R said let’s go E and rose from her chair. At that point E relinquished his grip and sank to the floor, he was confused and upset. I walked over and offered E my hand, he rose from the floor and I hugged him. He was quite upset and was asking for F, I took him to the patio area and had a chat with him. He was fine after a short period…” R’s document says: “E hit F twice in the face and then grabbed her pyjama top, he dropped to the floor and wouldn’t let go of F. I got off the chair and said, c’mon mate let’s go. With that E released his grip off F, at that point, Q came over and E took her hand and walked out onto the patio and the situation was diffused very quickly.” Both therefore broadly support the version given by F in evidence, but neither Q not R was called to give evidence before me.

F accepted in oral evidence that when speaking to the social workers after returning from abroad she had used the word “self-defence” when asking for further training and help managing E’s behaviour. She said that she thought she would like to have some self-defence training, just in case E behaved in a similar way again. She said, however, that she had never herself physically restrained E and she had not seen either her sister or her partner use such restraint abroad. In cross examination by Miss Irving QC, F accepted that she had asked the social workers about the use of pressure points. She said, however, that her reason for doing that was not because she was concerned about how to control E’s behaviour. I found this difficult to accept.

I accept Miss T’s evidence about what F told her on 6 and 22 April, and about the demonstration F gave. Accordingly, I find that F has not told me the truth about this incident. This finding is relevant for two reasons. First it forms part of the reason for my finding that F was struggling on occasions to manage E’s behaviour after his discharge from hospital. The fact that E struck her, that she was unable to cope and became distressed, and that her sister and her partner had to intervene and use physical restraint all support this conclusion. In addition, I think it is significant that she made inquiries about self-defence training. I find that she felt that she needed such training because she was becoming anxious about the risk of sustaining harm as a result of E’s behaviour.

The finding is also relevant because it demonstrates that F has sought to mislead the court about this matter. This is not the only example of lack of candour in her evidence. She also gave misleading evidence about her criminal record. It was in Miss Bretherton’s cross-examination that the question of F’s criminal record was first raised. She was shown a copy of her application form to become an adult placement carer and said that the record of her previous convictions on that form was accurate – it said that she had a shoplifting conviction in 1973 for which she had been fined. Later, however, during cross-examination by Miss Irving QC, F conceded that she had in fact four convictions for offences of dishonesty – three of theft and one of handling, all related to shoplifting – stretching between 1975 and 1983. Hearing her evidence, I expressed considerable surprise that she had misled me in answer to Miss Bretherton and also when completing her application form to be an adult placement carer.

The local authority says that this lack of honesty is very concerning. I accept that it is a matter that I have to take into account when conducting the best interests assessment. Mr Allen pointed out that F must have known that the local authority was well aware of the full details of her previous convictions (four convictions for shoplifting or handling between 1975 and 1984). He therefore asked rhetorically why she would lie about something the local authority already knew. In addition, he drew my attention to the circumstances in which the form had been completed at a time when E was in hospital recovering from his operation and F had suffered a bereavement. In addition, he submitted that F had been under pressure in the witness box when she gave her inaccurate answer about her convictions. He acknowledged that she had been inaccurate about her criminal record, but submitted that she had not been lying. In the alternative, in the event that the court concluded that it had been a lie, Mr. Allen rightly reminded me of the need to give myself a Lucasdirection.

There is a material difference in my judgment between one isolated offence of shoplifting and a course of criminal conduct of dishonesty stretching over a nine year period. The latter is significantly more serious. My initial reaction on hearing F’s cross-examination was that it was a deliberate lie. I have considered the matter carefully since her evidence. I do think that she knowingly deceived the court with a view to deliberately minimising her criminal record. I give myself the Lucas direction but am driven to the conclusion that the reason for her lie was to paint herself in a more favourable light as a potential carer for E. On balance, I consider that to be the motivation for her lie (as I find it to be) on the application form as well as the witness box. I am not impressed by the excuses advanced on her behalf for the mistake on the form.

Miss Street submits, however, that while her conduct in the witness box, in particular with respect to her previous convictions, raises serious concerns for the Official Solicitor, it is not clear that the evidence she gave should rule her out from caring for E in the short or long term, if this were otherwise considered appropriate. For this reason, submitted Miss Street, the fact that she did not tell the truth to the court in this respect does not necessarily lead to a present conclusion that she is not “of integrity” and therefore unfit to be an adult placement carer under regulation 16 of the 2004 Regulations. I agree with these submissions. The fact that she lied on oath about her record is, in my view a serious matter, and one which I shall take into account in the best interests assessment. It does not, however, automatically disqualify her from caring for E.

The local authority sought to add to this picture by raising concerns about F’s management of E’s finances. I do not propose to set out the details of this part of the evidence in any detail. Having listened to it, I found nothing in it to suggest that there was any reason to question F’s honesty. No doubt she has found some of the rules and procedures obscure and difficult to understand.

There was a considerable amount of evidence about the circumstances of E’s current placement at Z Road, much of it very positive. F described the staff looking after him there as “very, very nice and generally brilliant”. Mr. Y described how E has improved in a wide variety of ways since he went to live at Z. His communication, both verbal and non-verbal, has improved as a result of various strategies which X Ltd had employed in consultation with a speech and language therapist. There has, according to Mr. Y, been a definite development in E’s independent skills, as a result of the use of a “person-centred plan” developed by the staff. In Mr. Y’s view, one of the reasons for E’s improvement is the opportunity he has had to access community activities and outdoor pursuits. As a result, there has been a discernable improvement in E’s behaviour. Mr. Y described how E had demonstrated challenging behaviours when he first arrived at Z Road in June. There had been some improvement as a result of the strategies which X Ltd employed but Mr. Y detected further a problem once contact resumed with F and G. He described how when E’s behaviour was challenging, it was suggested that he could go to his room. Once there he would be able to calm down by playing the radio or his keyboard. He would not be prevented from leaving the room. Rather, the staff would try to engage and distract him in different ways. He did not think that the policy of suggesting that E should go to his room could be described as “seclusion”. In answer to Miss Bretherton, Mr. Y said that there was a lock on E’s door but it could not be operated from the inside. E was not locked in his room at any point. The front and back doors to the property are locked because, in Mr. Y’s words, “we have four vulnerable adults who have no idea of the dangers of the outside”. Mr. Y said that X Ltd has a physical restraint policy which he described as a “non-violent physical intervention programme”, but stressed that it was not used on E because the medical advice was that it was not appropriate to use it because of the problem with E’s spine.

In oral evidence, Miss M reiterated that since E had been removed from the care of F, there have been considerable changes. There have no longer been any difficulties with the school transport, as there had been previously. He is now happy to see the teachers at the start of the day and happy to leave at the end. In contrast to the position before April 2009, Miss M says that E now spends no time in the room by himself. That room is still available and occasionally he asks to go in it for a few minutes. The reduction in the frequency of occasions when E went to the small room occurred over a three month period after E returned to the school after half term in June 2009. She accepted Miss Bretherton’s point that this coincided with his medication being introduced. It is thought possible that one reason for his behaviour becoming more manageable is that he is on medication. F and G are concerned that medication is being used to control his behaviour. F is concerned about the possible side-effects, including damage to his vulnerable kidneys, although E’s paediatrician told the court that the dose prescribed to him was “not large”.

The change in behaviour is not the only difference Miss M has seen since E moved to Z Road. In her statement, she recounted how, since June 2009, the school has seen “remarkable progress in E’s emotional well-being. He is increasingly interested in contact with his peers, expressing a wish to join them in the classroom and he rarely asks to work alone”. She adds, however, that the progress which the school has seen in E over the past few months remains “somewhat fragile; he continues to show some evidence of anxiety although much reduced and he continues to find busy unpredictable social environments hard to manage. He continues to need very consistent and predictable learning environments with support from a skilled, secure staffing team if this progress is to be maintained.” However, the improvement has meant that E is now being considered for a college place when he leaves school at the end of this academic year. In oral evidence, Miss M said that, prior to April 2009, this was not considered a realistic option. His access to learning had been very much impaired by his difficulties and it had been very difficult for E to access community-based educational opportunities. On each occasion it was necessary for the school to do a risk assessment of E, staff members, and members of the public. They came to the conclusion at one stage that it was simply not safe for him to engage in such activities. Since he has been living at Z Road, however, the frequency of the occasions when he has not been able to access such an activity has significantly reduced. Now, the school is observing how E can access these broader activities. He is interested in learning, and in working alongside other people. Miss M considered it crucial that this should continue.

It is of course right, as Miss M acknowledged in cross-examination that it would not be impossible for E to go to college if he returned to F’s care. It seems to me, however, that there is a risk that, at least in the short term, he might not sustain the progress he has made whilst at Z. Clearly the next few months are going to be crucial if he is going to achieve the aim of going onto college.

It has not been all plain sailing at Z Road. The evidence shows that E continues to present challenging behaviour. There continue to be incidents recorded at Z Road. I anticipate that this is a matter about which the psychiatrist will be able to give further evidence at the July hearing. At this stage, my provisional conclusion is that E will continue to display difficult behaviour at times, in a variety of settings, and that it is reasonable to conclude that the more unsettled and anxious he becomes, the greater the likelihood of that behaviour recurring.

Mr. Read was concerned that the placement at Z Road was in any event not right for E because at present he is the only resident at Z Road who has any speech. Miss T said, however, that she would not reject the placement simply on the grounds that E is the only resident capable of verbal communication. She said that E does not initiate communication verbally. He does have the opportunity to communicate verbally with others namely at school and when socialising with residents from other homes as well as members of staff. She agreed, however, that this is a matter which should be considered by the local authority in the light of such opinion as the psychiatrist may express in his report.

In answer to Miss Street, Mr. Y said that X Ltd was able to provide care for E on a long term basis. He did not envisage that any deterioration in E’s behaviour or health would oblige them to stop caring for him. However, Mr. Y told the court that, were E to be returned to F in the interim, it would be very difficult to keep his place at Z Road open in the event that the ultimate decision of the court is that he should not remain with F.

A return to F’s care clearly could not happen overnight. F conceded that, if E is to return to her, it would be better for this to happen in stages “because he’s got used to living at Z Road”. I asked F what the consequences would be if E were to return to her now and then removed after the final hearing in July. F said that if he had to be removed again she thought he would cope with it very well. I was unconvinced that F had really thought carefully about the consequences of such a double move for E. She did acknowledge that she thought it would be confusing for E to come home to her and then to go somewhere other than Z Road.

Drawing all these threads together, Mr. Read identified in his report a number of risks in returning E to F’s care at this stage in the interim, namely (1) that with or without his current medication, his behaviour may be too challenging for F to cope with; (2) that F may try to mask the extent of E’s behaviour to avoid risking the termination of the placement; (3) that E may lose the opportunity to develop his independent life skills; (4) that E would have more limited opportunities for sharing social activities with his peers; and (5) that a further move in advance of the final hearing may prove disruptive to E, increase his level of anxiety and thus increasing the incidence of more challenging behaviours. On balance, however, it is Mr. Read’s opinion that these risks are currently justified pending the final decision of the court. His conclusion, therefore, is that the better course now is for E to be returned to F’s care pending the final hearing.

Mr. Read acknowledged that there is clearly a risk that any move would lead to E becoming more agitated, although at the end of his evidence he said that he thought this was a possibility, not a probability. He thought that level of risk could be reduced by careful preparation, but I was somewhat unclear about exactly how that preparation would be carried out, given his learning difficulties. I felt that Mr. Read was a little uncertain at this point in his evidence. In particular, there seemed to be a lack of clarity as to whether overnight staying contact at F’s house would be a good idea ahead of a return home. Initially, whilst acknowledging the risk that E may feel that he was going to stay for longer and a consequent risk that he may be upset or agitated when that proved not to be the case, he seemed to be saying that, with skill and preparation and perhaps preliminary visits that did not involve overnight stays, the risks of his becoming agitated could be lessened so that he could manage overnight contact. Later, however, he said that if E is to be returned in the interim, the timetable should be relatively short and should not involve any overnight stays, but rather some extended visits and then a move.

Mr. Read acknowledged the risks of returning E in the interim if he was then to be moved away again after the final hearing. He pointed out, that when E had been in hospital for several months, he had been helped to understand that he was in hospital and would soon be going home. He conceded, however, that there is a difference between telling E what is going to happen when the future is certain as opposed to when it is not. It seems to me, with respect, that Mr. Read has underestimated the dangers to E of returning him to F in the interim and then removing him again at a later date.

On any basis, before E could be returned to F, there would have to be a staged programme of increased contact. It would also be necessary to provide F with some training in physical restraint. The local authority’s evidence on this aspect of the case was totally unsatisfactory. Miss T was asked in chief about the availability of such training for adult carers. She said that no training was available so far as she was aware because all physical restraint had to be carried out under supervision. She said that it involved risk to both the carer and the cared-for adult and that gave rise to issues of insurance. As a result, she said, the policy of this local authority was that adult placement carers were not allowed to exercise physical restraint. She understood that there was a written policy to that effect although she had not seen a copy. When Miss A, the team manager, gave evidence, she repeated that there was a policy to that effect, and indeed thought she had seen a copy. I was concerned about this evidence from the local authority, partly by the vagueness but also because, if there is indeed such a policy, no adult who may need physical restraint from time to time could be placed in an adult family placement. As Miss Bretherton remarked in the course of the hearing, such a policy is likely to be unlawful on several grounds. At first sight, it would appear to be both irrational and discriminatory.

Further research by those representing the Official Solicitor after the conclusion of the evidence revealed that Regulation 17(2)(e) of the Adult Placement Schemes (England) Regulations 2004 and Annex 7 of the National Minimum Standards for Adult Placement Schemes, (Department of Health, August 2004) permit the placement of an adult in a placement despite exhibiting challenging behaviour which may require physical restraint. Furthermore, a re-examination of the court bundles revealed that this local authority’s standard adult placement agreement expressly stipulates that physical restraint can be used by adult placement carers, provided training has been given. In the circumstances, it was not surprising to read in Miss Irving QC and Mr. Mackley’s final submissions that there was in fact no policy, written or unwritten, precluding the placement of adults requiring physical intervention with a single adult or joint adult carers. They submit, however, that such a placement requires a risk assessment, and it would be unlikely that such a placement would take place if that assessment identified a clear and unacceptable risk of harm to either the vulnerable adult or the carer. Each individual case is treated on its merits.

The local authority case on this point has been lamentable. I cannot understand how the social workers, and in particular the team manager, can have given evidence of the existence of a policy that would prevent the court placing E back with F when no such policy in fact existed.

Before reaching my conclusions on the best interests assessment, I must acknowledge the very considerable contribution made to this hearing by G. It was she who launched these proceedings, and thus is directly responsible not only for exposing the serious human rights breaches committed by the local authority but for providing a forum for the determination of the very difficult decision about her brother’s future. She has attended every day of the hearing, including days in London, despite the difficulties with which she has to cope at home. In her statement, she acknowledges that she has not been able to see as much of E in the past as she would have liked. Following the death of her parents, she is his closest living relative, and, as she says in her statement, feels much more liberated to take matters forward in terms of being a sister to her brother. It is unquestionably to E’s benefit to have a sister who is interested and involved in his life. I am confident that, wherever he ultimately lives, she will play an important role in his future.

On behalf of F, Mr. Allen invites the Court to have particular regard to (1) the interim recommendations of the independent social worker; (2) E’s past and present wishes and feelings, the close relationship between him and F, and the fact that he was fully integrated into her family; (3) the greater restriction on E at Z Road and the fact that a return to F would be “less restrictive” within the meaning of MCA s.1(6); (4) the flaws that have riddled the local authority’s procedures; and (5) the clear violation of his Article 8 rights, and the absence of any pressing need for him to be kept apart from his family. In having regard to all the relevant circumstances, he submits that the factor of “magnetic importance” is that E has been removed and continually separated from the home and family he has known for over 14 years and has been unlawfully detained in what should be registered as a care home. The best option for him, submits Mr. Allen, is to be returned home pending the final hearing. This position is firmly supported by Miss Bretherton on behalf of G, who adds that the longer E stays away from F, the more difficult it may be to return him.

On behalf of the local authority, Miss Irving QC and Mr Mackley draw particular attention to (1) the very real concerns that E would become anxious and confused by any interim move; (2) the significant improvement in E’s behaviour at school which has enabled him to enjoy a better quality of life at school and given him opportunities not previously available to him because of that behaviour; (3) the fact that he is to be assessed by the jointly-instructed psychiatrist, Dr. Berney, which leads the local authority to submit that no risk should be taken which may lead to the disturbance of E’s current stability pending that advice and consideration of it by the court; and (4) the fact that, as E has already experienced two moves, it would expose him to a real and unnecessary risk of further emotional harm to move him again before the final decision, with the consequential risk of yet a further move after the final decision is taken. Those representing the local authority are critical of Mr. Read, saying that he had not had or considered all the papers filed herein when he gave his evidence or when he wrote his reports, that he was inconsistent in his evidence, exceeded his brief, and displayed a “paucity of intellectual rigour”.

The Official Solicitor has prepared a very helpful balance sheet (in accordance with the approach set out by Thorpe LJ in the case of Re A (Medical treatment: Male Sterilisation) [2000] 1 FLR 549) to assist him and the court in assessing best interests. In putting it forward, he stresses the limits of its assistance. It is a necessary discipline to identify the advantages and disadvantages of each course of action. However, each bullet point on the balance sheet does not necessarily have equal weight in the balance. I have been greatly assisted by this balance sheet, which is a model of its kind.

The Official Solicitor concludes that the court faces an exceptionally difficult decision. He considers that the case is very finely balanced. He regrets the absence of evidence from the psychiatrist at this interim stage. He acknowledges that there are grounds on an interim basis for the court to authorise E’s continued deprivation of liberty under s.48. In the circumstances, however, he accepts the view of the independent social worker, and concludes that on balance the better course would be to return E to F’s care in the interim.

The fact that the case is so finely balanced must mean, however, that it is open to the Court to accept that the factors are as identified by the Official Solicitor but when conducting the balancing exercise come to the opposite conclusion. Ultimately, it is a matter for the Court and not the expert nor the Official Solicitor, despite their very considerable experience.

I think the local authority substantially and unhelpfully overstates its criticisms of Mr. Read. He clearly had not read all the updating papers before giving evidence but I have no reason to believe that this was his fault. There are nine lever arch files of papers in these proceedings – arranged in a confusing way – and all of us have struggled to master the details of this history. I found Mr. Read’s evidence helpful in a number of ways. He was, I think, the first person to articulate clearly the details of the local authority’s unlawful actions. I propose to give considerable weight to his opinion. Ultimately, however, the decision about interim best interests is a matter for me. Whilst appropriate attention must be paid to the opinion of experts, that opinion must be considered in the context of all the circumstances. The roles of the court and expert are distinct and it is the court that is in the best position to weigh the expert evidence against its findings on the other evidence: A County Council v K, D and L [2005] EWHC 144 (Fam), [2005] 1 FLR 851.

I have already held that E’s placements at the V Unit and Z Road until 8^th December 2009 were an unlawful deprivation of liberty, and an infringement of his human rights under Articles 5 and 8 of ECHR. Those breaches do not, however, automatically result in a conclusion that he must be returned to F’s care forthwith. The decision under s.48 must be made by assessing what is in E’s best interests in all the circumstances.

In carrying out the balancing exercise required for this decision, I identify the following principal benefits of returning E to F at this stage:

In addition, there are disadvantages for E in remaining at Z Road. It is in my judgement clear that his placement there constitutes a deprivation of liberty and a greater restriction on his life than would be imposed if he were returned to live with F. Furthermore, there is the uncertainty about his security of tenure as a result of the concerns about the so-called tenancy agreement discussed above. Finally, there is the risk that the longer he stays there, the more difficult it may be for him to return to F. By the time of the final hearing in July, he will have been at Z Road for over a year. He will be even more settled than he is now. It may be difficult by that stage to justify moving him, even if at that stage the merits of a return to F seem clear.

The disadvantages of returning E to F at this stage include:

In addition, there is one particular concern which I have had about returning E to F at this stage. It is clear to me that no final decision can be taken about his long-term placement until the comprehensive psychiatric report ordered by the court in December 2009 is available. There is a significant possibility that, when that report is available together with all the other material, the court will conclude that the better long-term placement for E is in a residential home, either at Z Road or in some other establishment. E's needs are complex and very substantial. It is likely that those needs will grow as he gets older. It seems to me that there is a very real possibility that the court will conclude in July that, notwithstanding the dedication and commitment that F has shown towards E in many years, she will not be able to cope with him in the long-term. In those circumstances, despite the clear benefits of returning to the family home that he has known most of his life, the court may well be driven to the conclusion that the better course would be for him to live elsewhere. It therefore seems to me that, if E now returns to F, there is a real risk that he will have to move again after the hearing in July. In my judgment, the emotional harm which E would suffer as a result of moving to F now and then moving elsewhere after July would be very considerable.

The Official Solicitor describes the decision I have to make as exceptionally difficult and finely balanced. I agree, but in my judgment the balance comes down against the course recommended by the Official Solicitor and the independent social worker. Balancing all relevant factors, I conclude that at this stage E’s best interests require that he remain at Z Road until the final hearing in four months’ time in July.

In reaching that decision, I have asked myself whether I am falling into the trap identified by Munby J. in Re MM(supra). Have I succumbed to the temptation to put the physical safety of E before everything else? I think the balancing exercise summarised above demonstrates that I have avoided that trap.

Any order that keeps E away from F’s home will be an interference with E’s exercise of his Article 8 rights. However, having reached the conclusion, after carrying out the balancing exercise required under the best interests assessment, and taking into account all the relevant factors, including the inherent benefits of family life, the deep mutual attachment between E and F, and the fact that return to F would afford E easier contact with other family members, that on balance E should not at this stage be returned to F, it follows that the interference is permissible under Article 8(2) since it is in accordance with the law (a legitimate order under s. 48) and necessary in a democratic society in the sense of meeting a pressing social need, that is to say the need to keep E in his current placement pending the final decision because of the factors identified.

I stress that this is only an interim order. There is in my judgment a good prospect that at the final hearing the court will be able to order E’s return home to F. By that stage, the crucial evidence from the psychiatrist Dr. Berney will be available, and the court will have a much clearer picture of the likely pattern of E’s difficulties and challenging behaviour. In order to prepare for the distinct possibility that E will be returning to F, I propose to direct the local authority to arrange a comprehensive risk assessment of that proposed placement with a view to identifying the risks that might arise if E were to return home, and the packages of support and training that need to be made available for F. That assessment will be on the basis of the findings made in this judgment and will be further informed by Dr. Berney’s report when it becomes available in April. In view of the very serious criticisms I have made of the local authority, I expect this work to receive the highest priority, and the results to be available as soon as possible so that any required training (including training in physical restraint) can be carried out before the hearing in July so that, in the event that the court then decides that E should return to F, that decision can be implemented as soon as possible.

I also direct that the local authority devise a programme of increased contact for E with F and G. At this stage I do not define the level of contact. I leave it to the local authority, in consultation with the Official Solicitor, F and G, to arrive at an appropriate arrangement.

In accordance with authority – see Salford CC v GJ, NJ and BJ [2008] EWHC 1097 (Fam) and Salford CC v BJ [2009] EWHC 3310 (Fam) – I propose to direct a further review hearing on 6 May. Any disagreement about the assessments, training, or contact can be referred to me at that hearing. I regret to say that it will have to be in London, but subject to the views of the parties I consider that it would be suitable to hold it via video link. Position statements and updating bundles should be filed with my clerk direct 24 hours before the hearing.

I say nothing at this stage about the proposal of the Official Solicitor for the appointment of a deputy to address the difficulties that have arisen over the “tenancy agreement”. That is a matter that can be revisited, if necessary, at the hearing in May.

Subject to any alterations and additions which may be suggested by counsel, I propose to make an order in the following terms: