NB, Re [2017] EWCOP 16

Case No 12484638[2017] EWCOP 16
IN THE COURT OF PROTECTION
Date 9 th June 2017
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
IN THE MATTER OF NB
Before
HHJ Hilder
Between
LONDON BOROUGH OF TOWER HAMLETSApplicantVW FirstRespondentNBRespondent(through her Litigation Friend, the Official Solicitor)RespondentLONDON BOROUGH OF TOWER HAMLETS ApplicantVW First RespondentNB(through her Litigation Friend, the Official Solicitor)Second Respondent
H. Harrop-Griffiths for Applicant Local AuthorityNo attendance by or for First RespondentMiss Greaney, (instructed by Steel & Shamash Solicitors) for Second Respondent by her Litigation Friend the Official SolicitorThe proceedings were heard in public subject to an order made on 22 nd November 2016 pursuant to the Practice Direction – Transparency Pilot.This judgment is being handed down and delivered to the parties by e-mail on 9 th June 2017. It consists of 7 pages and has been signed and dated by the judge. The numbers in bold typeface and square brackets refer to pages in the hearing bundle.Hearing HEARING DATE: 17 TH May 2017
JUDGMENTINTRODUCTION
[1]In this matter I am concerned with the best interests of NB who was born on in 1993 and is therefore now 23 years old. The current proceedings began by COP1 application dated 9th November 2016 but in essence they are a continuation of earlier proceedings in which I gave judgment on 2nd October 2015 and which concluded with a declaration that NB should live at Address 1. Unfortunately that placement was not successful, and the current application was made in order to change NB’s living arrangements.[2]Final declarations as to NB’s lack of capacity to make decisions about where she should live and the contact she should have [with family members] were made on 28th August 2014. There is no suggestion that there has been any change in NB’s capacity since these declarations were made.

MATTERS CONSIDERED IN THE CURRENT APPLICATION

[3]I have read the following documents, most of which were collated into a hearing bundle:a. Filed on behalf of the Applicant: Position statement dated 16th May 2017 Statement by Niah Gaynair (Speech & Language Therapist), dated 8th November 2016 [B1] Statements by Azra Lodhi (Social Worker), dated 8th November 2016 [B69], 20th January 2017 [B90] and 10th May 2017 [A14]b. Filed on behalf of the First Respondent: Statement by VW dated 25th January 2017 [B104]c. Filed on behalf of the Second Respondent: Position statement dated 16th May 2017 Statement by Rose Anstess dated 16th May 2017d. Expert assessments and reports: Dr Hall and Dr Kabir, dated 27th March 2017 [C1]

BACKGROUND UPDATE

[4]At a hearing in September 2015, for reasons set out in the judgment handed down on 2nd October 2015, the Court determined that it was in the best interests of NB to remain living at P House whilst a permanent placement was sought. The alternative option of a ‘shared care’ arrangement between P House and VW’s home, either for the long-term or as an interim measure, was rejected.[5]There was some delay in identifying an appropriate placement to meet NB’s needs but by February 2016 a place at Address 1 was available, and NB was expressing a wish to move there. VW maintained her wish for a ‘shared care’ arrangement, with NB spending her time between Address 1 and the family home. An interim order was made on 8th February 2016 providing for transition arrangements and a final hearing. NB moved to Address 1 in April 2016 and (what was intended to be) a final order was made on 3rd May 2016. Weekly contact with VW was agreed and set out in a schedule. Notably, the agreement recorded that “All contacts will be planned in advance using contact plans.”[6]Unfortunately difficulties were quickly experienced. On 25th May 2016 the Local Authority made an application for further directions from the Court because NB had failed to return to Address 1 after a contact session with VW and was staying at the family home. [B4 para 7] At Court on 27th May VW gave undertakings in respect of arrangements to secure NB’s return to Address 1. Those undertakings were met, and NB returned to live at Address 1 on 3rd June 2016.[7]NB’s social worker visited her very shortly after her return to Address 1. NB assaulted her and there had to be a change of social worker.[8]NB continued to present with very challenging behaviour until, in September 2016, she was served with a notice to move out, [A17 para 6] prompting the current application. Finding a further placement for NB was a challenging exercise [B73 – 75] but by November Ms. Lodhi had identified Address 2, about which both NB and VW were “very positive.” [B75 para 26][9]On 6th December 2016 there was a hearing at which the Local Authority and the Official Solicitor as NB’s litigation friend were represented but which VW did not attend. NB herself came to court and made clear to me directly her wish to move to Address 2. The Local Authority sought a final order but the Official Solicitor considered that to be premature. Provision was made for evidence to be filed as to the progress of transition arrangements, evidence from VW and a further case management conference. Interim provision was made for contact between NB and VW to be supervised at the discretion of the Local Authority, and noting that VW intended to “be away over the Christmas period.”[10]NB moved to Address 2 on 16th December 2016. At around the same time VW took a month’s holiday in Jamaica. The trip was not sensitively explained to NB who was very distressed by the lack of contact in this period. [A17 para 7][11]At the hearing on 2nd February 2017 VW made an oral application for NB to return to live at the family home. That application was summarily dismissed for reasons given at the time. In view of behavioural challenges being exhibited by NB, a report was directed to be prepared by Dr Hall and Dr Kabir, with particular reference to strategies which may be deployed to minimise such behaviour so as to give NB the best chance of settling into her new home.[12]The Local Authority subsequently made an interim application to restrict VW’s direct contact with NB to fortnightly on an agreed and predictable day of the week for a specified period; and to restrict her telephone contact to twice a week on regular and specified days. Additionally it was proposed that here should be “at least 3 “ visits to VW’s home for up to 5 hours at Easter, Christmas and NB’s birthday.[13]Both the residence and the contact applications were considered at the hearing on 17th May. VW did not attend. NB again came to Court and expressed her wishes. She told me that she is not happy at Address 2 and wanted to return to Address 1. She was very concerned that items belonging to her had not been returned from Address 1. She wanted a regular time for contact, with an activity planned for her to do.[14]The Local Authority and the Official Solicitor were agreed that the Court should be invited to make final orders providing for NB’s continued residence at Address 2, with arrangements for contact with VW defined. I was asked to give a short judgment so that, in the event of any further litigation, contextual information would be readily available.

THE EVIDENCE

[15]NB’s wishes and feelings: In addition to NB’s own participation in all hearings, Mrs Anstess’ statement exhibits a lengthy attendance note recording a conversation with NB on 15th May 2017. I note in particular that NB describes herself as “not happy at [address 2]” and “want[ing] to go back to [Address 1] or somewhere else.” There is also exhibited NB’s handwritten list of the personal belongings which she considers to have gone missing in the process of her move from of Address 1, and other grievances such as not having been given a leaving party. More positively, she also notes that she would like to have contact with certain people from Address 1.[16]The Applicant: Azra Lodhi’s statements give an account of NB’s move. She describes how NB “was very unhappy” at Address 1 and “desperate to move to” Address 2 [B92 para 3] but “After being at [Address 2] for a few days NB started presenting with similar behaviours which she is reported to have displayed following each of her previous moves. This included NB saying that she was missing [Address 1] and the staff there…” [B93 para 10] Miss Lodhi describes how NB became extremely reluctant to use public transport (despite her frequently doing so as part of her routine in the past), insisting instead on being driven by taxi or in the placement minibus; and “numerous and at times intense” episodes of behavioural disturbance by NB, including “long periods of her screaming, crying and shouting…damage to property, assaults and allegations (frequently unsubstantiated) …and induced self-harming behaviours.” [A16, para 4][17]Ms. Lodhi acknowledges that the reasons for these outbursts are numerous “as NB has autism, high levels of anxiety and a history of early childhood trauma.” However, she also identifies a particular trigger for some incidents: “as NB is of the view that contact with her mother is key to her sense of stability and calm, she is also likely to scream, shout, kick or smash furniture, hit staff of service users in the vicinity if her mother arrives late for contact, fails to turn up for contact or threatens not to come in future.” [A17 para 5][18]Ms. Lodhi describes how current contact arrangements have “proved extremely difficult to manage in practice, mainly due to VW’s refusal to comply with any level of regulation” [A16 para 2]. Incident logs exhibited to her statement record 11 occurrences of challenging behaviour related to contact between 11th January and 10th May 2017. During that period VW was in Jamaica for almost three weeks but on return “agreed a time to visit NB by phone…without fully communicating this arrangement” to the social worker or staff: “This resulted in NB presenting her mother (and unprepared support staff) with an impossible list of demands about how they should spend the time. Within a very short space of time, feeling thwarted and angry, NB had thrown hot tea at her mother, threatened staff supporting her verbally and physically, assaulted several staff, a visiting social worker, the service manager and another service user…and cracked a glass door. Meanwhile when offered first aid by staff, VW was still determined to incite NB to ‘take it out on staff rather than her.” [A18 para 11][19]The First Respondent: Despite provision for her to file a statement setting out “her position on residence, care and contact,” VW’s (unsigned) statement of 20th March 2017 only sets out a list of 8 provisions which she would need “to facilitate a successful transition of [NB] moving back to the family home.” VW has not attended advocates’ meetings to which she was invited and has not made any submissions as to contact (other than that she was in agreement with the arrangements recorded in May 2016.)[20]However VW did attend an interview with Dr. Hall and Dr Kabir on 21st March 2017. They report her view that contact had recently been going well. She told them that having a planned activity was helpful but the removal of the mobility car from her had made it more difficult to arrange contact sessions. They report that VW “would prefer a mix of planned and unplanned contact visits” and “explained that due to a number of work and studying commitments it was difficult for her to identify a specific number of contact visits that she could commit to.” [C7 para 32] VW “commented that she has been reinforcing the message that NB now lives at [Address 2] and had not and will not make statements that undermine the placement.”[21]The section 49 report: Dr. Hall and Dr. Kabir confirm [C5 para 20] that the “Positive Behavioural Support approach” adopted by Address 2 in respect of NB’s challenging behaviour “would appear appropriate at present to try and meet the needs of NB and support staff.” By 1st March 2017 they found “some indications that the strategies adopted by staff have made a difference to the occurrence of behaviours which challenge…. Although incidents can still occur and they can often be of similar intensity, they (sic) has been a noted decrease in the frequency of challenging behaviour episodes.” They also found positive changes to NB’s attendance at her day service, the time she takes to get ready in the morning and her use of public transport. [C5 para 21 and 22] For the placement to succeed, they conclude that “NB needs to receive a consistent message about its permanence.” [C8 para 35][22]In respect of contact, Dr. Hall and Dr Kabir conclude that:
“Because of her autism, NB really values predictability and routine, and can get very upset if things do not happen as she expects them. Whilst recognising VW’s increasing work commitments and her desire to see NB when she chooses, it is our opinion that any contact between VW and B should happen in a planned way to help minimise the potential distress of not knowing… The activity for contact also needs to be planned, and to fit in with the overall plan for the management of NB’s behaviour.”

THE LAW

[23]I have regard to the principles of the Mental Capacity Act 2005 as set out in section 1 and in particular the requirement at section 1(5) that the decision of the Court must be made in the best interests of NB.[24]In determining NB’s best interests, I have regard to section 4 of the Mental Capacity Act 2005 and in particular the requirements at section 4(6) to consider her past and present wishes and feelings, her beliefs and the values that would be likely to influence her decision if she had capacity; and at section 4(7) to take account of the views of anyone engaged in caring for NB or interested in her welfare (which I consider includes VW.)

CONCLUSIONS

[25]Residence: The placement at Address 2 is the only option before the Court for NB’s residence. Ms Lodhi identified “the positives” about Address 2 [B97 para 25], including its proximity to VWs home, the good match of other service users (verbal, and of similar age to NB) and the effective support team of staff. She expressed concern (in January 2017 [B97] para 26) that staff at the placement had not yet supported contact between NB and her mother but described steps taken to provide external supervisors whilst the staff got to know NB.[26]I accept the unchallenged professional evidence that NB is receiving appropriate care at Address 2, with the result that the initial challenges are beginning to reduce. I further accept the professional evidence that, in order to maximise the prospects of success in this placement, NB needs to be given a consistent message about its permanence. I welcome VW’s assurances to Dr Hall and Dr Kabir that she takes the same approach.[27]In so far as NB herself expresses a wish to live somewhere else, I note that such expressions follow a now familiar pattern: NB expresses a keen wish to move somewhere, and then once moved, a degree of distress and a wish to go back to her previous home. Through these protracted proceedings, the Court has seen NB express the same approach to her move from P House to Address 1, and in respect of interim moves before then. In the particular circumstances of this case, I conclude that NB’s stated wishes in respect of where she lives at present cannot be given decisive weight. I note that her Litigation Friend takes the same view. I am satisfied that it is in NB’s best interests to continue living at Address 2.[28]Contact: I am satisfied that contact between NB and VW has not in fact been taking place as frequently as current arrangements envisage (weekly). I acknowledge VW’s competing commitments of employment and study but I accept the evidence of Ms. Lodhi that, as a result, contact has become unplanned, unregulated and unpredictable. I further accept the evidence of Ms. Lodhi and the doctors that this approach to contact has had a serious adverse impact on NB’s behaviour, and therefore the stability of her placement at Address 2 and her general wellbeing.[29]All parties have always acknowledged that NB’s relationship with VW is very important to her. I am satisfied that, in order to preserve all that is positive in that relationship, it is necessary and proportionate now to provide for direct contact between them to be reduced to fortnightly and in accordance with a planned timetable, as the Applicant Local Authority seeks. The proposed arrangements accord with what seems realistically achievable by VW and in the best interests of NB.[30]In so far as arrangements necessary to give effect to this decision may amount to a breach of Article 8 rights, I am satisfied that such is necessary and proportionate.