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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> A County Council v E & Ors [2012] EWCOP 4161 (09 July 2012) URL: http://www.bailii.org/ew/cases/EWCOP/2012/4161.html Cite as: [2012] EWHC 4161 (COP), [2012] EWCOP 4161 |
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IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| A County Council |
Applicant |
|
| - and - |
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| E (by their litigation fiend, the Official Solicitor -and- K (by their litigation friend, the Official Solicitor -and- SB -and- JB |
1st Respondent 2nd Respondent 3rd Respondent 4th Respondent |
____________________
Mr Andrew Bagchi (instructed by Mackintosh Law) for the 1st and 2nd Respondents
Ms Ruth M Kirby (instructed by Bassets Solicitors) for the 3rd Respondent
Mr Lee Arnot (instructed by TV Edwards LLP) for the 4th Respondent
Hearing dates: 30th and 31st May 2012
____________________
Crown Copyright ©
District Judge Eldergill:
This decision is structured under the following headings:
| Headings | §1 |
| Introduction | §2 |
| Mental Capacity of E and K | §3 |
| The Hearing | §4 |
| The Admissions | §5 |
| The Submissions | §6 |
| Legal Provisions | §7 |
| Analysis and Findings | §8 |
| The Order | §9 |
| Trial Issues | §10 |
This case involves the personal welfare of two young women, E and K. E is 26 years old and K is 24. Both have a diagnosis of Fragile X syndrome and associated learning disabilities, as confirmed by a consultant psychiatrist in a report of 7 August 2010.
E is selectively mute. K also has a diagnosis of Attention Deficit Hyperactivity Disorder ('ADHD').
The Applicant is the local authority.
The other parties are SB ('Mrs B') and JB ('Mr B'). Mrs B is the mother of E and K and Mr B is their step-father.
Mr and Mrs B lived together with E and K as a family for 15 months, until 30 March 2010, when E and K were taken into the care of the local authority.
Just over a week later, on 8 April 2010, Mr and Mrs B married.
On the following day, 9 April 2010, Court of Protection proceedings were commenced by the local authority.
The parties
The parties to these proceedings are as follows:
| Name | Designation | Relationship |
| The County Council | Applicant | The relevant local authority |
| E | First Respondent | One of the two persons concerned ("P"), by her litigation friend, The Official Solicitor |
| K | Second Respondent | The other person concerned ("P"), by her litigation friend, The Official Solicitor |
| SB/Mrs B | Third Respondent | The mother of E and K, the two persons concerned |
| JB/Mr B | Fourth Respondent | SB's husband and the step-father of the two persons concerned. |
Consent order of 25 January 2011
A two-day final hearing of the original application took place before District Judge Ralton on 24 and 25 January 2011.
Independent expert evidence was provided by an independent consultant psychiatrist, Dr T, and an independent social work expert, Mr S. They concluded that:
1. E and K both lacked capacity to make decisions about their residence, the care services they require and contact arrangements with SB and JB.
2. Both were able to make their views known and to contribute to the decision making process with respect to residence, care and contact.
3. However, K was 'unable to offer a consistent point of view regarding these decisions and tends to change her mind very regularly.'
The independent experts recommended a 'memorandum of understanding' which included 'both SB and JB as far as is possible'. This recommendation appears to have been the basis of the memorandum concerning contact that was attached to the order of 25 January 2011.
On 25 January 2011, final orders were made with regard to E's and K's capacity to litigate and their capacity to make decisions about residence, care and contact with their immediate family, in particular Mr and Mrs B.
The court approved a consent order declaring it to be in E's and K's best interests to reside at and receive care at H House and to have contact with Mrs B restricted to pre-arranged supervised contact in a public place.
In respect of Mr B, a declaration was made that it was lawful and in E's and K's best interests to have contact restricted to the extent that it should only take place in accordance with their articulated wishes and feelings and subject to the approval of the local authority.
The order was supplemented by a 'Memorandum of Understanding: Contact.'
Application notice of 27 October 2011
The contact arrangements agreed in January did not proceed smoothly and the proceedings were restored to court by the local authority, who filed an application notice on 27 October 2011.
The local authority alleged that Mr and Mrs B had breached the contact arrangements set out in the order of 25 January 2011 and that such breaches had not been in E's or K's best interests.
For some reason, the local authority's application was not heard until 1 March 2012.
On 6 January 2012, Mr B appeared before the Crown Court, charged with driving a motor vehicle dangerously on 7 April 2010. It is important to note that this offence was committed by him during a supervised contact session. He was sentenced to 12 months imprisonment wholly suspended for 12 months; a six-month curfew; disqualification from driving for two years; and a requirement that he not drive again until he had passed an extended test.
The vehicle driven by Mr B at the time of the offence had been registered in K's name.
On 29 February 2012, Mr B was sentenced to 12 months imprisonment for 21 offences, including the breach of his suspended sentence.
Order of 1 March 2012
On 1 March 2012, SB arrived late for the hearing and JB was unable to attend, having been imprisoned the day before. As a result, a contested fact-finding hearing was not possible.
The contact arrangements set out in the order of 25 January 2011 were varied in respect of Mrs B, who was permitted to have interim contact with E and K at the discretion of the local authority, taking into account E and K's wishes and feelings.
An interim order was also made prohibiting Mr B both from talking to E and K on the telephone and from contacting or attempting to contact either E or K without the express written permission in advance of the local authority. Any such contact must also be in accordance with E and K's properly articulated wishes and feelings at the time such contact was proposed to take place.
Interim injunctions were made preventing Mr B from coming within 100 metres of E or K without the prior permission of the local authority and prohibiting him from coming within 100 metres of the principal entrances of H House, E's work place and K's work place. A penal notice was attached.
The case was set down for a fact-finding and final hearing to determine E and K's best interests in respect of contact, to take place on 30 and 31 May 2012.
A Scott schedule of alleged breaches of the court's order was prepared by the local authority, to which JB and SB responded.
Subsequently, an order was made declaring that K lacked capacity to be the registered owner of a motor vehicle and authorising the local authority to take the necessary steps to remove any legal connection between K and the vehicle registered in her name.
This order was required because the police had written to K on 10 April 2012 to inform her that she was the registered keeper of the vehicle involved in the incident on 7 April 2011. K was told that she was responsible for collecting the vehicle and for paying storage charges.
The fact-finding hearing on 30 and 31 May 2012
The matter came before me for a two-day fact-finding hearing on 30 and 31 May 2012. The Applicant local authority sought:
a. to prove the breaches of the court's order by JB, in order to support its application for an injunction with a penal notice;
b. to consider whether SB could make further admissions so as to avoid the need for fact-finding against her;
c. to ask the Court to make an order in relation to SB on similar terms to that made by District Judge Ralton on 1 March 2012.
At his own request, and with the consent of the other parties, JB 'attended' the hearing on 30 and 31 May by video-link from prison.
The purpose of the hearing was therefore to determine whether, and if so to what extent, there had been breaches of the court's order of January 2011 and, having determined the facts, to review the arrangements for contact.
JB's EDR (earliest date of release) is 30-31 October 2012. However, there is a possibility that he could be released as early as mid-July, subject to a tagging arrangement.
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."[1] It does not matter whether the impairment or disturbance is permanent or temporary.[2]
For these purposes, a person is unable to make a decision for him/herself if s/he is unable:
• to understand the information relevant to the decision,
• to retain that information,
• to use or weigh that information as part of the process of making the decision, or
• to communicate their decision (whether by talking, using sign language or any other means).[3]
On 25 January 2011, final orders were made to the effect that E and K lack capacity to litigate and also that they lack capacity to make decisions about residence, care and contact with members of their immediate family, in particular Mr and Mrs B. No one sought to reopen the issue.
The court was addressed on the scope of the hearing and whether it was necessary and proportionate to proceed on all or any of the factual issues set out in the Scott Schedule.
I heard oral evidence from one witness. It was not necessary to hear further oral evidence because suitable admissions were then made by Mr and Mrs B which were acceptable to the parties and the court. The consequence was that it was unnecessary to proceed further with the trial of the facts.
In addition to the documents in the bundle, I had the benefit of CCTV footage and a police sound recording of the incident on 7 April 2011, which constituted one of the alleged breaches.
As is often the case, discussions between the parties succeeded in narrowing the matters in dispute. Mr and Mrs B both made a number of admissions which were accepted by the court and the other parties as being sufficient.
Mrs B's admissions
SB made the following admissions:
1. On 24th February 2011, JB appeared outside a shop where E and K were having contact with SB.
2. On 10th March 2011, JB appeared outside a coffee shop where E and K were having contact with SB.
3. On 7th April 2011 K went with SB to JB's car. Mr F (the contact supervisor) tried to intervene and held K's hand. SB accepts that she overreacted to this and insisted that the police should be involved because Mr F had assaulted K. SB accepts that she played a part in the situation escalating unnecessarily and that this was a source of distress for K. SB accepts that when K suggested going to JB's car, she should have acted differently and avoided K being in the car with JB. She accepts that she did not return K to the care of Mr F as she should have done. SB accepts that she probably shouted at and swore inappropriately at Mr F in the presence of K.
4. On 1st July 2011, SB accepts that she attended S-works without any prior agreement with the local authority. She spoke to K and told her that she wanted K to speak to a special lady.
5. SB accepts that on 4th October 2011, she attended NL Nightclub knowing that K and E would be there and without prior arrangement with the local authority. She attended to give E her birthday present. She accepts that she spoke with both K and E on that occasion.
6. SB accepts that she has allowed herself to act out of character and allowed contact between E, K and herself to be disrupted and to deteriorate. She regrets this. She knows that it caused distress to K and E and she does not want this to happen again in the future.
Mr B's admissions
In the course of the hearing, SB made the following admissions:
1. In February 2011, JB appeared outside a café where E and K were having contact with SB. He returned to the café to speak to SB to arrange where they would meet after the contact session.
2. On 7th April 2011 JB accepts that K went with him to his car and was driven away by JB without any prior agreement from the local authority. JB accepts that by reason of his actions he pleaded guilty to dangerous driving in respect of his actions that day in a car park involving the contact supervisor Mr F and for which he received a suspended prison sentence and was disqualified from driving.
3. JB accepts that on 4th October 2011, he attended a night club knowing that K and E would be there and without prior arrangement with the local authority. He attended to give E her birthday present. He accepts that he spoke with both K and E on that occasion.
4. On 4th November 2011, JB accepts that he attended at S-works without any prior agreement with the local authority. He attended to give K her birthday present. He accepts that he spoke to K on that occasion.
Having received appropriate schedules of admissions from Mr and Mrs B, it was no longer necessary to embark on the extensive fact-finding session that had been scheduled. The issues to be decided were contact and future work with the family.
The local authority's submissions
The local authority filed a number of statements made by professionals involved in the care or treatment to E and K.
Counsel for the local authority submitted that:
1. The council had tried to work constructively with the family throughout, had taken into account the Official Solicitor's views, and had proposed a round table meeting to facilitate matters, which took place on 19 September 2011 but achieved little.
2. A social worker from another team had conducted a review of the contact arrangements in May 2011 (G/14) and had invited Mr and Mrs B to contribute their views but no representations were made by them.
3. The local authority had provided Mr and Mrs B with a list of possible advocates but had not received a response.
4. The council now had little choice but to ask the court to make injunctions prohibiting JB from having contact with E and K.
5. Contact with Mr B might lead to the placements at H House being undermined.
6. The injunctions should contain penal notices given that JB had 'demonstrated a concerning and repeated failure to adhere to the terms of the earlier order.'
7. Mr B appeared to lack insight into the distress that his actions had caused E and K and the effect of his conduct on them.
8. There had been good quality contact between Mrs B and E and K between March and May 2012. Contact had taken place in the community and SB had complied with the directions and guidance of staff. It was to her credit that she had made appropriate admissions and concessions, and accepted that contact should be at the discretion of the local authority for the time being.
9. Notwithstanding the improvement, a penal notice directed to Mrs B was also necessary. She had breached the court's order and behaved in a way that had harmed E and K. In particular, she played a significant role in the incident of 7 April 2012. Allowing her to simply give an undertaking would not convey the seriousness of that breach.
10. The breach on 7 April 2011 had been very serious indeed. Mr F, the contact supervisor, was off work for several weeks afterwards and received counselling.
11. Whilst JB remained in prison, the council hoped that contact could continue to develop between SB and E and/or K.
12. The unauthorised contact with Mr B on 24 February 2011 had a very detrimental effect on E who was angry and who then neglected her personal care for six weeks.
13. The local authority conceded that it might be difficult to persuade the court that any penal notice should be indefinite or for a period exceeding 12 months. The local authority would prefer a longer period but accepted that the court might not be comfortable with that.
14. The existing order may have created false expectations in the minds of SB and JB as to how and when contact would take place. A significantly more straightforward order, without a memorandum, was now called for.
15. Nevertheless, the order of 25 January 2011 had been sufficiently clear as regards contact with JB and the requirements and conditions of that order had been reinforced in subsequent correspondence:
(a) Paragraph 12 of the order (C/4) stated that, 'For the avoidance of doubt JB shall not initiate, seek or have any contact with E and K save as provided for in paragraph 11.'
(b) Paragraph 11 provided that any contact was at the discretion of the local authority and must be supervised and arranged in advance.
(c) A letter sent to Mr B on 24 February 2011 by the relevant locality manager (G/1) clearly stated that the telephone contact on 20 February 2011 was a breach of the order, that the local authority would have to advise the court of further breaches, and that 'Breaches of the order by you do not demonstrate compliance but rather put any future contact with you and unsupervised contact at home with Mrs B in jeopardy.'
(d) Mr B's solicitors acknowledged in their letter to the local authority of 9 March 2011 that their client had been made 'fully aware of the terms of the order' and had been advised to refrain from speaking directly on the telephone to K (G/3).
(e) The local authority wrote to JB's solicitors on 17 March 2011 (G/5), stating that 'In respect of Mr B, at this time the order stipulates that he shall not have any contact with E and K and that is the position until [the local authority] determines that contact is appropriate.'
(f) A letter sent by the local authority to JB's solicitors on 4 April 2011 (G/10) referred to further breaches, including telephone contact on 4 April 2011, adding 'when your client was reminded by staff about the terms of the court order he threatened them, saying he would "come down and sort staff out".'
(g) Further breaches were outlined in a letter to Mr and Mrs B dated 16 June 2011, which referred to 'serious breaches and potential risks to K and E' (G/18).
(h) Two weeks after the roundtable meeting on 19 September 2011, Mr and Mrs B breached the order again, in the night club incident.
(i) Following the local authority's application notice in respect of the breaches, Mr B again breached the order on 4 November 2011, by visiting K at her place of work.
16. In summary, there had been significant breaches of the court's order and it was not necessary to rely on Mr B's history of breaching other orders in order to support injunctions and penal notices.
17. There was a real concern that E and K might be abducted and the local authority held their passports, pursuant to a court order.
18. In the interests of clarity, a single order regulating contact was desirable, rather than an order supplemented by a memorandum.
19. A further expert report at this time was unnecessary and disproportionate, and a waste of public funds.
20. The Applicant had referred E and K to a clinical psychologist, Mr D, to help them to clearly articulate their wishes and feelings.
21. The local authority sought a side order authorising the police to disclose information concerning Mr B's convictions for gross indecency and indecent exposure. If unsupervised contact between him and E and K became a realistic possibility in future, it would be necessary to undertake a full risk assessment at that time.
Mr B's submissions
In his statements for the court, Mr B stated that:
1. He loves E and K very much.
2. It was difficult for his wife and him to come to terms with only being able to see E and K under the supervision of the county council.
3. He acknowledged that he had breached the agreed memorandum of contact.
4. The order made 'on 24 and 25 January 2011 … reflected that it was in E and K's best interests to have contact both with him and his wife.'
5. He went away on 25 January 2011 with the clear expectation that contact would be moved on, to allow E and K to have contact with him and SB.
6. At every turn he and his wife felt that obstacles were put in their way by the local authority, and that contact was frustrated rather then promoted and facilitated.
7. In particular, his understanding of the order made in January 2011 was that he was permitted to have telephone contact with K. She had been quite happy to speak to him on the telephone and on occasions had asked to speak to him.
8. Any problems that occurred on the telephone were the result of council staff stopping K from speaking to him, against K's wishes.
9. He wanted to maintain and build on his contact with K.
10. K was not been abducted by Mr and Mrs B on 7 April 2011.
11. Stopping contact with him was not in K's and E's best interests.
12. He would respect E's decision not to have contact with him provided it was genuinely what she wanted. However, he felt let down that E did not want to have contact with him, because the council and the carers at H House were supposed to be encouraging it.
13. It was important that the council acknowledged that they had not complied with their obligations to promote and encourage contact, not only with SB but with him as well.
14. Contact was prevented when E or K expressed reservations about seeing him but not facilitated when they expressed a clear wish to see him. It seemed that the local authority was determined to prevent contact between E and K and him, irrespective of their wishes.
15. The council should have been helping him and his wife to find an independent advocate to facilitate the situation but no such help had been given.
16. He was concerned that the local authority was putting pressure on SB to separate from him; and he did not consider it right that they should be trying to split up their marriage.
17. With regard to the incident on 7 April 2011, he had tried to drive around Mr F but accepted that his car hit Mr F, who rolled off the bonnet. He pleaded guilty to dangerous driving. In hindsight, he and his wife should have dealt with the situation differently and he was sorry for what he did. However, it had been very upsetting for them to see the way in which Mr F grabbed K by the wrist.
18. An independent assessment and report should now be carried out to establish how K and E are in his company and to establish their true feelings about contact.
19. He and his wife should have an opportunity to prove how content they are together as a family, and how much joy they bring to K's and E's lives.
20. He would abide by the terms of contact provided that the local authority and its employees 'stop fighting us.'
Mr B's counsel argued that:
1. The independent experts had recommended a memorandum of understanding and a process 'that includes both SB and JB as far as is possible'.
2. The independent experts identified a considerable risk that the sisters could suffer harm if their continued residence at H House resulted 'in further isolation from JB and SB'. Although their report of 7 August 2010 referred to isolation from SB 'in particular,' it also had in mind the potential impact of 'isolation' from JB.
3. In respect of K, the report of 7 August 2010 stated:
'It is our opinion that she could have regular contact with JB in the short term provided contact is in line with her expressed wishes at the time and is supervised.'
'We are of the opinion that without a series of independently observed contact sessions, it is not possible, or indeed desirable, to give advice on detailed aspects of contact issues that could have implications far into the future. The independent observations could be undertaken by us, or suitably qualified professionals experienced in such disputes. Alternatively a local organization with the necessary expertise in contact supervision could be commissioned to undertake this work.'
4. The report of 7 August 2010 referred to the need for 'a degree of tolerance', the certainty of 'bumpy times' and the importance of 'an independent agency that has the ability to act as a 'buffer' between the family and social services.'
5. The involvement of an independent agency was not progressed and this was a significant lacuna.
6. The memorandum of January 2011 led to problems and misunderstandings and from the beginning there was confusion. For example, on 11 February 2011, Ms U (the Senior Practitioner) noted, 'Advised if [JB] waved then the sisters if they chose to could wave …'
7. Contact 'at the local authority's discretion' was different from 'no contact' or 'contact is ruled out' and the memorandum envisaged that the local authority would exercise their discretion in a reasonable manner.
8. A possible interpretation of the order and memorandum had been that if E and K wanted to have contact it would happen, and if they didn't want contact it wouldn't.
9. JB's understanding of the order and memorandum was 'that it was in E's and K's best interests to have contact both with SB and with me' and that 'according to the order … I was allowed to speak to K on the phone.'
10. It had been reasonable for K and him to think that they could talk together on the phone, and that the phone could be passed to him if K was talking with her mother.
11. Contrary to the order, from the beginning the local authority took the view that there would be no direct or telephone contact between E or K and JB, irrespective of their wishes and feelings.
12. Mr B, Mrs B, and E and K had shared a 'family life' together in the recent past and the local authority's approach, which amounted to frustrating contact, was contrary to their expectations and provided the context for what happened thereafter.
13. The relationship between E and K and their mother was important and needed to be promoted. There were plans to increase contact with Mrs B, including contact in the family home and staying contact.
14. Simply locking Mr B out was not a practical or realistic solution if the end aim was to promote and maintain a high level of contact with Mrs B. Isolating E and K from him would be setting up a system that was doomed to failure, and be contrary to the long-term interests of E and K.
15. Despite inappropriate pressure on SB to separate from JB, they remained married and intended to stay together. Mr B would be released from prison fairly soon and there would be contact between Mrs B and her children. Simply excluding Mr B from the lives of his wife's children was unrealistic, disproportionate and not in their best interests.
16. JB had an existing significant relationship with E and K and there was clear evidence of K requesting contact and referring to him as 'dad'.
17. Given that K's expressed wishes and feelings were inconsistent, the bar should not be set too high in terms of making it a condition of contact with JB that she was consistently expressing a wish to see him.
18. It was not clear to what extent the wishes and feelings of E and K had been ignored, for example when K requested telephone and/or direct contact with him.
19. Because of the on-going relationships, including that of Mr and Mrs B, and the plans for increasing contact, there should be an expert led review of how these relationships and risks could best be managed upon JB's release from prison.
20. The court needed to be cautious about the allegation that unauthorised contact had caused a significant deterioration in E's and/or K's well-being. The evidence of this was not clear-cut. For example:
21. JB was concerned that the report of Mr D (E55-63) was commissioned outside the litigation process by only one of the parties, on the basis of an un-agreed letter of instructions. In any event, the local authority had indicated at the PTR that it did not intend to rely upon it.
22. The need for conditions on contact was acknowledged by JB. However, any restrictions on contact with him should be proportionate to the risks and their right to a private family life. The problem with the order of January 2011 had been lack of clarity, the danger now was lack of balance.
23. Indirect contact by letter or card was appropriate. Telephone contact with K was also appropriate if Mrs B was speaking with K by telephone and K asked if she could have a word with JB.
24. In the alternative, the level of contact should not be left to the discretion of the local authority. JB should be allowed some contact after a defined period of compliance with the court order.
25. Contact should not be dependant on JB not committing further offences; any further offences might be relevant to contact or irrelevant.
26. It was preferable for the court to make two orders, one dealing with the injunction and the other with contact.
27. The order regulating contact needed to be clear, simple and realistic. Within an order that set out clear expectations and incentives, a way of re-engaging JB had to be found; and he needed to be supported in complying with it, for example by an advocate appointed to help him.
Mrs B's submissions
In her position statement for the hearing, counsel for SB stated that:
1. A schedule of admissions had been filed and served on behalf of Mrs B.
2. Mrs B was of good character.
3. She had looked after her two daughters from birth until well into their childhood.
4. Until JB was involved with the family, there had been no significant concerns for the welfare of E and K.
5. She had fully intended to work constructively with the local authority in accordance with the contact order and agreement of January 2011. However, matters spiralled out of control almost immediately when K was not allowed to speak to Mr B on the telephone.
6. Some of the care home workers had caused avoidable difficulties.
7. Professional carers had escalated matters unnecessarily.
8. She and Mr B had felt isolated and unsupported. They had needed someone to take things up for them during difficult times.
9. Since March 2012, contact has been much more successful. Mrs B wished to get on with professional carers and staff and was confident that she could work with the local authority.
10. The contact memorandum attached to the order of January 2011 had created more confusion than clarity, especially paragraph c, which stated:
'The possible development of contact between the parties, as envisaged within this Memorandum, is wholly subject to the individual wishes and feelings of E and K and no contact will take place contrary to their wishes and feelings.'
11. Mr and Mrs B's understanding of the agreement was that K could speak to either or both of them if she wished to do so. That was also the impression of the solicitor with conduct of the case on her behalf.
12. Mrs B left court that day under the impression that whatever E and K wanted would happen.
13. She also believed that contact would develop so that after six to eight months the local authority would consider overnight contact.
14. She accepted that the incident in February 2011 led to a significant deterioration in her contact and relationship with each of her daughters, which she regretted.
15. As to the incident in April 2011, although K did want to go with her to her home, she should have acted differently and encouraged K not to go to Mr B's car. Her own reaction contributed to the escalation of the incident, which would have been very upsetting for K. She hoped that the other parties and the court understood how she felt when she was deprived of any contact with her daughters.
16. Mrs B further accepted that other incidents, and the subsequent lack of contact, were damaging and upsetting for E and K.
17. She acknowledged that for a time she lost sight of the best interests of her daughters.
18. She understood the clear warnings given by the judge about the consequences of any further breaches of court orders and contact arrangements. She was determined that there would be no further breaches.
19. K had been inconsistent in her expressed views about having contact with Mr B. However, K had enjoyed good times with him in the past and sometimes expressed a wish to see him. That potential benefit of contact should be left open and was a risk worth taking.
20. Mrs B agreed to contact continuing to be at the discretion of the local authority.
21. She felt much better now than she had for many months, and was delighted that contact had been progressing positively. She was cooperating fully with the local authority. Contact was taking place in the community. She wanted that contact to develop so that her daughters could have unsupervised contact with her, possibly including time at her home.
22. Recently, she had demonstrated a greater ability to express her grievances and complaints in a constructive manner, as evidenced by the way she handled the issue set out at H/78.
23. Her conduct had improved despite having had to cope with significant pressures, such as her husband being in prison.
24. She was willing to give appropriate undertakings and therefore a penal notice was unnecessary.
25. Alternatively, if a penal notice was necessary, it ought not to last much beyond the date of her husband's release from prison.
26. She loves her children and husband and will not leave him. She is committed to her marriage.
27. Her husband might be more likely to comply with the court's order if there was an incentive to comply in addition to a penalty for non-compliance. An open-ended order prohibiting any contact with him, with no time limit or expiry date, could be counter-productive.
28. She supported the suggestion that Mr B be allowed to write to her daughters periodically, during what effectively would be a trial period, followed by telephone contact if he succeeded in complying with the requirements of the order.
29. It was important that E and K maintain good contact with their mother. It would be detrimental to them if this broke down as a result of Mr B's frustration at having no contact at all and his total exclusion from the family relationships.
30. She would notify the local authority of her husband's release date.
The Official Solicitor's submissions
The Official Solicitor submissions were as follows:
1. Mrs B's revised schedule of admissions was acceptable to the Official Solicitor.
2. A representative of the Official Solicitor had met with E and K on a number of occasions.
3. E was currently having regular face-to-face contact with Mrs B and was enjoying it.
4. E had expressed a wish to continue to have face-to-face contact with her mother and wanted contact to return to community based venues.
5. The local authority and Mrs B were working together to progress to contact in the community.
6. Whilst the Official Solicitor hoped that contact between Mrs B and E could continue and move to more community based venues, this had to be balanced against the risk of further breaches of the final order by Mr B, which were not in E's best interests.
7. The Official Solicitor hoped that contact with Mrs B would continue to be positive in the long term and urged the local authority to make every effort to facilitate contact with Mrs B when requested by E.
8. In relation to contact with Mr B, E said on 13 February and 8 May 2012 that she does not wish to have contact with him.
9. K had consistently told the Official Solicitor's representative that she wishes to continue to reside at H House, most recently on 13 February 2012 and 8 May 2012.
10. K had been largely consistent in requesting contact with Mrs B and at times had also expressed a wish to have contact with Mr B. However, during a recent visit on 8 May 2012, she said that she did not currently wish to have further face-to-face contact with her mother, but did wish to have telephone contact.
11. E and K had been residing at their current placement for over 18 months. It would be a matter of significant concern, and not in their best interests, if their placements were put at risk as a result of breaches of court orders regulating contact. Any final order needed to protect the placements.
12. Having reviewed the available evidence, the Official Solicitor supported a declaration that contact between Mrs B and E was in E's best interests 'whilst this is in accordance with her wishes and feelings, including in respect of her wish that Mr B not attend any contact sessions (it is noted that the current order prevents Mr B from attending contact sessions in any event).'
13. Similarly, the Official Solicitor supported a declaration that contact between Mrs B and K is in K's best interests 'whilst this is in accordance with her wishes and feelings, including in respect of her wish that Mr B not attend any contact sessions (it is noted that the current order prevents Mr B from attending contact sessions in any event).'
14. The Official Solicitor also supported injunctive relief being granted in relation to Mr B's future contact with E and K, so as to ensure that their wishes and feelings concerning contact with him are respected and that they are not placed at risk of harm.
15. The Official Solicitor reminded the court that:
16. The local authority needed to ensure that K's views were explored as accurately as possible.
17. The order needed to include a mechanism that would allow the local authority to respond to any future breaches of contact arrangements that were not in E's and/or K's best interests, including the possibility of returning to supervised contact within social services' premises.
At the conclusion of the hearing, counsel for the Official Solicitor submitted to me that:
1. In respect of the incident on 7 April 2011, the court was perfectly entitled to make findings of fact based on the parties' admissions, the CCTV evidence, the police recording of what was said and its impressions of the parties.
2. The Official Solicitor agreed with the local authority that the breaches of the order had had a negative impact.
3. The evidence indicated that K had been affected by the breaches ('Too much stress', 'angry').
4. The case for injunctions and penal notices against JB was overwhelming.
5. In respect of Mrs B, an order backed by a penal notice was appropriate, rather than permitting her to give undertakings.
6. Her behaviour had improved in recent months. However, there was a correlation between her behaviour and her husband being on the scene. He would be with her again in the near future and the real test was yet to come. Anything which fortified her resolve, and reinforced her determination to ignore suggestions or temptations to breach the order, was good and in the best interests of E and K.
7. As to the term of any injunctions and penal notices, it was preferable for the court to make them permanent, with liberty to the parties to apply to have them discharged in the future if they could be shown to be no longer appropriate.
8. It was preferable to have two orders, one concerning contact and the other setting out the injunctions.
9. The recitals in the draft order prepared by counsel for the local authority were helpful.
10. The order should provide that Mr B must not, whether by himself or by agents, do anything intended or likely to have the effect of undermining the placements of E and K at H House. Such a clause was fundamental to the security of their placements and in their best interests.
11. Given JB's record of offending over more than half a century, the court could not be optimistic that he would be able to control his future conduct.
12. Nor could the court be confident that he would adhere to any directions from the professionals in the case. The incident of 7 April 2011 demonstrated that he did not comply with the directions of the person supervising contact.
13. The parties would not be in the current situation had JB been capable of responding to a mixture of carrots and sticks.
14. The court had to survey its powers, make protective orders for the benefit of E and K, and enforce them. That might be thought a stark or extreme position but this was an extreme case.
15. It was appropriate to end the litigation today, having regard to the duration of the proceedings and the justified pessimism about JB's capacity to modify his behaviour following release from prison. In the unlikely event that his behaviour improved, he could apply to the court for contact.
16. If JB's current prison sentence proved to have a salutary effect on his conduct then the local authority could be relied upon to review the contact arrangements and to explore the possibilities of contact with JB. The cost of a further review hearing was disproportionate given the historical record.
17. The court should authorise the local authority to obtain details of JB's convictions for gross indecency and indecent exposure given that the information might be relevant to any unsupervised contact in future.
The statutory provisions are well-known to the parties. This is a decision that turns mainly on the view taken by the court of the relevant facts rather than the view taken by him of the law or the meaning of a particular provision.
I will therefore keep this section brief and its purpose is to emphasise to the parties that I have considered the relevant provisions in coming to my decision.
Statutory principles
Section 1 provides that a person must be assumed to have capacity unless it is established that she lacks capacity; a person is not be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success; a person is not to be treated as unable to make a decision merely because she makes an unwise decision; 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 her best interests; and 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.
Best interests and section 4
Guidance as to how to determine P's best interests is set out in Section 4 of the Mental Capacity Act 2005:
Section 4 Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(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.'
Balancing the considerations and "magnetic importance"
In the case of ITW v Z [2009] EWHC 2525 (Fam), Munby J (as he then was) gave the following guidance with regard to the different considerations listed in section 4 which the decision-maker must have in mind:[4]
".... it may be useful to make three points, very familiar in the context of those other jurisdictions, which, allowing for the somewhat different context with which I am here concerned, seem to me to be of equal application to the statutory scheme under sections 1 and 4 of the 2005 Act:
i. 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".
ii. 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.
iii. The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of "magnetic importance" in influencing or even determining the outcome."
Significance of the person's own wishes and feelings
The weight to be given to an incapacitated person's own wishes was also dealt with in the case of ITW v Z [2009] EWHC 2525 (Fam),[5]
i. First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124].
ii. Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, 'issue specific', so in a similar way the weight to be attached to P's wishes and feelings will likewise be issue specific.
iii. Thirdly, in considering the weight and importance to be attached to P's wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as:
a. the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];
b. the strength and consistency of the views being expressed by P;
c. the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];
d. the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
e. crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.
Significance of the family and family care
In the recent Neary[6] case, Peter Jackson J reminded local authorities, the courts and others of the importance of family life and the significance to be attached to it:
"Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for family life where it exists. The burden is always on the State to show that an incapacitated person's welfare cannot be sustained by living and being looked after by his or her family, with or without outside support."
This important decision is one of a number of judgments dealing with this issue. Other relevant cases include in Re MM,[7] where Munby J (as he then was) stated:
"[115] … As I said in Re S, at para [48]:
'I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re K …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.
[116] We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.
[117] At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council [2002] 1 FLR 217 at para [43].
[118] The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at paras [90]-[92], and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [27]. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444, at para [8].
[119] There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk."
A balance-sheet approach
The best interests test is an objective test, concerned with the best interests of P and not the best interests of another person. The following passage concerning the need for a balance-sheet approach to best interests comes from the President's judgment in the case of Re S (Adult's lack of capacity: carer and residence) [2003] FLR 1235:[8]
"The welfare of the mentally disabled person is paramount. The question, accordingly, is: which outcome will best serve her interests? Further, it is clear that the court goes about deciding that question by drawing up the balance sheet identified by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at 560F–560H:
'Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit … Then on the other sheet the judge should write any counter-balancing disbenefits to the applicant … Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.'"
European Convention on Human Rights
Article 8 provides a qualified right that everyone has the right to respect for their private and family life, home and correspondence. It is engaged in relation both to a care regime at home and a care regime in a nursing home. Any interference with P's family or private life must be authorised by law, proportionate ("necessary in a democratic society") and for a permitted purpose, which here would be for the protection of her health.
The positive obligation to respect the right to family life in the area of adult care is reflected in numerous domestic and European cases, including Hillingdon LBC v Neary[9] and aIn Re S (Adult Patient)(Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam).
An intervention with the parties' rights under Article 8 is a serious intervention by the state which requires to be justified under Article 8.2.[10] It is only where the best interests of the person concerned compellingly require placement away from the family environment that such placement can be justified as a proportionate interference with their rights under Article 8 and those of relevant family members.[11]
When focusing on the Article 8 rights of the person, and any other relevant person, the court should consider the nature and strength of the evidence of the risk of harm. There must, as Peter Jackson J observed in Hillingdon LBC v Neary at paragraph 15(3), be a proper, factual basis for such concerns.
Code of Practice
In coming to my decision, I have considered the relevant codes of practice, as required by section of the 2005 Act:
42 Codes of Practice …
(5) If it appears to a court or tribunal conducting any criminal or civil proceedings —
(a) a provision of a code, or
(b) a failure to comply with a code,
is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.
The relevant codes here is the Mental Capacity: Code of Practice (Department for Constitutional Affairs, London: TSO, 2007).
More generally, the Code does not have statutory force but there ought to be cogent reasons for any departure.[12]
I have not received any submissions concerning section 42 and the codes, and I suspect that is because the codes are well-known to the parties and the ways in which they apply to the present case are clear and not in dispute.
1. I find that, so far as reasonably practicable, E and K have been permitted and encouraged to participate as fully as possible in the decision-making process.
2. Both of them have had many opportunities to express their wishes and preferences, and have done so. As the Official Solicitor noted, it is important that all parties bear in mind that E and K are individuals and that each is capable of expressing her own wishes and feelings. Therefore there cannot necessarily be a general approach taken to E and K's best interests in respect of contact as they have each expressed different wishes and feelings with regard to contact with Mrs B and with Mr B.
3. I find that it is unlikely that E's and K's capacity will improve within the time available to enable one or both of them to make the relevant decisions for themselves.
4. The wishes and feelings of E and K are important factors to be taken into account in reaching this decision. In taking their wishes and feelings into account, I have considered the case of ITW v Z,[13] the degree of incapacity, the strength and consistency of their views, the likely impact of knowing that their wishes and feelings are being overridden (if my decision is contrary to their wishes), the extent to which their wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which their wishes and feelings can properly be accommodated within the court's overall assessment of her best interests.
5. I have taken into account the statements and representations of Mr and Mrs B and the submissions made by their counsel.
6. I have given weight to the importance of their marriage and family life.
7. Mr and Mrs B both admit breaching the court's order of 25 January 2011.
8. The breaches were significant. It is not necessary to rely on Mr B's history of breaching other orders in order to support injunctions and penal notices.
9. The breach on 7 April 2011 was exceptionally serious. The CCTV clearly shows JB driving his car at Mr F, not around him, accelerating and carrying him on the bonnet of the car for at least 50 feet.
10. Mrs B was not a passive observer. She got out of the car with her husband to remonstrate with Mr F and shouted and swore at him in the presence of K.
11. Mr F, the contact supervisor, was off work for several weeks afterwards and received counselling. The role played by him, and the appropriateness of his behaviour, have been questioned. In my view, his conduct was appropriate, indeed exemplary, given the circumstances. I do not accept that he manhandled K.
12. Even if K went to the car willingly, that would not justify Mr and Mrs B's conduct because the court's consent order in January 2011 included a declaration that K lacks capacity to make her own decisions about residence and contact.
13. Any future breaches of the kind that occurred on 7 April 2011 will carry a significant risk of a significant period of imprisonment. That is not bias or prejudging the outcome — obviously the court will examine the precise facts and any mitigating circumstances carefully — It is simply giving Mr and Mrs B fair warning of how seriously the court regards the breach on 7 April, and all breaches of that kind. Persons supervising contact in pursuance of a court order do a difficult and at times risky job and they must be protected by the courts. It is not in E's and K's best interests that contact orders and arrangements sanctioned by the court as being in their best interests are breached.
14. The incident on 1 July 2011, when SB attended S-works and told K that she wanted her to speak to a special lady, was also very serious and involved some planning. Again, any repetition of that kind of incident is likely to be regarded as a serious contempt of court and dealt with accordingly.
15. The incident at the night club on 4 October 2011 was a further serious and deliberate breach of the court's order, which also involved a degree of planning.
16. It is not in E or K's best interests that orders made in their best interests, after each party has had an opportunity to file their evidence and make representations, should be breached. Such breaches introduce anxiety, disruption and uncertainty into arrangements which the court sanctioned as being in their best interests.
17. While allowances can be made for litigants in person who struggle with time limits and day-to-day procedural matters, it is usually appropriate and desirable that courts enforce the substance of their orders. If parties or other persons can ignore the substance of court orders then the incapacitated person is not protected, and legal proceedings and court orders serve little purpose.
18. The option of committal to prison exists because it has been found to have utility in appropriate cases where a party does not comply with court orders concerning residence, contact and the like.
19. Injunctive relief is appropriate in relation to Mr B's future contact with E and K, so as to ensure that their wishes and feelings concerning contact with him are respected and that they are not placed at risk of harm.
20. It would be unwise of me to place much reliance on Mr B's evidence, promises and representations at this stage. To date, he has 'demonstrated a concerning and repeated failure to adhere to the terms of [this court's] order', which was an order to which he consented.
21. If, in the future, he demonstrates that he can comply with the court's orders for a period which is significant then, of course, my confidence in his compliance and co-operation will increase in line with that.
22. Mr B's wife asked me to give her credit for the fact that she is of good character and I give weight to that. Her conduct in 2011 was out-of-keeping with her known previous conduct. JB's forensic history is somewhat different. In addition to his serious breaches of this court's order, he has a record of persistent offending stretching back over half a century. His criminal record of 164 offences (many for dishonesty) has been compiled under 24 different names and three dates of birth, and includes failures to answer to bail and breaches of court orders. He has served over 20 terms of imprisonment, which indicates that imprisonment has often not deterred him from committing further imprisonable offences. This reinforces the impression that he struggles to comply with legal requirements and orders, and suggests that a penal notice, with the risk of committal, may prove not to be an effective deterrent.
23. The court cannot be confident that he will adhere to any directions from the professionals in the case. The incident of 7 April 2011 demonstrated that he did not comply with the directions of the person supervising contact.
24. I give JB credit for his admissions and for acknowledging that any contact with him needs to be subject to conditions.
25. I also accept the following propositions put forward on his behalf:
26. Having read the order and memorandum of January 2011 carefully, I do not accept that:
27. Arguably, the order and memorandum of January 2011 could have been better drafted. Nevertheless, in my view, the order of 25 January 2011 was sufficiently clear as regards contact with JB. Paragraph 12 of the order stated that, 'For the avoidance of doubt JB shall not initiate, seek or have any contact with E and K save as provided for in paragraph 11.' To me, that is unambiguous. Paragraph 11 provided that any contact with JB was at the discretion of the local authority and must be supervised and arranged in advance. Again, to me, that is unambiguous.
28. If further evidence or persuasion is necessary on the question of whether JB realised he was acting in breach of the order, it can be found in the fact that the requirements and conditions set out in the order and memorandum were reinforced and reiterated for his benefit in subsequent correspondence. He received letters telling him that he had committed serious breaches of the order; that any telephone contact not authorised by the local authority was a breach of the order; and that the order stipulated 'that he shall not have any contact with E and K and that is the position until [the local authority] determines that contact is appropriate.' On 9 March, his solicitors acknowledged in writing that their client had been made 'fully aware of the terms of the order' and had been advised to refrain from speaking directly on the telephone to K. Nevertheless, he continued to have some telephone contact and when he was 'reminded by staff about the terms of the court order he threatened them, saying he would "come down and sort staff out".'
29. I do not think that paragraph c of the contact memorandum attached to the order of January 2011 particularly helps Mr and Mrs B: 'The possible development of contact between the parties, as envisaged within this Memorandum, is wholly subject to the individual wishes and feelings of E and K and no contact will take place contrary to their wishes and feelings.' To me, the natural meaning of that paragraph is that the 'possible' development of contact in line with the order and memorandum will always be subject to the caveat that it is not contrary to wishes and feelings of E and K.
30. The final order made in January 2011 ordered Mr B not to initiate, seek or have any contact with E save where contact was permitted by the local authority, subject to E's wishes and feelings. Mr B accepted that he had contact with E on 24 February 2011 and 4 October 2011 and that such contact had not been agreed with the local authority. This contact was therefore contrary to E's expressed wishes and feelings regarding contact with him.
31. I do not accept that professional carers escalated matters unnecessarily. They did not return the matter to court until the order had been breached on a number of occasions and tried alternative strategies to secure compliance before then.
32. In my view, the case for injunctions and penal notices against Mr B is overwhelming. The repeated and serious nature of the breaches means that penal notices are required to ensure that the injunctions are as effective as possible, and in order to protect E's and K's best interests.
33. It is true that the independent experts recommended a process 'that includes both SB and JB as far as is possible,' and expressed their opinion that 'K could have regular contact with JB in the short term provided contact is in line with her expressed wishes at the time and is supervised.' However, the situation deteriorated rapidly after the order in January 2011 was made. Furthermore, it was JB's conduct that made contact with him impractical, not an unreasonable refusal on the part of the local authority to allow any contact to take place. Very serious breaches of the order occurred in 2011 and the situation facing me today is very different to that when the independent experts visited.
34. Contact with JB carries a risk of the placements at H House being undermined.
35. Mrs B deserves credit for her admissions; her good character; her past care of her daughters; the lack of significant concern for their welfare until JB became involved with the family; and the successful contact that has taken place since March 2012. I accept that at times she felt isolated and unsupported after the hearing in January 2011. She tells me, sincerely I believe, that she wishes to get on with professional carers and staff; that she is confident that she can work with them; and that she agrees to contact being at the local authority's discretion. She acknowledges that for a time she lost sight of her daughters' best interests. Recently, she has demonstrated a greater ability to express her grievances and complaints in a constructive manner. All of these things are positive and hopeful indicators.
36. Nevertheless, in my view, a penal notice directed towards her is also necessary. She was involved in serious breaches of the court's order, including the incident of 7 April 2012, and has behaved in a way that has harmed E and K. Allowing her simply to give an undertaking would not convey the seriousness of the breaches.
37. There is a correlation between her behaviour and her husband being on the scene. He will soon be with her again and the real test is yet to come. Anything which fortifies her resolve to comply with the court's order, and to resist any suggestions or temptations to breach it, is the best interests of E and K.
38. Although Mrs B concedes that the incident in February 2011 led to a significant deterioration in her contact and relationship with her daughters, which she regrets, Mr B appears to lack insight into the distress that his actions have caused E and K and the effect of his conduct on them.
39. Both E and K were adversely affected by the breaches, albeit (having considered the representations of Mr B's counsel) not perhaps quite to the extent claimed by the local authority. The evidence indicates that the unauthorised contact with Mr B on 24 February 2011 had a detrimental effect on E who was angry and who then neglected her personal care, and E refused all contact between March 2011 and early 2012.
40. The relationship between E and K and their mother is important and needs to be promoted wherever possible. It is important that their continued residence at H House does not result in further isolation from her.
41. E is currently having regular face-to-face contact with Mrs B and is enjoying it. She would like contact to return to community-based venues, and the local authority and Mrs B are working together to progress this. The benefits of community venues must be balanced against the risk of further breaches of the final order by Mr B, which would not be in E's best interests.
42. K had been largely consistent in requesting contact with Mrs B although, during a recent visit on 8 May 2012, she said that currently she did not wish to have further face-to-face contact with her mother, but did wish for telephone contact.
43. The available evidence supports a declaration that contact between Mrs B and E and K is in their best interests provided this accords with their wishes and feelings.
44. Since her removal, E had consistently stated that she does not wish to have contact with Mr B. She repeated this to the Official Solicitor's representative during visits on 13 February and 8 May 2012. Given her consistency on the issue, significant weight must be given to her expressed wishes.
45. At times K has also expressed a wish to have contact with Mr B. Although K's wishes and feelings in relation to contact with Mr B are important, the weight given to them must take into account the opinion of the joint experts (E/29):
'74. The additional burden of ADHD makes it more difficult for K to process information or to carry out some higher cognitive functions. This would be evident in her impulsivity, inability to complete activities or conversations, poor planning skills etc. She is demonstrably impulsive and rather flippant in her decision making and appears to make assertions about her wishes without much consideration of the information provided. It is rather unsurprising that she is unable to offer a consistent point of view regarding these decisions and tends to change her mind regularly.'
46. Furthermore, substantial difficulties have arisen during contact sessions since the court order in January 2011. The evidence continues to be that so far Mr B has been unable to work co-operatively with the local authority with regard to the contact arrangements. Unless and until there is significant evidence over a period of time that he is able to work co-operatively with the local authority, contact with him has to be limited.
47. K has consistently told the Official Solicitor's representative that she wishes to continue to reside at H House, most recently on 13 February and 8 May 2012.
48. E and K have resided at their current placement for over 18 months. It would be a matter of significant concern, and not in their best interests, if their placements were put at risk as a result of breaches of court orders regulating contact. The order needs to protect their placements.
49. The independent experts stated in their interim report that there was a significant risk that the family might abscond with K and E in order to "get away" from the local authority. Having regard to the events of 2011, there remains a risk that E and K could be taken from their place of residence, or away from their professional carers, without legal authority. It is appropriate that the local authority continues to hold their passports, pursuant to a court order.
50. In terms of the duration of the injunctions and penal notices, the true test is yet to come. This is whether Mr B will be able to adhere to the court's order following his release from prison and whether in his company Mrs B will be able to maintain the recent improvements in the quality of her contact with E and K and professionals.
51. It is significant that JB stated that he will abide by the terms of contact provided that the local authority and its employees 'stop fighting us.' That is quite a conditional commitment. A short period of compliance following his release from prison would not, in my view, be likely to carry much weight in terms of persuading me that the injunctions and penal notices are no longer necessary. In my opinion, the injunctions and penal notices should remain in force for a minimum of one year following Mr B's release from prison. If he and his wife can observe the contact arrangements and other terms of my order for that length of time then it would be appropriate for the injunctions and penal notices to lapse, and to consider increasing contact.
52. The court's order needs a mechanism that enables the local authority to respond to any future breaches of the contact arrangements which are not in E's and/or K's best interests, including the possibility of returning to supervised contact within social services' premises.
53. On balance, I accept that Mr B may be more likely to comply with the court's order if there is an incentive to comply in addition to strict penalties for non-compliance. An indefinite order prohibiting any contact with him, with no time limit or expiry date, could be counter-productive. It is important that E and K maintain good contact with their mother; and it would be detrimental to them if this broke down as a result of Mr B's frustration at having no contact and no prospect of contact, and his total exclusion from the family relationships.
54. Mr B's recent offending history includes offences of indecent exposure with intent to insult a female and committing an act outraging public decency by behaving in an indecent manner. Given the vulnerability of E and K, and the comments of the independent experts, it is appropriate that local authority risk assessments include consideration of the details of these offences, so that their relevance to decisions about contact with E and K (if any) is clear.
Summary and conclusion
1. JB and SB have both committed serious breaches of the court's earlier order and injunctions and penal notices are appropriate in both cases.
2. SB and the local authority have worked well together recently and contact between SB and her daughters can be left at the discretion of the local authority.
3. The real test is yet to come. It consists of JB's conduct following his release from prison and the extent to which his wife's conduct and compliance with my order is influenced by his return home and any pressure he may place on her.
4. At this stage, I have good reasons for having very limited confidence in JB's capacity to comply with my order and with the directions of professional staff.
5. I have made clear how seriously I regard the breaches in 2011 and the powers which are available to me in the event of any further breaches.
6. For the avoidance of doubt, I do believe that there are cases where prison is the appropriate sanction for contempt of court.
7. On the "carrot" side of the equation, I accept that, if a breach results in punishment or reduced contact, improved conduct over time should lead to improved contact, provided that it accords with the wishes of those involved. In addition, the likelihood of JB complying with the order and contact arrangements may be slightly better if he has an incentive or target to aim at.
8. On balance, I do not believe that any contact during the first three months after his release from prison is appropriate. He will need to demonstrate a period of compliance, of non-disruption, before I can relax any of the restrictions. These three months may well be a difficult period for Mrs B, and it is necessary to see how JB's return home affects her conduct and contact with her daughters, and whether JB is able to adhere to my order.
9. If, after three months, he has complied with my order then I believe that it would be in E's and K's best interests for him to be permitted to reply to any letters or cards they wish to send him (if any). It will be necessary for his replies to be read, so that the professional carers and the court can be satisfied that the placements are not being undermined by the correspondence.
10. If that goes well then limited telephone contact would be appropriate provided that E and/or K wish it and initiate it. Again, this contact will need to be supervised in order to check that the placements are not being undermined. It is important that it is contact that E and/or K has initiated, rather than Mrs B passing the phone to her husband after E or K have called her.
11. If all of this goes smoothly, and the position is reached that Mr B has complied with the court's order and contact arrangements for a year, a further hearing would be justified, together with an expert report on whether face-to-face contact is in accordance with E's and K's wishes, feelings and best interests, and how matters can best be progressed. At this moment, a further expert report is not appropriate in my opinion because of JB's serious breaches of the previous order and the court's limited confidence. He has yet to demonstrate that he has the capacity to comply with contact restrictions and arrangements made for E and K.
12. The order regulating contact needs to be clear, simple and realistic.
13. If an advocate can be identified for Mr and Mrs B, it is likely that this would be helpful.
Having regard to the above considerations, my order is as follows:
UPON hearing counsel for the Applicant, counsel for the Official Solicitor for the First and Second Respondents, counsel for the Third Respondent and counsel for the Fourth Respondent
WHEREAS
(i) the Court has read the evidence filed;
(ii) the Court has received schedules of admissions from SB and JB
AND WHEREAS
(i) the Court determined on 25 January 2011 that E and K each lack capacity to make decisions as to their residence, care and contact and that there has been no material change of circumstances in this regard.
(ii) the declarations made on 25 January 2011 that it is lawful and in E's and K's best interests to reside at and to receive care at H House remain in force.
IT IS HEREBY DECLARED THAT:
1. It is lawful and in E's and K's best interests to have their contact with SB and JB restricted to the extent set out in this order.
IT IS ORDERED THAT:
2. Contact between E and K and their mother, SB, shall take place in person and/or on the telephone at the discretion of the Applicant (as to frequency, duration, venue and nature of any supervision) subject to taking E's and K's wishes and feelings into account.
3. Until further order, the only contact that JB is permitted to have with E and K is as follows:
a) Prior to his release from prison, JB shall have no contact of any kind with E or K.
b) During the three month period beginning with the day of his release from prison, JB shall have no contact of any kind with E or K.
c) During the three month period following that in the previous paragraph (months 4, 5 and 6), JB may reply once by letter or card to any and each letter or card sent to him by E and/or K. All such letters or cards sent by JB must be addressed to the Applicant or a member of staff at H House nominated by the Applicant who may read them and who are not required to pass on letters or cards that breach paragraph 4 below.
d) During the six month period following that in the previous paragraph (months 7, 8, 9, 10,11, 12), JB may have telephone contact with E and/or K once each week for up to ten minutes at a time if and only if E and/or K has expressed to the Applicant and/or staff at H House a wish to telephone him. All such telephone calls shall be made by the Applicant or staff at H House and supervised by them through the use of a speakerphone or like apparatus and calls may be terminated by the person supervising the call if JB says anything that breaches paragraph 4 below.
e) Such other contact as has been permitted in writing by the Applicant in advance as being in K and E's best interests and in accordance with their wishes and feelings.
4. JB must not in any letters, cards or telephone calls to E and K permitted under the previous paragraph
a) criticise the Applicant, staff at H House or any professional carer;
b) say or write anything intended to or likely to have the effect of undermining their placements at H House;
c) swear or threaten violence or use threatening language.
5. JB shall not have any contact with E or K, including any telephone or visual contact, other than that provided for in paragraph 3 above.
6. JB and/or SB shall not whether by himself and/or herself, or by encouraging others, seek to remove or attempt to remove E or K from H House, T by T, S-works, or any day placement they are attending, or seek to remove them from, or interfere in any way with, their planned activities or abduct them.
7. JB and SB must not do any of the following things in the presence or hearing of E or K or a professional involved in their care or welfare:
a) shout;
b) swear;
c) threaten violence or use threatening language or behaviour;
d) use disrespectful communication or body language;
e) use any form of violence or intimidation;
f) disrespect the wishes and feelings of E and/or K;
g) grab or pull or mandhandle or otherwise physically assault E or K.
8. JB shall not come within 100 metres of E and K without the written permission, in advance, of the Applicant and shall not come within 100 metres of the principal entrance of the following locations:
a) H House
b) T by T
c) S-works
9. The manager of H House and the managers of the daytime centres are to be served with a copy of this order.
10. The Court gives permission for a Penal Notice to be attached to paragraphs 3, 4, 5, 6, 7 and 8 of this order.
11. Liberty to apply for 12 months from the date of this order.
12. These proceedings are reserved to District Judges Eldergill and Ralton (subject to the necessity of seeking relief from another judge of the Court of Protection on an urgent basis).
13. No order as to costs, save a detailed assessment of any publicly funded parties' costs.
YOU MUST OBEY THIS ORDER. IF YOU, THE THIRD RESPONDENT OR YOU THE FOURTH RESPONDENT DISOBEY THE INJUNCTIONS MADE AT PARAGRAPH 3,4,5,6,7 AND 8 ABOVE, YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND YOU MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED.
The following issues arose during the hearing.
The compellability issue
The extent to which Mr B could compel his wife to give oral evidence on his behalf, and the extent to which the court had a discretion not to permit him to call her, because it would be oppressive, was canvassed on the first day of the hearing.
By this time, Mrs B had agreed a schedule of admissions, some of which could not easily be reconciled with her previous statements denying breaches of the contact arrangements.
It was therefore awkward for her that her husband wished to compel her to give evidence on his behalf, presumably in the hope that she would confirm her previous statements and corroborate his evidence.
The view I took was that:
1. The local authority must decide which breaches of the original order it sought to prove against Mr B. If it decided to seek to prove facts concerning which Mrs B had relevant evidence to give, it would be unfair not to allow Mr B to rely on evidence he considered to be necessary to disprove the facts alleged.
2. The focus then moved to Mr B, who had to decide whether to call his wife in his own defence, notwithstanding that this might put their marriage under strain.
3. If Mr B did proceed to call his wife to give evidence for him, she would no doubt be asked to explain the discrepancies between her admissions and her previous statements. That was a position she had placed herself in. She would have the benefit of section 14 of the Civil Evidence Act 1968 and being asked about previous inconsistent statements would be awkward for her, rather than oppressive.
Morgan v Morgan [1977] 2 WLR 712 was a stranger case and not particularly helpful to determining the issue in this case.
In the event, suitable schedules of admission were agreed and it became unnecessary for Mr B or Mrs B to give oral evidence.
The application for an adjournment
Mr B's counsel made an application for an adjournment on the second day, essentially on the grounds that his client had complied with some probation and other community-based orders in the past. He wanted time to prove this. I indicated that I was willing to proceed on the basis that Mr B had not breached probation and other community orders on a number of occasions. Even giving him every benefit of the doubt, it remained the case that his record of compliance with court orders was poor and that on many occasions imprisonment did not appear to have had a deterrent effect. It was unnecessary and disproportionate to adjourn the hearing.
Evidence of Mr D
There are a number of issues in respect of the report of Mr D (E55-63), including the fact that he was commissioned outside the litigation process by only one of the parties (the local authority) and on the basis of an unagreed letter of instructions, which was only disclosed within these proceedings. The local authority indicated at the pre-trial review that it did not intend to rely upon it.
Note 1 Mental Capacity Act 2005, s.2(1). [Back] Note 2 Mental Capacity Act 2005, s.2(2). [Back] Note 3 Mental Capacity Act 2005, s.3(1). [Back] Note 4 ITW v Z [2009] EWHC 2525 (Fam), per Munby J, at para. 32. [Back] Note 5 ITW v Z [2009] EWHC 2525 (Fam), per Munby J, at para. 35. [Back] Note 6 The London Borough of Hillingdon v Steven Neary and Mark Neary and Others [2011] EWHC 1377 (COP), at para 24. [Back] Note 7 Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, paras 115-121, per Munby J. [Back] Note 8 Re S (Adult’s lack of capacity: carer and residence) [2003] FLR 1235, per Wall J, at (14). [Back] Note 9 Hillingdon LBC v Neary [2011] EWHC 413 (COP). [Back] Note 10 LBB v JM, BK and CM (unreported, 5 February 2010). Hedley J. [Back] Note 11 The PCT v P, AH and a Local Authority [2009] EW Misc 10 (EWCOP), per Hedley J. [Back] Note 12 See R v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex p. Munjaz (FC) (Respondent), HL [2005] UKHL 58, per Lord Bingham. [Back] Note 13 ITW v Z [2009] EWHC 2525 (Fam), per Munby J, at para. 35. [Back]
