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Cases > Subject : Advance decision cases or Best interests or Bias or Deprivation of liberty - children

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Page name Sentence Summary
A Local Authority v AT and FE (2017) EWHC 2458 (Fam)

Child, no approved secure accommodation available, deprivation of liberty

"Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. ... I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. ... In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order. ... I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. ... In my view it is very important that ordinarily in these situations, which in plain language involve a child being 'locked up', the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so."

Buckinghamshire County Council v RT (2018) EWCOP 12

DOL - 17-year-old

"I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. ... RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place]. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night. ... Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. ... It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year. RT's 18th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18th birthday which in particular will enable him to have a say at that point."

Harrow CCG v IPJ (2018) EWCOP 44

Residence and care

"The Court is asked to determine where AJ should live and how he should be cared for. The applicant CCG has proposed an extensive package of care at the family home, with (most of) the financial arrangements managed by a third party broker. JA's parents, who are the Second and Third Respondents, do not agree the proposals and seek the dismissal of the application.

Hounslow Clinical Commissioning Group v RW (2019) EWCOP 12

Death

"This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. ... I would very much have liked to have been able to endorse a plan which permitted RW to return home. There is no doubt at all, as the history of this case shows, that RW would want to die at home. I do not know whether he would survive the transition but I should have been prepared to take that risk. However, PT would, in my judgement, continue to try to give his father food and water. As I speak these words he indicates to me that this is precisely what he would do. I have been told by Ms I that, at this stage, if PT were to attempt to feed his father there is a real risk that he would asphyxiate on any food given. I cannot permit RW to be exposed to the risk of ending his life in this way and, if I may say so, I would not be prepared to take that risk for PT either, especially having regard to all the loving care he has provided for his father. I endorse the applicant's plan. I indicate that it is in RW's best interest to have his sons with him as much as possible. I am not prepared to be prescriptive of the times and the circumstances in which the sons may visit. In this I reject the applicant's proposals in this respect."

JG v Kent and Medway NHS and Social Care Partnership Trust (2019) UKUT 187 (AAC)

Non-legal research by judge

Judicial summary from gov.uk website: "Mental Health First-tier Tribunal - Judicial Bias - Apparent bias - Breach of Natural Justice - Procedural Irregularity. Where a First-tier Tribunal judge undertook non-legal research by accessing a court of appeal judgment in respect of the appellant, did this lead to a presumption of bias and automatic disqualification? Did it lead to a conclusion of a real possibility of bias? Whether so doing amounts to a procedural irregularity leading to a breach of natural justice in that it rendered the hearing unfair. In the circumstances appertaining there can be no presumption of bias leading to automatic disqualification. On the facts of the case there was no real possibility of bias. Undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair."

LB Islington v AA (2018) EWCOP 24

Residence, wishes and feelings

"These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge."

London Borough of Hackney v SJF (2019) EWCOP 8

Residence, contact, tenancy

"SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine: (a) Whether she has capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements; and (b) If she lacks capacity in the relevant domains, where she should live, whether her contact with her son should be restricted and whether tenancy agreements should be terminated/entered into."

NHS Cumbria CCG v Rushton (2018) EWCOP 41

Withdrawal of CANH; advance decision

"This is an application regarding the proposed withdrawal of clinically assisted nutrition and hydration in respect of Mrs Jillian Rushton, who is now 85 years of age. Since sustaining a traumatic head injury in December 2015, Mrs Rushton has suffered from a prolonged period of disorder of consciousness. Insofar as a label is relevant, the consensus of medical opinion, in respect of which there is no dissent at all, is that she is in a persistent vegetative state (PVS). In their recent guidance, ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’, the Royal College of Physicians and the British Medical Association have noted that the importance of obtaining a precise and definitive diagnosis has reduced. It is recognised by the Courts and clinicians that drawing a firm distinction between vegetative state and minimally conscious state is frequently both artificial and unnecessary. In practice, when assessing best interests, information about the patient’s current condition and prognosis for functional recovery and the level of confidence with which these can be evaluated is invariably of greater importance than a precise diagnosis. ... It perhaps requires to be said, though in my view it should be regarded as axiomatic, that the medical profession must give these advanced decisions the utmost care, attention and scrutiny. I am confident the profession does but I regret to say that I do not think sufficient care and scrutiny took place here. The lesson is an obvious one and needs no amplification. Where advanced decisions have been drawn up and placed with GP records there is an onerous burden on the GP to ensure, wherever possible, that they are made available to clinicians in hospital. By this I mean a copy of the decision should be made available and placed within the hospital records with the objective that the document should follow the patient. It need hardly be said that it will rarely, if ever, be sufficient to summarise an advance decision in a telephone conversation. ... The family have ... made it clear to me that she would not have regarded her present situation as tolerable. Whilst I have no doubt that she would understand the commitment of her son, Tim and his profound resistance to letting her go, I have equally no doubt that she would want to be let go and I have no hesitation in concluding that it is my responsibility to respect this."

PBM v TGT (2019) EWCOP 6

Marriage, prenuptial agreement, information about extent of assets, etc

"... I identified the issues that would need to be considered at the final hearing. These were: (a) PBM's capacity to: (i) marry; (ii) make a will; (iii) enter into a prenuptial agreement; (iv) manage his property and affairs (or part thereof); (v) make decisions as to the arrangements for his care; and (vi) make decisions in relation to contact with others. (b) If PBM lacks capacity to manage his property and affairs: (i) whether (if he has capacity to enter into an antenuptial agreement and/or make a will) he should be provided with information about the extent of his assets; (ii) whether it is in his best interest for the court to direct any changes or further safeguards in relation to the current arrangement for their management; (iii) what steps should be taken to assist PBM in developing skills which may assist him in gaining capacity in that regard. (c) If PBM lacks capacity as to his care arrangements, whether it is in his best interest for further directions to be given by the court in relation thereto."

PW v Chelsea and Westminster Hospital NHS Foundation Trust (2018) EWCA Civ 1067

Best interests/transparency

"Two central criticisms are made of the judgment below, and the judge's determination of best interests. First, that the judge failed to appreciate and therefore give any or any adequate weight to RW's wishes and feeling. These were, contrary to her findings, ascertainable; they pointed to the fact that he was a "fighter", to the value he ascribed to life and to his desire to "hold fast to it" no matter how "poor" or "vestigial" in nature it was. Secondly, the judge overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide would remove or mitigate that risk. In the result, and in any event, it is submitted the judge's overall analysis of what was in RW's best interests failed adequately to address the relevant issues and evidence, and was a flawed one. In my view neither criticism is well-founded." Another aspect of this case related to the transparency order/reporting restrictions.

Raqeeb v Barts NHS Foundation Trust (2019) EWHC 2531 (Admin)

Withdrawal of life-sustaining treatment - transfer to Italy

This judgment related to: (a) the child's (Tafida's) judicial review of the Trust's decision not to agree to transfer her to an Italian hospital; (b) the Trust's application for a specific issue order under s8 Children Act 1989, and for an inherent jurisdiction declaration, that it was in the child's best interests for life-sustaining treatment to be withdrawn. Both applications were dismissed, with the effect that one of the hospitals had to continue life-sustaining treatment and, there being no justification for interfering with Tafida's right (under Article 56 Treaty for the Functioning of the European Union) to receive treatment in another EU state, it was anticipated that the transfer would take place. The judgment provides guidance on dealing with a request by parents of an EU citizen child for transfer for medical treatment in another Member State.

Re A-F (Children) (2018) EWHC 138 (Fam)

DOL - children

"... [T]he situation of the "young" or "very young" ... does not involve a "confinement" for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West "acid test". ... For all present purposes, "confinement" means not simply "confining" a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. ... Now at this point in the analysis a difficult question arises which has not hitherto been addressed, at least directly. At what point in the child's development, and by reference to what criteria, does one determine whether and when a state of affairs satisfying the "acid test" in Cheshire West which has hitherto not involved a "confinement" for the purposes of Storck component (a), and where Article 5 has accordingly not been engaged, becomes a "confinement" for that purpose, therefore engaging Article 5 (unless, that is, a valid consent has been given by someone exercising parental responsibility)? ... [W]hether a state of affairs which satisfies the "acid test" amounts to a "confinement" for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ... The question is raised as to whether it is possible to identify a minimum age below which a child is unlikely to be "confined", and hence to be deprived of their liberty, given the expectation that a comparable child of the same age would also likely be under continuous supervision and control and not free to leave. ... Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child of (to use Lord Kerr's phraseology) the same "age", "station", "familial background" and "relative maturity" who is "free from disability". ...[T]he best I can do, by way, I emphasise, of little more than 'rule of thumb', is to suggest that: (i) A child aged 10, even if under pretty constant supervision, is unlikely to be "confined" for the purpose of Storck component (a). (ii) A child aged 11, if under constant supervision, may, in contrast be so "confined", though the court should be astute to avoid coming too readily to such a conclusion. (iii) Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion. That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr. The question is also raised whether, in undertaking the comparison required by the "acid test", the comparison should be made with a 'typical' child of the same age who is subject to a care order. The answer in my judgment is quite clearly, No. ... I turn to matters of process and procedure."

Re A-F (Children) (No 2) (2018) EWHC 2129 (Fam)

DOL - children

"The purpose of the hearing, as it developed, was to deal with four matters: (i) A review of any relevant developments since the previous hearing in August 2017. (ii) The making of final orders. (iii) In that context, consideration of the implications of the fact that two of the children with whom I am concerned either have had or will, during the currency of the final order, if granted, have their sixteenth birthday. (iv) The formulation, if possible, of standard forms of order for use in such cases."

Re D (A Child) (2017) EWCA Civ 1695

DOL

"This is an appeal from an order of Keehan J sitting in the Court of Protection dated 15 March 2016, following a judgment handed down on 21 January 2016: Birmingham City Council v D [2016] EWCOP 8M, [2016] PTSR 1129. Permission to appeal was granted by McFarlane LJ on 14 June 2016. The proceedings related to D, who was born on 23 April 1999, and was therefore 16 years old when the matter was heard by Keehan J in November 2015. Similar issues in relation to D had been before Keehan J in the Family Division earlier in 2015 when D was 15 years old, judgment (which was not appealed) having been handed down on 31 March 2015: Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam)M, [2016] 1 FLR 142B. In each case, the essential question was whether D was being deprived of his liberty within the meaning of and for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms."

Re M: A v Z (2018) EWCOP 4

COP bias

"This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M's mother and father in law who have the care of X, M's son age 12. ... Mr Simblet relies on four grounds of appeal: (1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings. (2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings. (3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the [paternal grandparents] within the COP proceedings were unable to properly know the case against them or that they had to meet. (4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests."

Re T (A Child) (2018) EWCA Civ 2136

Secure accommodation

"This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act 1989, s 25 (CA 1989)."

Re Y (Autism - Care Proceedings - Deprivation of Liberty): LB Barking and Dagenham v Mr and Mrs X (2018) EWHC B63

DOL of child

"The local authority, represented by Ms Mustafa of counsel, applies for a care order under Section 31 of the Children Act 1989 and for an order declaring that it is lawful for the local authority to deprive Y of his liberty. Y is the child of the First and Second Respondent parents. Mr and Mrs X are represented by Ms Prolingheuer of counsel. Mr and Mrs X oppose the application for a Care Order and DoL and submit he should return home to their care"

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