Mental capacity - Local authority - Supported accommodation - Family life

K v A Local Authority and others: CA (Civ Div) (Lord Justices Thorpe, Davis, Lady Justice Black): 8 February 2012

L was born in 1983 and had a diagnosis of mild mental retardation with an IQ of 59. It was common ground that he lacked capacity within the meaning of section 2 of the Mental Capacity Act 2005.

His mother ­disappeared when he was a baby and he was cared for by members of his paternal family in Trinidad. From 1996, he was cared for by his paternal aunt in the UK. He had regular contact with his father and his younger brother, D, who also lived in the UK. From 2001, L lived with his father and D. There was a short period of time when he was removed on the initiative of the defendant local authority before being returned to his father. The father acknowledged that there was a requirement for a long-term plan to move L into authority arranged care with a view to L gaining greater independence. However, the father was concerned that that plan should not proceed too quickly and he was fearful of further separation from L.

Protracted proceedings took place concerning L that had been initiated by L’s aunt as she had been particularly concerned about L’s return to his father. Numerous reports were obtained and concern was expressed that L was in an environment where he could not articulate his own wishes as opposed to what he perceived to be the wishes of his father. During 2009, it was reported that L had ­progressed. It was suggested that ­residential accommodation be identified for him. The authority encouraged the possibility of supported living.

In 2010, the matter came before the Court of Protection. The judge ­concluded that the balance of ­evidence favoured L remaining with his father, although that was strongly opposed by the aunt. However, the judge fully endorsed the plan that had been put forward by the authority, which was supported by the father, that L should move to independent ­living if that could be achieved.

In 2011, the matter returned to court. The main issue was whether it was in L’s best interests to move to supported living accommodation on a trial basis. A facility had been identified (the J placement) that was located a short bus journey from the family home and had staff on hand day and night. The father objected to the ­proposed move. The judge held that L’s interests were best met by the court authorising a trial period at the J ­placement. In her judgment she stated: ‘While the court must factor into the balancing exercise it has to undertake, the family life that L clearly has with [his father] and [D] that should not be the starting point.' The father appealed against the reasoning, not the conclusion, of the judge.

The issue for determination was whether article 8 of the European Convention on Human Rights required the court, in determining issues under the inherent jurisdiction or the 2005 act, to afford a priority to placement of an incapacitated adult in their family, or whether family life was simply one of all the relevant circumstances which the court had to consider under section 4 of the 2005 act. The appeal would be dismissed.

The correct approach of the judge in cases under the 2005 act was to ascertain the best interests of the incapacitated adult on the application of the checklist contained in section 4 of that act. The judge should then ask whether the resulting conclusion amounted to a violation of rights under article 8 of the European Convention on Human Rights and whether that ­violation was nonetheless necessary and proportionate. It was of great importance that regard should be had to article 8 when decisions were made on behalf of an adult who lacked capacity. Courts and local authorities were both public authorities and were not to interfere with the exercise of that right except as provided for by article 8(2) of the convention. It did not require a prescribed starting point to achieve compliance with that. In ­practice, there might be a conflict between the incapacitated person’s right to family life and that person’s right to private life (see [35], [52] of the judgment).

A prescribed starting point risked deflecting the decision maker’s ­attention from one aspect of article 8 of the convention, private life, by focusing his attention on another, namely family life. In its wider form, incorporating reference to both private and family life, there was a danger that it contained within it an inherent conflict: for elements of private life, such as the right to personal development and the right to establish relationships with other human beings and the outside world, might not always be entirely compatible with existing family life and particularly not with family life in the sense of continuing to live within the existing family home. A tentative move towards supported accommodation was not necessarily a termination of, or a significant interference with, the incapacitated adult’s family life (see [30], [53] of the judgment).

The judge in the present case had directed herself correctly, had taken all relevant circumstances into account and had given due and proper weight to those factors that called for it (see [37], [54], [72] of the judgment). Decision of Theis J [2011] EWHC 2419 (Fam) affirmed.

Nick Armstrong for the father; Hilton Harrop-Griffiths for the authority; Victoria Butler-Cole for the official solicitor as L’s litigation friend.