A Local Authority v WMA & Ors [2013] EWCOP 2580

COURT OF PROTECTION

Venue BIRMINGHAM COUNTY COURT Case No: 1207001, Birmingham Civil Justice Centre

The Priory Courts

33 Bull Street

Venue Birmingham

Date 23 rd July 2013

B4 6DS

Before

HIS HONOUR JUDGE CARDINAL

Between

NCCApplicant

WMARespondents

MARespondent

MR. O’BRIEN, QC of counsel appeared for Applicant Local Authority.

MS WEERERATNEE of counsel appeared for Respondent WMA (by the Official Solicitor).

The Respondent MA appeared in person of the first day of the trial only. for in person

JUDGMENT

Transcribed from the digital recording by Marten Walsh Cherer Ltd.,

1 st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP

Telephone No: 020 7067 2900. Fax No: 020 7831 6864

[1]In the judgment that is to follow I shall refer to the Respondents as “WMA” and “MA” and to the Applicants as “the local authority”. I give permission, as I have indicated, for the report to be publicised in an anonymised form save for the names of the expert witnesses, not least because of the President’s proposals as to reporting recently announced.

[2]The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty.

[3]WMA suffers from an autistic spectrum disorder. Although it is possible to have a conversation with him about his clearly expressed views, it is plain, and agreed by even his mother MA, that he lacks capacity in some important aspects to which I shall come. He has been diagnosed in these proceedings as having atypical autism and a pervasive development disorder. He presents with unpredictable behaviour on occasion.

[4]He leads an isolated and insular life with MA, who has also sight and mobility problems of her own. The local authority is concerned about the impact of isolation on WMA’s long term development and its social work team has reluctantly come to the conclusion that he needs to be moved into supported living accommodation, despite the difficulty of the initial move, because in the long term this will help WMA and MA to develop a more healthy relationship. It is argued that there is currently an unhealthy degree of interdependence. The local authority alleges too that MA is unable to care for WMA properly, she is likely to be harming his development and it is against his best interests to remain with her.

[5]The case arose in these circumstances:

[6]As long ago as 2009 the home at which WMA and MA lived was found to be in a squalid state. MA did not wish to accept outside help for herself and her son. In addition, WMA was thought rarely, if at all, to leave the home. The local authority decided that the house was unsafe and the decision was taken to move them to a new and clean bungalow. I have seen photographs of the state of the property and a move was clearly essential.

[7]But anxieties did not end there. On 30th July 2011, for example, the local authority was alerted by the police about concern as to the apparent neglect of WMA and I shall say more of what happened to WMA below. Again, the local authority tried to engage mother and son and assist them but was met with reluctance. It is alleged that, even with the benefit of court orders, co-operation has proved extremely difficult to get. Indeed, as will be seen, the expectations recorded by me in my order of 27th February of this year were not complied with, for, whilst it has proved possible to obtain agreement at court, WMA usually becomes upset and MA reluctant when people arrive at the home to assist.

[8]The reluctance to accept even basic help is, for example, exemplified in WMA’s assertion and that of MA that Delos, the care provider arranged by the local authority - who, inter alia,assists in occupying WMA’s time constructively - should come to the house on two separate hours a week only, whereas by late May 2013 they were providing twelve hours a week assistance.

[9]Accordingly, the local authority now seek to move WMA from his home with his mother and to move him on his own to a residential unit at B, a small facility occupied by two other residents. In addition, the local authority until recently sought an order appointing it property and affairs deputy and as welfare deputy for WMA, although it no longer does so. It seeks, however, an order as to deprivation of liberty simply to ensure that WMA remains at the place to which he is moved and that that move is effected.

[10]The legal issues that I must consider inevitably relate to WMA’s capacity in part and, having determined that, I have to look at what is, if he lacks capacity in a relevant matter, in his best interests, and I shall then look separately at the deprivation of liberty questions. In considering best interests, I must, of course, decide what weight to place upon his very strongly expressed wishes. Issues of capacity are decision specific so I look at each matter separately.

[11]The case is not without difficulty, given the strong views of mother and son. The difficult problem posed in this case is this: is the court being asked to provide a better life or is it really the case that a move is dictated by best interests. Ms Weereratne put the matter well in her initial position statement and I quote:

“The Official Solicitor has previously characterised this case as being about a better quality of life for WMA. In cases such as this it is important to take great care to ensure that what is being proposed reflects a proper analysis of best interests as propounded by section 4 of the Mental Capacity Act and not what is considered with the best of intentions best for the relevant person. To separate WMA from his mother needs careful justification and a proper balancing exercise of the benefits and advantages to WMA and cannot simply be based on what others consider to be good for him.”

[12]The case, therefore, presents me with agonising choice. To what extent must the court interfere with WMA’s private life with his mother and move him to a place to which, at least for now, he emphatically does not wish to go?

[13]There is no doubt the local authority has very grave concerns about the manner in which WMA is cared for. The main points are these.

[14]There has been long term neglect and damage to local authority provided accommodation. So poor was the state of repair of the previous property at P that WMA and MA were allocated that new property in October 2012 at E. There a blocked toilet was of great concern and I note some anxiety that remains at the present property for, after a brief spell in bed and breakfast accommodation in which there were complaints about hygiene also, they moved to their present home. Nonetheless, there has been no washing machine there, no proper floor coverings and sheets draped over the windows. In the short period of occupation, it, nonetheless, became necessary for a deep clean of the new accommodation such was the state of its cleanliness. In addition, the home remains a tripping hazard and such improvements as there have been in the care of WMA have been prompted by Delos support workers. It has fallen to Delos support workers to escort MA to the laundrette, even though transport arrangements have been for her to organise.

[15]MA has hindered WMA’s adult development in that he simply is not equipped in the skills and tools for everyday living. As it became clear in the evidence, WMA learned how to make toast and tea in S, to which I shall come, but never learned at home. MA keeps WMA at home most of the time and he cannot move freely round his local community. In addition the local authority alleges MA is psychologically abusive of her son, speaking about him in a derogatory manner and being unable to understand what he might make progress in as to social skills despite his disability. MA is quite unable to cope, it says, with WA’s outbursts and simply fails to ask for support regarding his difficult behaviour.

[16]I add, for completeness sake, more detail of the history of WMA’s care: Mother was accused of neglect of WMA in 2003 when he was still a child but those allegations were dismissed and the interim care order was not renewed after a brief period in foster care. In July 2011, MA was arrested under section 44 of 2005 Act on suspicion of wilful neglect but no charges were brought. WMA was then taken to S, a respite facility where he spent about six months. The standard authorisation for WMA’s deprivation of liberty was, in fact, determined by order of King J on 17th January 2012. The Court of Protection proceedings initially brought by MA have continued, however, and to them were added the local authority’s deputyship applications that it no longer pursues.

[17]The position of MA has been a somewhat unusual one. She came with WMA to court on day one of the hearing before me. She told me she had to look after WMA for the remainder of the hearing and would not be coming again, although she did, whilst here, concede that WMA was unable to decide, for example, whether to move house. That somewhat restricted questioning of her and, of course, her contribution to the case. I took the view that, in reality, all she was doing was giving me her views, albeit with questions from Mr. O’Brien and Ms Weereratnee. She was effectively making submissions on day one. Accordingly, I did not find it necessary to have her sworn and neither advocate objected to this course. Although she was and is aware that her case was made more difficult by her not being in court, she chose not to come again and so has not cross-examined the social workers, the independent social worker and Dr. Carpenter.

[18]That of itself perhaps illustrates the difficulties that MA herself poses. She finds it very hard to cope with engaging with authority. I regard, for my part, MA as a vulnerable person and, whilst I have no direct evidence that she, too, lacks capacity, I am concerned at the way in which she keeps her home. She is obviously dependent to a degree upon WMA for care of herself and I am concerned too by her reluctance to engage with social services and any organisation seeking to assist. What medical evidence is there as to WMA’s learning difficulties?

[19]I had the benefit of hearing from Dr. Peter Carpenter who is an eminent consultant psychiatrist and who spends a great deal of his time undertaking forensic work in the Court of Protection. He has prepared two reports of 8th July 2012 and 7th May 2013 that I have read. I summarised his oral evidence to him at the close of his evidence and the following salient points emerged:

[20]He is quite satisfied that in WMA’s case the functional and diagnostic tests under sections 3 and 2 of the 2005 Act are met. He lacks capacity as to litigating and, applying the test seriatim to each relevant decision, WMA is unable to make decisions for himself as to residence, those with whom he should have contact, the care package that is appropriate for him and whether or not he should be restrained in B were I to move him. Accordingly, he is of the view that a deprivation of liberty order would be required here were I to direct his move to B as the local authority seeks.

[21]Given WMA’s high level of functioning for a person with learning disability, his wishes and feelings should be accorded greater weight than those of some but he is unable to understand the merits of a move to B compared with his remaining with MA.

[22]Dr. Carpenter was concerned as to WMA’s welfare were he to remain at home because:(1) His mother dominates his life.

(2) His mother lets him do little or nothing from day to day.

(3) He resists change owing to his autism.

(4) He desperately needs to learn social skills and to be socialised.

(5) He and his mother cancel all help that is on offer.

(6) His mother cannot control him when he is in “meltdown”, to use her word.

(7) MA keeps a dirty home which places WMA at risk, even if he has not contracted any serious infection as yet.

(8) Overall it is not a case of simply recommending a move to B because he would be looked after better. He was satisfied that such a move would be in his best interests for reasons of safety, psychological wellbeing, future self care and the acquisition of living skills, especially for the day when mother dies and WMA is left alone.

[23]In his first report, Dr. Carpenter said WMA has an autism spectrum disorder:

“Technically he has a pervasive developmental disorder or atypical autism as we do not have a good enough early history to slot him into the precise diagnostic criteria of childhood autism.”

[24]His diagnosis was, “complicated superficially as he is very verbal.” He thought most clinicians would call him Asperger’s, though he “would not meet the technical criteria of normal developmental milestones.” He identified a number of problems, including fear of facing change and a tendency both to dominate his mother and she to dominate him.

[25]At the earlier stage of his first report he was of the view that it had not been established that it was in the best interests for WMA to move away from MA unless he had no outside support or outside activity but by the time of his second report he said he was now of the view that it is in WMA’s best interests for him to move to supported living accommodation and he weighed up in that second report at paragraph 18 the disadvantages and advantages of remaining where he is, reasoning which, in due course, I shall adopt.

[26]He felt the long term psychological benefits outweighed the trauma of a move from mother’s. WMA, he told me, has an IQ of the order of 64, though his verbal IQ is better, but he will have problems in seeing the consequences of decisions. He has difficulty in understanding the emotions of others and the impact of his decision making on mother. He does not understand abstract concepts. It is difficult for him to disagree with MA and he is dominated by her, yet MA would not be able to pick up how to keep him calm. WMA’s own confident presentation evaporates when taking difficult decisions. He would say things such as he does not like to go out but there is no report of him ever regretting doing so. He does not think there would be compliance with help offered in the home were he to remain with MA. WMA would be in an isolated environment. By contrast, when in S WMA appeared to enjoy the interaction with others.

[27]So what did the doctor make of WMA constantly saying that he wanting to go home? That was possibly nostalgia or familiarity but it was not a decision based on understanding the consequences. What weight should I put on WMA’s wishes and feelings? The problem is mother tells him what do. His feelings might become clearer when he lives at B. S was but a temporary home anyway and not a great test of what was best for WMA. Was it a matter of deciding what is best for WMA by moving him or saying it is in his best interests to move? But he was very strongly of the view that it is in his best interests now to move:

“If I strongly believed it would not be in his best interests, I would not be advising it.”

[28]What about a suitable package of support for WMA remaining with his mother? WMA regarded the package of twelve hours a week of support by Delos as too much too soon and the reluctance to continue with Delos – since become a refusal – was indicative of a suitable support package being, “very problematic in that setting.” Delos had managed to effect some improvements in WMA’s life but now he will not engage. It was not appropriate to reduce the Delos input as WMA sought. MA in meantime regards WMA as her eyes and is dependent on him and there is no evidence that she would co-operate with help offered to her either.

[29]WMA struggles to contemplate changing his life and understand the long term implications of staying at home; and with WMA and MA there is a degree of “unhelpful mutuality”. They reject outside help but neither, in reality, can they tolerate the other. He has severe concerns about MA’s physical health and sees living at home with MA as harmful to WMA. People like WMA can cope with a parent’s death but that is when they have other sources of support and WMA does not.

[30]He would be concerned if I were to allow plenty of notice of the move to WMA, though he supported my idea of a letter setting out the reasons for a move to WMA from me. I have, in fact, prepared one which I shall show to the advocates after giving this judgment. He anticipates that WMA might be resistant at first but will adapt. Under peer pressure he would do things in the community. It was when he was at S he noted that when asked to do things, WMA would say, “My mum says I can’t,” but then he was able to do them.

[31]I was very impressed by the evidence of Dr. Carpenter. He has plainly considered the matter in depth over a suitable period. He has looked at the matter with care. He was taken by Ms Weereratnee in minute detail through his views and he justified them without giving me any cause for doubt or concern. Even though WMA would not be interviewed by Dr. Carpenter on his second visit about contact, he was satisfied, on balance, that WMA lacked capacity and so am I.

[32]Although I heard the expert evidence of Dr. Carpenter and that of the independent social worker at the end of the oral evidence, I think it would be helpful to continue with expert evidence now.

[33]Keith McKinstrie is an experienced independent social worker who has given evidence to me on many occasions in Court of Protection cases. He has prepared two reports of 13th May of this year and then 17th June.

[34]In his first report he concluded that the approach of the local authority in first seeking to support WMA in living with his mother had been the correct one but eventually he concluded it was in his best interests to move to B. Nonetheless, planning was not then complete and he urged the completion of a continuing care plan.

[35]In the second he drew some important conclusions which I propose to repeat here. He said this:

“In my view if WMA is to develop the ability to live more independently, have an increased range of experiences and be less socially isolated, it is essential that he be supported in a reliable, consistent and co-ordinated way throughout each part of his life. Should WMA continue to live at home the majority of his support will continue to be delivered informally by his mother? The more formal and commissioned elements of his support which are individual support from Delos, attendance at a day service and periods of respite care will not on their own be able to sufficiently meet his needs unless they are agreed both by WMA and MA and they are complemented by the informal support of MA. It continues to be my view, for the reasons I have described in my initial report, that MA is unlikely to be able to provide either the necessary consistency in the support which she provides for WMA or to adequately to compromise her view of what she considers to be in WMA’s best interests to allow this to happen. The likely consequence of this is that the formal support will be less effective in meeting WMA’s needs than would otherwise be the case as it would be at best inconsistent with and at worst undermined by the care and support offered by MA and her needs will take precedence over those of WMA. It is my opinion this combination of formal and informal support is unlikely to be able to work together in a co-ordinated way to meet WMA’s needs or act in WMA’s best interests whilst he remains in the family home. It is, therefore, my view that, even after taking into account the additional formal support that will be commissioned by the local authority, it would not be in WMA’s best interests to continue to live at home with MA.”

[36]I note that he carefully compared and contrasted the advantages and disadvantages of WMA remaining where he is in his report and his advice to me was and is unequivocal. He understood why the Official Solicitor wished to test the evidence to ensure that a move for WMA is not simply “the best thing.”

[37]He had heard the difficulties in providing adequate support to WMA at home. The support delivered to date, bearing in mind the problems caused by mother and son, had not been sufficient or consistent enough for the local authority was is not able to deliver it in the circumstances. He was not convinced that it could be delivered in the future. He did not think that Delos would be allowed to deliver support regularly. He did not think that the increase in the input of Delos to twelve hours a week had been at too fast a pace. He thought it was right. It was now unlikely that mother and son would re-engage with Delos. They would be, “unwilling to contemplate it and not allow it to happen.” But even if extra support were tolerated, he would now be concerned whether the support was good enough to provide a safe environment for WMA and it would not be sufficiently substantial.

[38]He was asked about the current risks to WMA and he set those out in his first report which I shall not read out now but which assist greatly in evaluating this matter. He added that his concern was WMA’s health is not currently monitored properly; there is no health action plan. Even though there are minor improvements, the property occupied poses a physical risk. MA’s inability to manage money can result in there not being enough food in the home. There is a risk of infection in the way food is kept and from unclean clothes. WMA remains socially isolated and desperately needs an independent life. Speaking of risks, he said those risks remain. Some are reduced but others remain high. WMA must be removed as he needs a change of environment to assist his own mental wellbeing. Were nothing done, there would be no plans made for MA’s deteriorating health and the risks would be higher as tension mounts between mother and son. That was inevitable.

[39]B is the right sized property for WMA, in his view, and he approves the new care plan of JM. There would be a sensible mix of encouragement, direction and choice for WMA. Socialisation and independence would not be developed overnight but they would not be done at all living with mother. MA needed to be informed as much as possible but contact for her should be initiated by Delos who look after B. It should not confuse WMA and she should be visiting him at the new home. Contact should be planned very carefully for the first three months and then reviewed. If MA will not engage with Delos then that was her decision. She should be encouraged to participate in WMA’s plan but if she would not she should be kept informed.

[40]As to the mechanics of contact, he approved the plan set out by JM. It involves telephone contact for the first two weeks and unsupervised contact twice weekly for a maximum of two hours. Contact would involve a member of staff being able to supervise it, though not actually be in the room. After a month contact would be simply monitored rather than supervised but, “contact needs not to be de-stabilising or undermining.” He agreed it is a difficult balance to strike. WMA needs a relationship with his mother but at times contact might not be in his best interests.

[41]He had criticised some aspects of the transition plan dealing with WMA’s move in his second report but he had seen the subsequent alterations and additions of the local authority and was now satisfied with them. A protocol should be agreed with the police in the event of difficulties in removing WMA from the home and police action being taken to enforce that move, though that should be a last resort; but the protocol should not be too prescriptive. It was important to understand what triggers behavioural problems in WMA and to avoid his distress. It was not clear how mother and son would react but if the home were barricaded then that would be an unacceptable risk for WMA. It would be impossible, he thought, to contemplate all possible eventualities but he broadly supported the local authority’s approach. He had seen the risk assessment the local authority has prepared at A15 to 18 of the supplemental bundle dealing with the move and with any attempt by WMA to leave and he did not criticise it.

[42]I found the evidence of Mr. McKinstrie persuasive. I endorse his assessment of the benefits and disadvantages of the alternatives of B compared with staying with MA.

[43]I now turn then to oral evidence I heard in court from the family and from the social workers.

[44]What are WMA’s wishes and feelings, however? Before the hearing formally began I interviewed him with the agreement of counsel in my room and in the presence of Mr. Connor Maguire who was then the solicitor instructed by the Official Solicitor.

[45]WMA unequivocally told me he wanted to be “permanently” with his mother. The work done by Delos, he said, was too much and he thought three hours of support four days a week was just not acceptable. He wanted one hour two days a week. Delos did not leave the home when he asked them to go. They would not listen to him. He wanted proper appointments and did not want extra people turning up on visits. As to spending his time, he liked to watch DVDs and watch the TV. He likes to take his dog, Joe, for a walk in the park. He does not like mixing with people. “That’s my choice,” he said. But, of course, he really has not experienced a life that is other than isolated hitherto.

[46]His mother’s health was fine, he said, but that answer was unrealistic too because then he conceded his mother has poor eyesight and cannot walk as fast as him. He told me he had helped her out at home, wiping surfaces, doing the dishes and feeding his dog.

[47]As for the experts, he did not like Dr. Carpenter “in every way,” he said. He did not want to go back to S; he always wanted to be at home. He did not agree with Mr. McKinstrie either. “I want to stay with mum,” he said. I have no doubt as to the strength of WMA’s wishes and feelings but what became clear to me was how much he dislikes change and fears the unusual, that which he has not experienced. What came over too was the degree of interdependence with his mother. He feels secure with her. It is clear that he has simply not weighed up the advantages and disadvantages of moving or, indeed, what will happen when his mother becomes unwell and he did not contemplate properly the risks to himself, nor understand his lack of life skills.

[48]MA gave evidence on the first day and I have read her statement and listened carefully to what she said. As to capacity she began by saying that WMA found some things difficult but then agreed that he could not manage money and there were a number of things he could not understand. He could not decide where he wanted to live but he liked to choose food for his lunch and, whilst he could not cook, he helped her by regulating the gas knobs on the stove. He could not, however, determine when food was ready and cooked. She had tried to teach him things but he would go into “meltdown”. WMA struggles with understanding instructions and would shout and swear and punch doors in frustration. She agreed this probably meant he cannot make decisions for himself and she accepted the diagnosis of autistic spectrum disorder. “He does not like change,” she said later. He could not decide whether to move home, for example. But, “He can be more intelligent than I am,” she insisted, yet people expect too much of him. Delos tried to plan two to three days ahead and he liked to plan just one day at a time. He did not like new routines, though seemed to me to be a defeatist approach.

[49]She agreed that WMA showed unpredictable behaviour. He could be difficult for two or three days at a time and then would be all right until he started up again. He would say, “All I want is to be left in peace and get on with my life.” As to routine, he did not like advance notice of change. She said she had introduced a picture communication system to explain things to him, though I am satisfied that was done at the behest of the local authority. WMA had learned how to wash up and wipe surfaces and mop the floor but I suspect all this came from his time at S.

[50]As to Delos, she agreed that since 22nd May they had not seen Delos, though it became later clear, in fact, it was 28th May and from that date they have accepted no help from Delos at all. WMA said Delos came too much, he wanted to do things himself, and he complained they would not listen to him. Twelve hours of visiting over four days was too much for WMA. He liked to decide what to do on a certain day. That answer concerned me and it seemed to me that mother would seem to support what WMA had decided, no matter how reluctant he was to undertake activities, and that would not be for his benefit. WMA wanted to return, she said, to the level of support Delos offered in the first place. He had seen too many people: Dr. Carpenter; Mr. McKinstrie; social workers; people from CTLD. It was too much for him to cope with. But I detected that, in saying WMA took these views, he was mirroring simply what she had to say.

[51]What about the status of the home? She was referred to the various care reports made by CG who is a social worker from whom I was to hear later. She complained about the criticisms as to the state of the home regarding its cleanliness, though it seems to me it is very clear that mother has failed to keep the home in an appropriate state of cleanliness from CG’s reporting. She had to concede that, even though she had lived for less than a year in her current property, the local authority had had to provide a deep clean of it for them. Indeed, she said CG was too critical of her. They live in poverty and that was the problem, she said. That may be true; but it seemed to me from the photographs I saw of the first home and what I have heard of home since that mother is content at times, simply because she is unable to deal with cleanliness properly, to live in a filthy state.

[52]Her excuse for neglecting matters was that WMA required a lot of her attention. “I don’t know what they want from me,” she said; but it seems to me that she does not have an ability to keep the property up to an appropriate level of hygiene. “WMA is very difficult to care for,” she said, “and I’ve managed it for twenty five years,” and that is true enough and I am sure she has done her best and done what she thought was right but that it has not been good enough.

[53]She had to concede that their first property had been in a gross state of disrepair in 2009. Their next property at E had lacked carpets and curtain tracks. She confirmed that at E the toilet had been blocked up because of the way WMA used it and even the present property has difficulties with the toilet, there still not being a toilet seat. She accepted her home is not spotless.

[54]What about her health? She told me that her problems with her feet are improving. They are no longer bleeding, she said. The district nurse had treated her. I have to say recent evidence filed by the local authority by KB contradicts that. She denied that there was blood on the carpet, although there are clear records of this, in my judgment. It is not true, she said, that the house is in that state. That cannot be. There is clear evidence to the contrary. She agreed she had needed a cataract operation and that had been cancelled but it had not been re-arranged by the GP. She was adamant, though, she could see enough to look after WMA, even though, of course, as I have said, she cannot see the switches on the gas stove. I remain concerned about this and concerned in particular that it appears she has done nothing to chase the urgent cataract operation that she needs.

[55]What about her budgeting? She said Delos were supposed to help her with her budgeting but the help had not materialised. A proposed washing machine she had asked for had not come. There had been delay. But it seemed to me that that was inaccurate because the local authority evidence was to show me quite unequivocally that she has been rejecting assistance with her budgeting from Delos.

[56]As to B, she did not agree that WMA should move there. He had hated being away before and wanted to come back with her. He wanted to stay at home. They just needed financial help and that was all. She felt she had not been properly consulted by the local authority. She had not been included in the meetings and especially in safeguarding meetings. She did not know about meetings in January, February or March 2010, for example. There may be some evidence that she was not always invited to meetings that she might have been but, in the main, she was clearly an extremely difficult person to work with and I am not satisfied that she took every opportunity to co-operate with the local authority that she could have done.

[57]What about WMA’s best interests? She feared that if WMA were moved she would not be allowed to see him, contact might be restricted, but she overstated her concern, in my view, for it is clear that the local authority intend short term restrictions whilst WMA settles in B. I asked her how she would feel if I directed that the matter be listed for review and she thought that would be a good idea were I to move him but she was adamant that she cared for WMA properly at home, she could meet his emotional needs. She would be better caring for him than social services.

[58]So what would happen, asked Mr. O’Brien, when she died? She became confused and spoke of seeing a lawyer and making a will but that was not the point. It is not property or making a will that matters in this case, it is WMA being able to cope, having life skills, socialising, managing a budget, providing for himself, skills he cannot and will not learn in any way, shape or form whilst living with his mother and without substantial local authority support. Would it not be better for WMA to move to an environment where he could learn these skills? But she would not accept that. She conceded that upon her demise WMA would have to live in the social services accommodation. Was it not better for him to learn new skills now? She did not agree and that seemed to me to be entirely unrealistic.

[59]What about her co-operation with the local authority? Was it not true she had failed to get on with the local authority social workers? Well, she said, she had never had a relationship with social services. She thought it was difficult to work with social workers. They were always criticising her, she said. Her answers gave me a great deal to be concerned about. She was referred to the schedule of tasks to be done to my order of 27th February of this year and there are outstanding a number of matters that she should have done, for example: laundry and washing to be done once a week commencing with clearing a backlog of washing so that the house may be cleaned as provided for; the local authority to provide for the house to be cleaned by an outside agency; the cleanliness thereafter was to be her responsibility; WMA to have one night away from his mother before 25th June 2013; and the local authority to arrange for the appointment of an IMCA who would endeavour to arrange a meeting with WMA as soon as possible. True enough, the local authority had been able to arrange the cleaning of the property but it was not until late May, she had to concede, that the washing was brought up to date. WMA had not gone for respite, despite the agreement in February, and she said that was because WMA did not want it; yet, of course, it was up to her to encourage it and that caused me concern as well. The IMCA, she claimed, had simply not worked with them.

[60]She was shown photographs of the first home, the photographs that were produced to me by the local authority social workers. The photographs of P, the first home, showed the property in very poor condition with holes in the ceiling in two places. It was quite clear that the area in the kitchen, particularly by the cooker, was filthy. There had been concerns expressed by an environmental health officer. She confirmed that there were grounds to be concerned when they moved property. She said that she had not had help from the housing people that she should have had. Was it not true that she could not manage a home for herself and WMA? She disagreed. She did not need local authority involvement, she said.

[61]As to money management, she was asked about the incidents of July 2011. She had taken WMA on holiday to Devon, initially for three to four weeks whilst the home was being repaired, but they had to return after a week because she had run out of money. She confirmed that she had been unable to manage money well and complained again that Delos had not provided support; but it is quite clear to me that they endeavoured to do so. She did not take up the help offered with regard to budgeting skills.

[62]What about management generally? She denied that there was ever insufficient food in the fridge but she accepted that in 2011 she had been arrested for neglect of WMA by the police. She denied ever locking WMA in the home when she was out but the evidence seems to point that way because she added then that when she was out she would keep’ phoning him to see if he was all right which perhaps implies that she knew he was stuck in the house. Had she not threatened to kill herself and WMA were WMA taken away? She denied that too, though that is a matter that concerned me, particularly as similar threats have been made more recently according to evidence filed after the trial and I shall deal with that when I come to discuss the matter with the advocates afterwards.

[63]What about trips out? She would not accept that WMA did not go out very much. He had been, she said, to Yarmouth and Blackpool, although she was quite unable to say when that was. She criticised all the aspects in which social services had been involved.

[64]There are a number of matters that arise out of MA’s evidence that caused me the greatest of concern. First, the fault is always somebody else’s. She criticises her GP, the social workers, the help or lack of help she has had with money, failure to repair the property, the housing department and Delos. Everyone, according to her, is in the wrong and she in the right, whereas the truth is, it appears to me from the evidence I subsequently heard, that she turns help away and does not engage with professionals. Second, it is plain to me that she has kept and still keeps at times a very dirty home. Thirdly, although I do not think she lacks intellectual capacity, nonetheless, she struggles very much with concepts herself and simply does not understand WMA’s needs.

[65]So I turn now to the local authority evidence.

[66]KB is the lead social worker dealing with safeguarding in this case. She looks at all notifications of safeguarding concerns and investigates them as appropriate. She told me her colleague, JM, is the care manager and they both jointly supervise CG who does the more day to day care visiting. Julia’s predecessor was an AM, to whom I shall refer briefly later.

[67]KB’s task was investigate allegations of abuse but she had drawn some serious conclusions about this case for what she said was this in her first statement:

“It is my professional view that WMA is a twenty three year old man with the potential to lead a more fulfilling life. I am also of the view that MA is not deliberately abusive to him but rather has needs of her own that have not been assessed but which impact upon her ability to care for WMA effectively and to manage her own living environment. I think she is not aware that her behaviour towards him is abusive. She has little expectations of him and there is evidence of the frustration she experiences from undertaking his care, shouting at him, preventing him from leaving the property. MA has stated on many occasions she does not want local authority involvement with the family, blaming them for the lack of diagnosis of WMA as a child. She has been found to be neglectful through safeguarding adults procedures. I am concerned that WMA has been treated in an inhumane and degrading manner by MA and that his true potential has been unrecognised and stifled. In order for him to live safely and towards a more fulfilling life I think he should move on to supported accommodation whilst continuing to have contact with his mother.”

[68]She was taken in great detail to a number of safeguarding meeting minutes by Ms Weereratne. In January 2010 the home was said to be suffering from long term neglect and damage and in a squalid state. The local authority had had difficulty in gaining access. WMA did not leave the house and MA accused him of “trashing the place.” It was recorded that WMA had not received over the years the local authority services to which he was entitled, at least for the period 2004 to 2009. The minutes recorded that MA had wanted a psychologist for WMA but when help was offered she refused it from the team that contacted her.

[69]Notification was subsequently received as to the state of the home. A housing officer had referred on the neglect of the home and it being in a squalid state. It was in disrepair. The property at 20 P was in an appalling state and I was shown the photographs that caused me very grave concern to which I have already referred. MA perceives that then and now she has had a poor service from the local authority but KB disagreed. She was concerned about MA’s eye and foot problems and she thought MA also suffered from ADHD and possibly autism herself but MA refused an assessment of herself and WMA.

[70]Other safeguarding meetings in February (two meetings) and one in March 2010 were referred to. The minutes of March 2010 are revealing. It seems there was a best interests meeting that afternoon on 5th March. They referred to MA being sent a letter as to coming to the meeting apparently after the safeguarding meeting in the morning which would be an impossible period of notice for her. So I do suspect that on occasion MA was not fully consulted.

[71]But I note the significance of the meeting of 5th March. The minutes refer to the IMCA complaining that MA ran WMA down and thought the problems between them, “insurmountable.” They recorded that WMA was not getting the services he is entitled to. The IMCA was concerned that WMA was not getting the opportunities that he ought to be aware of in this life. There were concerns about WMA’s diet and his safety at home and that he was neglected. This was a situation of chronic neglect, she thought, but they still wanted to support WMA and MA at home if possible. There was concern that WMA was just sitting on the sofa at home and not communicating and she was not satisfied at all that his needs were being met.

[72]In July 2010, MA and WMA had removed to the E property and they moved again two and a quarter years after that.

[73]There had been another safeguarding meeting in May 2011. Again, there was concern about the lack of choice and control WMA had over his own life.

[74]The council housing officer had referred the matter in April 2011, saying WMA had not been seen for several weeks, the curtains had been closed, WMA had been locked in the property when mother had gone out and screams and thumps were heard by neighbours at night. MA was simply not engaging with social services. For a while she had engaged briefly with the G housing support that was offered but in February 2011 MA had written to G saying that she did not want their support any more, no-one should ’phone her, or visit her, or even write to her.

[75]It had been recorded that MA was still shouting abuse at WMA in the small hours of the morning and he remained socially isolated. MA was guilty of abusive calls to AM on occasions and so guardianship was considered by the local authority. Even then it was not thought that WMA would be removed from the home. They were still trying to support WMA living with MA.

[76]But by July 2011, on or about the 20th, the police had to arrest MA under section 44 of the Mental Capacity Act 2005 for alleged neglect. Police records also refer to MA returning from a holiday in Devon unexpectedly. No-one had known where she had been. She had gone for some four weeks but ran out of money. The police regarded E as not habitable and there was no working toilet in the home. They had concluded that MA was neglecting WMA and that was the reason for the arrest.

[77]WMA was then moved to local authority respite accommodation at S. MA in August 2011 had moved to E House because of her own vulnerability and the continuing police enquiry.

[78]There had been an urgent safeguarding meeting in early August 2011 but WMA had been observed, notwithstanding all the problems, to be clean and tidy and in robust health and from the time he went into S he expressed the view he wanted to go back to his mother. Yet whilst in S he had been given lots of opportunities, to go out, for example, but he had refused those. But, for all that, he had undertaken some activities at S and it was thought by the then acting manager at S that WMA had “a great deal of potential which it is believed has not been harnessed or tapped into.” The meeting then had discussed the removal of WMA from the home and from his mother.

[79]She had undertaken a mental capacity assessment of WMA in August 2011. WMA could not understand his care needs or what was necessary for his welfare and did not see his mother as a perpetrator of neglect.

[80]When WMA had been admitted to S it was observed that his eating habits were erratic but they were regularised in local authority care.

[81]Eventually it had emerged that the police could not prosecute MA because it was difficult so to do because the living conditions she provided were provided for her as well as WMA. They were as much a neglect of herself as WMA, although WMA was deprived of many things in this life. Whilst she accepted that WMA had not suffered any infection whilst in the care of his mother, nonetheless the risks remained.

[82]By the time of the adult protection planning meeting in December 2011 WMA remained unhappy and wanted to go home. He had continued to decline outings but he had benefited from some work done with him; for example, he had learnt for the first time to make tea and toast. It was, she thought, important that WMA should be able to make choices in this life. She conceded, however, that S had only been a temporary respite home and that now B would be much better for him. She hoped he would make progress there, she hoped he would learn new routines. She thought he would be happy in due course even if not in the short term. S had not been the right place for him in the long term.

[83]Had mother co-operated with CG’s inspections of the home since WMA was returned by King J? Well, she had - but not a hundred per cent; and she thought that CG was still having difficulties in going in. We now know, of course, she has not gone in at all recently.

[84]Was it not WMA who had failed to co-operate with Delos, i.e. his decision? She accepted that WMA did not want Delos to do all they had done but MA had not facilitated visits. The problem was the way in which MA viewed the visits. She accepted there had been some progress in the home but it was WMA now who did the important cleaning. She was very concerned about that. But it was in B that WMA would experience life and develop more skills and she felt that was essential. She feared that if WMA simply went back to his mother conditions would deteriorate to the extent they had been at the very first home in those dreadful photographs that I have seen.

[85]As to transition plans for WMA’s move, she had discussed these JM and with DS D of the police. An appropriate restraint order was necessary. Forced entry would be necessary for the home had been barricaded in the past. She wanted a court order to cover all possibilities. She had discussed the possibility of the police attending and not attending and she agreed a protocol was necessary. She wanted, however, to avoid distressing WMA. I propose when I come to make my final order to direct an appropriate protocol. They simply want authority now too for a tenancy agreement to be signed on WMA’s behalf and I shall direct one to be done.

[86]“WMA needs opportunities in this life,” she said. He simply had not had them and he would not have them if he continued to lead the isolated life he does with his mother and I agree with her. I find KB’s evidence persuasive. She was asked a great deal about her records but it seems to me that she answered well and gives a very accurate and persuasive view of what is best for WMA now in terms of his best interests.

[87]JM is the principal care manager for the Transition and South Younger Adult Team. She prepared the new care plan for the move for WMA to B that deals with all the matters that Mr. McKinstrie said were missing. She was very anxious to be fair and she prepared a proper plan in the event of WMA staying with his mother with two alternatives, depending on the amount of local authority involvement, but I do not propose to set out the plans for WMA at home because it seems to me that WMA remaining at home and being cared for properly is quite unachievable in the light of his attitude towards outside help and the attitude of his mother too.

[88]By contrast, if WMA were moved to B the accommodation will be appropriately supported by Delos and she told me the two other residents in the property will be a good fit with WMA. She felt the care plan set out at C309 of the bundle gives WMA appropriate life choices and would involve him in the community. At A129 of the bundle she had set out in a very careful way a balance sheet setting out the advantages and disadvantages of WMA remaining where he is. She felt WMA needed to be moved, to be “encouraged to push the boundaries” in B. He would be “empowered,” she thought. Of course, in the short term he may say he did not wish to go there but that, she thought, could change.

[89]She thought that, whilst there had been some change in WMA’s life with local authority support, it had not been a great deal MA holds him back. For example, an invitation had been sent to WMA via Delos for him to go to a barbecue at B just to see what it was like but MA had intervened, taken the invitation, ripped it up and said, “He’s not going.” Or was it not the case, Ms Weereratne asked, that WMA experienced change that was too fast and too soon? But she did not agree and, of course, in that she has the support of Dr. Carpenter and Mr. McKinstrie. She thought the number of hours that Delos were working in May 2013 was reasonable. WMA’s problem was he would always say he wished “to remain as I am.” It was difficult to know the extent to which he was influenced by MA in that respect. When he was in S he did not say that he did not want to do things, although he would say his mother said he could not do things.

[90]Whilst she accepted WMA was very close to his mother, she said she has undue influence. Sometimes she had experienced MA making progress with her only to be rebuffed shortly thereafter. She did not agree that the local authority had failed to engage MA and simply had forfeited her trust. It was not possible, of course, for MA to come to best interests meetings whilst the criminal allegations persisted.

[91]Again, I found JM’s evidence to be extremely helpful and I am persuaded by it. She clearly has WMA’s best interests at heart and has endeavoured to her best for him.

[92]CG deals with the day to day care management of WMA. She has prepared detailed records that I have read through and prepares a monthly report of what has happened to WMA from her records and those of Delos and there is a weekly record of visits to the home of MA and WMA, the latter disclosing the state of the house, how WMA was at the time, anything discussed and any necessary action. She prepared those very detailed records from February of this year, though her involvement with WMA started the previous November.

[93]On her most recent visit to WMA prior to the trial, WMA had refused to let her have access to his bedroom any longer. She thought there was an inadequate supply of food again in the house and she was not allowed to check the use by dates of items in the fridge. Mother would not let her. MA had been refusing assistance with shopping, saying that Delos disrupted her routine, which also concerned me. The fridge at the home was not in good condition. It was dirty and leaking liquid and the floor was sticky. Cleaning the fridge and cleaning the floor was, of course, MA’s responsibility. In the meantime, the washing up had been done and the surfaces were clean but those were what WMA has been doing. The living room required hoovering. One sofa was stained. The toilet upstairs was not clean and the toilet seat was still not fitted. MA was wearing one of WMA’s new tee-shirts when she gave evidence at court.

[94]She agreed that the input from Delos had had to be increased to twelve hours a week. She agreed that they had been allowed in to the home, save for a few “blips,” but they were no longer allowed in so regularly. She had detected more recently a change in the atmosphere towards her, something she has repeated in the more recent evidence appended by KB. WMA would no longer engage with her and she felt glad she had someone with her when she visited the property; and, of course, we now know that Delos workers were not being let in since 28th May. Her statement records that MA would run down WMA and it appears from the Delos records that there are a number of matters for concern. I need not go into details now.

[95]Were the trips out for WMA not too much? She thought not. She had tried to suggest that Delos went in for three days but still did twelve hours visits a week but never got an answer from WMA to her suggestion. She did not agree that reducing the input from Delos will be the answer and, of course, it would not because WMA and MA need that degree of help. She had never felt that MA would be able to see her visits and those of Delos as a fresh start for MA was always harking back to past events and matters of concern.

[96]She had felt the atmosphere become very tense. When she had last visited she had been shown the amended house rules on the wall and had read them. The notice said this:

“If you do not leave when asked to leave you’ll be forcibly removed,” and then, “This is our house. What mum says goes. If you don’t listen to mum, you’ll be asked to leave.”

What CG said to me caused me grave concern and it is clearly high time for this local authority to remove WMA.

[97]So it is I have come to the unequivocal conclusion that the evidence points but one way and that is the pressing need for WMA to move very soon but I carefully remind myself that I must not decide this case on the basis of what is best for WMA but in his best interests, applying the 2005 Act, especially as I am asked to remove someone from what has been their home for the vast proportion of his life, an extreme solution. I, therefore, apply the law and, I hope, eschew all temptation to be paternalistic. It is for that reason, of course, that Ms Weereratne carefully explored the views of all the witnesses in great detail.

[98]I make the following findings.

[99]First, the local authority social workers have been unable and will be unable to provide appropriate care for WMA and monitor it because of his refusal to accept it and because of MA’s inconsistence and erratic interference with the local authority help.

[100]Second, there is a worrying history about MA’s care for WMA that shows no sign of abating.

[101]Third, that the local authority has made special efforts over the last eighteen months to engage fully with both of them but there has been an unacceptable degree of conflict. I am not persuaded the local authority could have done any more and I have noted with concern the helpful evidence of CG that she has felt under threat recently.

[102]Fourthly, WMA lives an isolated lifestyle and is expected often to be in mother’s eyes and ears. His relationship with her, however, is a frustrated one and there is clear evidence on mother’s case alone that he is, at times, beyond control.

[103]Fifthly, the isolation is such that WMA just does not go out with any with any regularity. Dog walking and shopping appear to be virtually the limit of his outdoor activities with the exception of the few outings that were organised by Delos who he now rejects. As long ago as February 2012 he could not recall when he last went out anywhere.

[104]Sixthly, the home of MA and WMA continues to be kept to a very low standard of cleanliness and, whilst it is not for the court to impose respectable middle class standards of care, nonetheless, the home’s condition has on occasion deteriorated. The recent evidence of CG, for example, that the fridge is kept to a low standard of cleanliness is very concerning. True enough, this has not yet made WMA ill but I am sure that it will one day,

[105]Seventhly, there is a plain history of neglect of WMA by his mother. She does not keep him sufficiently safe or clean or his clothes sufficiently clean to an acceptable standard. The clear point is that MA’s standards are not simply lower than the norm, they are below a good enough standard. The application of the law.

[106]I remind myself that a person must be assumed to have capacity unless it is established to the contrary and that WMA cannot be treated as unable to take a decision unless all practicable steps have been taken to help him without success. That a person takes an unwise decision is not in itself evidence of being unable to take a decision and section 1 subsection (2) subsection (5) reminds me decisions must be taken in WMA’s best interests if I find he lacks capacity. I must look for the least restrictive solution so as to achieve the court’s purpose.

[107]I have looked with care at the diagnostic and functional test, so called, set out in sections 2 and 3 of the Act.

[108]WMA’s significantly learning disability as a result of his autism meet the criteria of section 2 for he has an impairment of functioning of the mind or brain. Dr. Carpenter has made this quite clear. Even MA has doubts as to his capacity and considers him less capable than others of achieving in this life.

[109]In addition, WMA clearly meets the functional tests in section 3. He cannot use all relevant information relevant to a decision as part of the process of making a decision. This test is decision specific but I am satisfied that WMA cannot make decisions as to his residence, his care plan and his contact with his mother. Of course, WMA has sufficient capacity to decide what he wants to eat but he cannot cope with concepts or make sensible plans as to where to live. In addition, he cannot cope with or even contemplate change, save with assistance.

[110]This, too, is confirmed by Dr. Carpenter who made it clear to me that this is not a borderline case as to capacity. He counselled against believing that WMA has near capacity simply because of his verbal abilities. That view of the functional test was echoed in the evidence of Mr. McKinstrie, the independent social worker, and the views of the social workers who gave evidence.

[111]Accordingly, I have concluded WMA cannot use or weigh the factors as to where he should live. His view that he should remain living with his mother is a decision he is incapable of making. He cannot weigh up all the considerations. Alongside that fundamental issue he cannot decide what care package is suitable for him or, indeed, what contact if away from MA he should have with her. Best interests.

[112]I have already set out section 4 and 5 of the 2005 Act. I must make a decision in his best interests. Section 4 of the Act sets out how the court should approach a best interests decision. The law requires me not to take a decision that WMA would have had he not lacked capacity but rather follow the statutory framework. What WMA would have done is but one factor to weigh up. My approach must be objective and WMA’s own wishes are not in themselves determinative.

[113]The approach in section 4 does not lay down a hierarchy of factors to be borne in mind and the weight I must give them varies in accordance with the specifics of the case. Thorpe LJ has said in several cases that there may be particular factors of magnetic importance in a particular set of circumstances, though I do not consider that WMA’s strongly expressed views should, in themselves, sway me, given the clear evidence of Dr. Carpenter. I do not decide the case on WMA’s presentation, appearance or condition. It has to be said that when I met him he was dressed smartly but casually and was plainly clean, articulate and apparently quite rational.

[114]Accordingly, following the statute, I consider all the relevant circumstances.

[115]I bear in mind section 4(3) requires me to consider if WMA may at some time have a capacity to make decisions as to residence, et cetera, but I take the view the evidence points unequivocally to the fact that, whereas he may improve as to his socialisation and skills, he is most unlikely to regain or gain an ability to take a decision as to accommodation. I have, of course, enabled WMA to contribute to the decision I am taking. I have seen him, as I have already revealed. Article 8 in principle.

[116]I must bear in mind at all times Article 8 of the Human Rights Convention. The right to respect for WMA’s private and family life should be borne in mind. Any interference with this must be necessary and proportionate in a democratic society.

[117]The 2005 Act is in itself compliant with that Article but any intrusion directed by me into WMA’s autonomy must be consistent with his best interests. I shall, in accordance with established practice, ascertain the best interests of WMA and if they justify a necessary and proportionate violation of those rights. Wishes and feelings generally.

[118]I have been at pains to consider WMA’s wishes and feelings throughout. I have set out what they both are now and in the past. He has always wished to be with his mother.

[119]I need to consider too his beliefs and values and other factors he would be likely to consider if he was able to do so. It is difficult to determine his personal wishes because I have concluded that whatever they may be they are dominated by MA to such a degree that he is probably mouthing her words. For all that, I have to be very careful as to the weight to be attached to his wishes and feelings.

[120]All depends on his circumstances and I remind myself of these points:

[121]The degree of incapacity; Dr. Carpenter has made it clear that WMA appears to be nearer to borderline than, in fact, he is, because of his inability to weigh up abstract issues.

[122]I bear in mind WMA has been consistent but he is subject to his mother’s influence and when he was not living with MA he did engage with peers and apparently achieved more.

[123]I bear in mind the possible effect on WMA of knowing his wishes and feelings will not be adhered to. The evidence of Dr. Carpenter and Mr. McKinstrie was that over time he would be able to adjust.

[124]I bear in mind the extent to which WMA’s wishes and feelings are not rational, sensible, responsible and practically capable of sensible implementation. All the evidence points very clearly to any help offered being steadily decreased and then dismissed, social workers feeling they are under threat and WMA soldiering on with MA in an unclean, unsafe and ultimately threatening environment. MA cannot properly care for him, nor he for her.

[125]I bear in mind the extent to which his wishes and feelings can be accommodated. I am afraid they cannot be. I believe WMA will suffer long term emotional and psychological damage if he remains with MA and she cannot keep him safe. If was just a case of a grubby household that, whilst not respectable, was adequate it would be different but standards are low and socialisation non-existent. Vital help to this family is rejected by WMA and his mother.

[126]So I cannot elevate WMA’s wishes and feelings to the level of importance that he would wish. The evaluation of best interests.

[127]Mr. O’Brien properly reminded me of the local authority’s best interests balance sheet at A129 of the supplemental bundle dealing with the attendant risks of the plan for WMA to be a supported tenant. In addition, I have seen the evidence of Dr. Carpenter in that regard and of Mr. McKinstrie. I find the balance sheet of the local authority persuasive and I adopt that in my reasoning for coming to the conclusions that I have.

[128]But Mr. O’Brien has properly drawn my attention to a number of other points that I bear in mind very carefully as key matters in weighing up best interests.

[129]WMA’s views. I have drawn conclusions about that. They were brought to me forcefully and they do not dictate the outcome. They are not in accordance with his best interests.

[130]MA’s views. Section 4(7) of the Act obliges me to take into account her views but they, too, cannot in any way be determinative. The sad truth is she has huge limitations as a carer for WMA. She has poor eyesight, she cannot budget, she cannot keep food hygienically, she cannot keep the home clean and tidy, rather the reverse. She is opposed to regular engagement with local authority professionals. She will not work with the local authority on her own admission and she has spurned help from Delos herself. Whatever she may say about being a good mother to WMA, and I am sure she intends to be one, she is, in practice, a poor one; for she has done little to forward his learning social and self care skills. Indeed, her low expectations of WMA hold him back. WMA himself said, when at S, his mother had told him he could not do certain tasks which he then proceeded to learn to do. Mother needs the very help from the local authority that she persistently rejects. She is, I am afraid, deliberately cussed and difficult and I believe her own psychological limitations disqualify her from caring for WMA and looking after his needs.

[131]MA’s health I have referred to. She has not taken steps for her essential cataract operation. She did little about the poor condition of her foot which I now understand has deteriorated. Indeed, from the evidence filed, in fairness, not tested, she still has that difficulty. She simply does not get the help she needs, though it is worth saying that even if her foot improves she would not seek the proper medical help for any other matters.

[132]WMA and MA have a difficult relationship. Whilst they have concern for each other, they also limit each other so it would be much better for MA if WMA were to live elsewhere as well as for him. Then she could see the benefit of him having enhanced social skills.

[133]Home conditions are at times appalling. The photographs of P, frankly, are revolting and remind me of conditions of homes from which young children are taken into care. When mother and son moved into E all was not well. There was a neighbour problem that drove them to move to their current property. Even in the B&B they were in briefly there were hygiene concerns and yet within months of occupying B Court [the current home] it required a deep clean. Whilst the property is cleaner than it was, CG observes dirty parts and there are still problems with the toilet which should always be kept spotless. WMA keeps surfaces clean but MA just simply does not notice other problems. It is only good fortune, in my view, that has led to no obvious infections being contracted so far.

[134]The future of MA is a factor that speaks to best interests. WMA is totally dependent on her care and there are no plans in place should she not be able to care for him. She was unfocused in answering what would happen to WMA if she were to die. One naturally fears that for WMA her demise or any serious illness would be disastrous. By contrast, if WMA is to move now then he would learn new skills which I hope would enable him to cope when the inevitable happens. As Mr. O’Brien suggests, the trauma of such events can be greatly reduced.

[135]The pressure on MA in continuing to look after WMA is, in reality, very great. She cannot turn on and off gas switches, WMA has to do it. She cannot take in what cleaning is necessary, she cannot cope with WMA losing his temper. She does not always supply him with clean clothing. Things will only deteriorate as she gets older and perhaps more ill.

[136]The difference in support for WMA at home compared with that at is considerable. Hitherto support had been accepted but then rejected in an increasingly erratic manner as I have noted and I have accepted the evidence of CG in particular. There has been no engagement with Delos since the end of May. Money for WMA has been refused by mother. Promises of co-operation are broken and a quite unrealistic stance adopted as to the appropriate level of help. CG has felt under threat. By contrast, at B there are staff who can care for WMA.

[137]The history of this litigation reveals that only when the courts have been closely involved has there been any progress with the acceptance of assistance from outside agencies and from professionals. There are serious risks now of WMA living a chaotic lifestyle if he is to remain with his mother. In addition, there had been some progress with regard to acceptance of help but it was at an unacceptable pace and now, of course, the help has been refused.

[138]WMA’s behaviour is of concern. Whilst I accept that at the time of the hearing the local authority workers had not seen WMA “kicking off”, nonetheless there has been clear damage in the past and evidence filed subsequently from the local authority, though not yet tested, has caused me considerable concern. WMA’s socially isolation is very worrying. He does not engage with others. He refers to no friends and yet he did engage with others at S I agree with KB and Dr. Carpenter. He desperately needs to engage with others now.

[139]What about problems at B? At first WMA will be most unhappy about the move. It is what he is dead set against. He will undoubtedly keep asking to leave. But he has been compliant previously and it is probable he will be again. He will continue to see his mother. I do not underrate the problems. He may try to leave. But in time I trust he will appreciate the new life he is being offered. It is not a panacea for his absence of life skills, he is very behind in being trained, but it is the right course.

[140]What about long term issues at B? I have been told of the likely circumstances where he would share with two others with learning difficulties. He would have a key worker and a person centred care plan. That supported living option would enable him to learn and not feel institutionalised. He would learn skills, for he has before. He would meet others. He would go out. I entirely accept that for WMA this is breaking new ground and progress will need to be carefully reviewed but I accept the move away will be in his long term benefit, even if the contents of the programme for him will need to be adjusted carefully.

[141]What if he remains where he is? I have already referred to a great number of the problems at home. The local authority, I am convinced, simply could not provide the regular support it knows is necessary. It is interesting that, even when the home conditions have been under the court microscope, MA has proved recalcitrant with the local authority. How much worse will it yet become?

[142]What of Ms Weereratne’s point that WMA has not demonstrably come to harm in his mother’s care? But the expert evidence is compelling, as she now concedes. A move for WMA is far, far more than social engineering. It is protective, life enhancing for someone with not much of a life, and simply the better option. True enough MA has provided basic health and shelter but I have concluded WMA is at risk from her.

[143]Accordingly, and weighing up these and other matters, there is no doubt in my mind it is WMA’s best interests to move to B. I am fortified in that conclusion by the view of the Official Solicitor that the expert witnesses are correct that such a move is in WMA’s best interests. I believe I have followed the path advocated by Ms Weereratne and the established case practice by conducting a careful balancing exercise. I have considered the important points and reminded myself of them from time to time. This is not a social engineering case. The evidence is unequivocal.

[144]I must, as Mr. O’Brien rightly reminded me, address again Article 8 and cross-check if the interference with WMA’s private and family life is necessary and proportionate. I agree with his submission that the court must remind itself that private and family life, however, are not the same as each other. A right to respect for family life does not trump the right to respect for private life. WMA can and should have a private life, i.e. a degree of independence so far as it is possible, and a chance to build relationships with those other than his mother.

[145]I quote from another part of the K v LBX case

[2012] EWCA (Civ) 79

not cited by Mr. O’Brien. In discussing whether or not the court would start from placing the person concerned with their family, Black LJ said this:

“A prescribed starting point risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. In its wider form incorporating reference to both private and family life, there is a danger it contains 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 in the outside world may not always be entirely compatible with the existing family life in the sense of continuing to live within the existing family home.”

[146]Accordingly, if one looks at WMA’s isolation, the refusal to engage with outside agencies, the poor conditions in the home and the absence of friends, save one for MA, of both mother and son and contrasts them with the opportunities for WMA at B then the opportunity for a higher quality private life is clear. The disadvantages in plainly deteriorating circumstances of remaining where he is are palpable.

[147]I accept, of course, the local authority must continue to respect private and family life for WMA. He must continue to see MA for regular contact and his best interests must not be prejudiced; yet it is clear his private life will be enhanced by moving. Indeed, the relationship with MA might even improve because there will be an end to that worrying mutuality referred to by Dr. Carpenter. I appreciate that the move may be an interference in MA’s private life and family life but it is more than justified in the circumstances. Deprivation of liberty.

[148]The court should look with care at questions of liberty and ensure with care that it justifies its actions by moving WMA so obviously against his wishes. I am persuaded that a move is necessary for the reasons I have set out. There are not fanciful but real risks here. MA, in effect, abuses WMA by restricting his development, keeping him isolated, refusing help, relying upon him for basic tasks, refusing monetary assistance, failing to ensure he is cleanly presented and keeping the home at times dirty and squalid.

[149]I have no doubt that by moving to B there would be a deprivation of liberty involved and not simple restraint. WMA will have to live at B. He will be in a flat that will be his. There is no time limit for him being away from MA. Accordingly, I must not simply declare what is in his best interests but make such orders as to enable the keeping at WMA at B practicable. That said, the terms of WMA being there must be the least restrictive of his freedom of action. He is an adult, not a prisoner, albeit an adult in need of careful and kindly but firm support.

[150]The law as to what amounts to deprivation of liberty is somewhat in flux at the moment. The two leading cases of P and Q v Surrey County Council

[2011] EWCA (Civ) 190

and Cheshire West and Chester Council v P

[2011] EWCA (Civ) 1257

are to be tested before the Supreme Court later this year or early next. I confess for my part it is not easy to follow the reasoning of the Cheshire West decision. That said, I agree strongly with the Official Solicitor that moving WMA to B would be a deprivation of liberty, one that the court must provide for and which the court should initially review after a number of months. That should be sooner rather than later and I will let both advocates address me as to what period of time should be inserted in the order today. I would have thought something of the order of three to six months.

[151]The local authority now concedes there will be a deprivation of liberty, at least because the move will be involuntary. I would go further and note that WMA at least in the short term objects to the arrangements for him and he may seek to leave. We simply do not know. So being in B may in itself be a deprivation of liberty. I will not delve into the meaning of “restraint” and “deprivation of liberty” as analysed in the Cheshire West and Chester case. Suffice it to say that my conclusion is in the short term the arrangements that the local authority suggest will deprive him of liberty and there needs to be a court order dealing with that precise point. Transition plans.

[152]JM has amended her plan in the near certain event of lack of family support for a move and that plan has the support of Mr. McKinstrie.

[153]What orders are necessary? I find that these are: a power for the local authority to enter the home if necessary; a power to the police to restrain WMA if necessary; an order that WMA be removed from his current home and taken to B where the local authority will have power to retain him if needs be; and the local authority will have the power, of course, in addition, to sign the tenancy agreement on his behalf. These measures are proportionate and necessary.

[154]How should the police operate? I agree with Ms Weereratne there should be a protocol agreed between the police and the local authority but inevitably that cannot provide for all eventualities. I direct the local authority and the Official Solicitor try urgently to agree the same but, nonetheless, the removal now needs to be effected quickly. I accept there should be a number of triggers for police action. Police action should, of course, be a last resort but it seems to me that they may well have to be involved.

[155]What about criticisms of the local authority? Ms Weereratne criticises the local authority in her final submissions for misunderstanding the decision making processes required under the 2005 Act. Certainly it is a rather strange approach apparently to concentrate on safeguarding rather than best interests issues. She made other criticisms too but, that said, I do not think that led to MA’s alienation from the local authority’s work with WMA. I believe MA is minded to be difficult in accepting any manner of help, given her reluctance to accept any perceived interference. Ms Weereratne sets out at paragraphs 45 to 53 of her final written submissions further criticisms of the local authority’s consideration of WMA’s best interests. Now, it is true that a complete and final care and transition plan was only placed before me after the involvement of the independent social worker but I do not think it is my role in this case to criticise all the procedures of the local authority, rather to urge them to take a review of how they deal with best interests issues in the future and how they structure the department. That is up to them and I say no more.

[156]What do I say about contact? I am persuaded by the plans proposed by J M and approved by Mr. McKinstrie. I will not set them out again here but I take the view they should be incorporated in my order.

[157]So it is clear, therefore, the local authority has succeeded in proving its case on the balance of probabilities. WMA can and should move to B. He lacks capacity to decide his place of residence. It is in his best interests to move and move quickly. I make appropriate orders for deprivation of liberty.

[158]I now invite the advocates to agree orders. I have received a draft order from Mr. O’Brien this morning and no doubt he will discuss it and has discussed it with Mr. Culverhouse [who is here instead of Ms Weereratne today]. There is no need for the deputyship application as has now been conceded.

[159]But, since the evidence was completed, the local authority has lodged but, of course, not had tested further evidence of KB dated 16th July. That evidence gives me some cause for concern. I know that the Delos visits are now refused. I know that CG was at threat of an assault in early July, I know that WMA has been seen in dirty clothes again and I know that MA has been extremely difficult. It looks as if MA has problems with her feet again and it appears, too, that WMA has become increasingly aggressive. There are concerns about WMA’s increasing temper and his anxiety. There are, therefore, reasons to worry.

[160]In the circumstances, therefore, I invite the local authority and the Official Solicitor to agree an order that deals with WMA’s removal within the next three working days because it is my view he needs now to move as soon as possible. - - - - - - - - - -