WCC v GS [2011] EWHC 2244 (COP)
(1) GS lacked capacity to conduct litigation, to make decisions in respect of her care requirements, to decide where she wants to live and to decide issues relating to contact with her family. (2) It was in GS's best interest to remain at a care home. (3) Having set out an general guidance in relation to conditions imposed on contact, the court approved an agreed contact schedule between GS and her son.
Extract from judgment (guidance on contact)
50. ... Any consideration of GS's best interests must start on the premise that GS is entitled to see her children and in particular RS. This is of course independent of any rights of RS under Article 8 to see his mother. Therefore, when considering contact, the starting point must always be that there should be full and unrestricted contact between a parent and his or her child and that conditions should only be imposed on that contact if GS's best interests demand it.
51. In this case, a consideration of GS' best interests will include the safety and wellbeing of GS during contact. I am clear that this is a case where GS' best interests demand that contact have conditions attached to it. ...
52. Having decided that it is necessary to impose conditions in respect of contact, the imposed conditions must be reasonable and proportionate having regard to their aim and purpose and the context of the overall situation. ...
53. When considering the types of conditions to impose both generally and in this case, the court needs to have the following considerations in mind.
- First, that there should be appropriate reviews of the conditions. Nothing should be set in stone and either the court should review the conditions and/or there should be a review by the local authority.
- Second, given the medical evidence, an end of life plan should be put in place. The health of elderly people can deteriorate quickly and it may come to a point when even members of a family who have been excluded from contact should be able to spend time with their parent or relative. Obviously there will be exceptional cases where the level of harm or potential for harm by a family member against a vulnerable person is such that even in an end of life scenario contact would not be appropriate, but these will be very exceptional and rare cases.
- Third, the length to which the conditions should address each step of a contact session. Thus, in some cases there will be a need for conditions to manage every step of the way from the arranging of the visit to the arrival of the family member at the home until his departure. In other cases, a more general approach can be appropriate.
- Fourth, the dates and times of visits will need to be set out clearly in a contact schedule.
- Fifth, whether a plan is needed to address problems, for example, the family member cannot get to the home on a particular day due to an emergency.
- Sixth, whether it is appropriate for financial assistance to be made available by a local authority or other relevant third party to the relative for travelling to and from a care home.
- Seventh, if the visit is to be supervised, who is to supervise and what level of supervision is required. In some cases the supervision may take the form of detailed note taking by an independent person; in other cases it may be a cursory check-up by a member of the care home staff; in yet other cases, the allocated social worker may attend to just keep a watching brief.
- Eighth, a right for the home or contact supervisor to cancel the visit if circumstances deem it appropriate, either before the visit or during the visit.
- Ninth, the ability to shorten or lengthen a visit if, for example, the visit is not going well or if the relative has become sick.
- Tenth, regulation of behaviour. Conditions may include provision that the family member not be rude to or harass staff or other residents, the point of entry and exit to and from the care home, the fact that other residents need to be left alone, that their care should not be interfered with, restrictions as to what food and drink can be brought into the home and the venue in the home for contact.
- Eleventh, a record of the visit. The level of formality will depend on the situation. In more serious cases every word may need to be recorded and in other cases a note will simply be taken that the visit passed without incident and everything went well. (bullet points added)
Other
Before: DJ Marin
Hearing: 14/7/11
Judgment: 15/7/11
Ms Laura Davidson, Counsel, appeared on behalf of the Applicant
Ms Victoria Butler-Cole, Counsel, appeared on behalf of the First Respondent
RS and JS appeared in person
Citations
[2011] All ER (D) 107 (Aug)