PX, Re [2025] EWCOP 56 (T2)

IMPORTANT NOTICE

This judgment was delivered in draft via email on 7 th May 2025 following the contested interim hearing on 2 nd May 2025. It was formally handed down at the next hearing on 20 th May 2025. This judgment was delivered in public but a transparency order dated 2 nd May 2025 is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of P must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

[2025] EWCOP 56 (T2)

IN THE COURT OF PROTECTION SITTING AT WOLVERHAMPTON

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

AND IN THE MATTER OF PX

Date 7 th May 2025

Before: HHJ Arthur

Between

STAFFORDSHIRE COUNTY COUNCIL (LA)Applicant

PXRespondents

MXRespondent

FXRespondent

______________________________________________

JUDGMENT AT INITIAL URGENT INTERIM HEARING

2 ND MAY 2025

______________________________________________

Introduction:

[1]These proceedings were heard in public subject to a transparency order made on 2nd May 2025.

[2]This judgment is being delivered to the parties in draft by email on 7th May 2025, with formal handing down listed at the next hearing on 20th May 2025. At the conclusion of the urgent hearing on 2nd May 2025, I gave my decision on the key issues arising in this case orally, but due to the hearing being listed urgently at short notice with a very limited time allocation which had already over-run, within a busy list of other cases, I indicated to the parties at that time that I would provide my reasons via a written judgment as soon as possible thereafter. What follows are my reasons for the decisions which I outlined orally at the hearing.

[3]I am concerned this afternoon with a young lady, PX. She is 18 years old. She has been diagnosed with Downs Syndrome, Hirschsprung’s Disease (a bowel disorder), Hypothyroidism and Nystagmus. She has learning difficulties, speech and language difficulties, which affect her capacity to make decisions about her affairs.

[4]The application which brought the case into Court proceedings was made by Staffordshire County Council (who I will call the local authority, or “LA” for short). The LA was represented by Mr Green of counsel, instructed by the solicitor with conduct, Ms R, the allocated social worker (“SW”) Ms O, the Service Lead Ms P, and another SW Mr A, all of whom attended the hearing. The author of the SW statement in support of the LA’s application was EI who did not attend this hearing.

[5]PX’s mother is MX. She attended this hearing, but was not legally represented, as she said she had not had time to seek legal representation. She did not seek to adjourn this hearing to allow her time to obtain legal representation, and she represented herself competently and comprehensively, showing signs of having been compromised in her preparation of the case, even though she had not received some of the documents until shortly before the hearing. I allowed her time to read the updating documents, and she had previously read the documents contained within the bundle.

[6]PX’s father is FX. He attended this hearing, and was represented by his solicitor, Ms V.

[7]PX did not attend the hearing as it would not have been in her interests to do so. She was not represented at this hearing due to insufficient time to arrange representation, but I invited the Official Solicitor to act as her litigation friend hereafter in this matter, and hopefully this will be arranged before the next hearing listed on 20th May 2025.

Background:

[8]This matter has an extensive history dating back to when PX was a child. In 2014, PX’s parents divorced, and PX and her older brother were subject to private family law proceedings to determine with which parent they should live. Those proceedings concluded with a child arrangements order (“CAO” for short) that PX live with FX, and that her time with MX should be supervised. I do not have the judgment from those proceedings, so do not know the details of the reasons for that decision, and consideration will need to be given in due course to whether that judgment should be disclosed into these proceedings. However, it is clear from other documents that have been filed in these proceedings that the Court made findings against MX (on the basis of an independent expert psychological assessment by Professor Wilcox) that MX had emotionally abused PX when she was living with MX between March and November 2021. During that time PX refused to spend time with her father or the paternal family, reduced her social activities becoming increasingly isolated, and there was an overall deterioration in PX’s emotional wellbeing. These findings of emotional abuse were the basis for PX’s contact with MX needing to be supervised. Although MX does not agree that the findings were accurate, she does not dispute that the findings were made, so this summary is sufficient information for the purposes of today’s emergency hearing, and the detriment of delaying today’s decision in order to obtain that judgment outweighs the benefit of having that judgment to inform the Court’s decision.

[9]PX’s older brother turned 16 years old before the conclusion of the family law proceedings so there was no order in respect of him, but he chose to live with FX.

[10]The Family Court also made an order under s. 91(14) of the Children Act 1989 prohibiting MX from making any further Children Act applications in respect of PX, effective until 8/4/2025. On 5/5/23, HHJ Harris (as she then was) refused on papers MX’s application for permission to apply for a variation to the CAO in respect of PX, because PX was thriving in FX’s care with no concerns regarding her welfare, PX was settled and content living with her dad and having contact with MX, and further proceedings would not be in PX’s welfare interests given the extremely hostile nature of the past litigation. HHJ Harris commented that whilst MX reported completing the recommended CBT course, the content and tone of MX’s written comments within the application raised considerable concern as to whether she had moved forward in her attitudes towards FX and ability to work cooperatively with him in PX’s best interests. HHJ Harris endorsed the LA’s proposals for gradually reducing the supervision of PX’s time with MX, as long as it did not undermine her placement with FX, but if it did destabilise PX’s living arrangements, MX’s contact would have to revert to being supervised again, or even terminated.

[11]On 17/11/2024, an Education Tribunal determined that PX should attend C1 (as FX proposed) as opposed to remaining at C2 (as MX proposed). PX had attended C2 (a special school) since 2018. She was refused a place in their Sixth Form as there was not a place available for her, so she was out of education from September 2023 until January 2024, when a place became available at C2 so she returned there until the Tribunal hearing determined that she should move to C1. She has attended C1 since February 2025. The plan was for her to live there for 38 weeks a year, living with FX for the remaining 14 weeks a year. Her contact with MX has progressed to unsupervised contact, although progression to overnight contact was delayed because MX was directed to attend training first for rectal washouts which are required by PX every other day.

[12]On 2/4/2025 FX made a safeguarding referral to the LA regarding MX’s care of PX, alleging that she had undertaken rectal washouts without the required training, misrepresented the training she had had, and obtained inappropriate prescription medication for PX by misleading the GP. He also alleged that MX was attempting to alienate PX from him, and said that their son had reported to him that MX had said that FX had tried to kill her. He also alleged that MX had tried to remove PX from school at times when contact had not been agreed.

[13]MX disputed needing rectal washouts training, but agreed to go anyway. This training took place on 15/4/2025. FX brought PX to the hospital for the rectal washouts training appointment, with the intention of taking her to watch a football match afterwards. PX was wearing her football kit and at the start of the appointment she spoke excitedly about the planned football match to the nurse, NX, undertaking the training with MX. During the training session, NX left MX alone with PX for 15 minutes, following which NX reported (via email to the SW Ms I dated 15/4/2025 i.e. the same date as the appointment, and marked “Importance: High”) that PX’s presentation changed from “…chatty, happy looking forward to going to the football with her Dad, brother and DP [FX’s partner]…” to “…shy, reluctant to speak and give eye contact…” MX asked nurse NX to tell FX that PX did not want to go to the football and wanted to go home with MX. NX said she “…suggested it was a bit late in the day to change plans and [PX] had no overnight bag with her, but MX stat[ed] the court says PX can make her own mind up. Very long time later FX let MX take PX home…FX very upset and tearful but remained polite, MX said to me she was frightened of what FX might do, snatch PX in the car park, but remained calm but didn’t appear upset more cross that she couldn’t just take PX. I felt it a very strange/odd situation. PX’s behaviour changed so quickly from happy confident appearance to very childlike behaviour…During my nursing career I have experienced many family separations, disputes, child protection cases, but never experienced anything like this where the encounter changed a child’s behaviour so dramatically and would appreciate aa call to discuss.”

[14]Since MX removed PX at this appointment, MX says PX does not wish to spend time with FX, so she has not returned PX to his care. She also opposes PX returning to C1 raising a number of safeguarding concerns about it during this hearing. MX indicated that if the Court ordered her to return PX to school, she would ask that it be after this weekend on Monday 5/5/2025, as she had planned to take PX to various activities to celebrate the SL New Year, organised with other members of the SL community.

Parties’ positions:

[15]By a COP1 application dated 30 April 2025, the LA urgently applied for personal welfare orders under the Mental Capacity Act 2005 ('the MCA 2005') relating to PX's residence and contact. Specifically, the LA seeks the following orders:(i) A declaration that PX lacks capacity to conduct these proceedings and make decisions regarding her residence and contact.

(ii) An order that MX return PX to FX’s care in accordance with the LA’s Conveyance Plan;

(iii) An order that PX’s time with MX be supervised (by the LA if there is no suitable family member willing and able to supervise) in accordance with the LA’s Contact Plan;

(iv) An order restricting MX’s telephone calls and messages to PX in accordance with the LA’s Contact Plan.

[16]These personal welfare orders were supported by FX, but opposed by MX, who wished for PX to remain in her sole care, for her not to return to C1 (at all, or at least not until after the weekend activities), and for her to have no contact with FX.

[17]The LA also seeks orders for disclosure of the bundle from the previous proceedings into these proceedings, joining PX as a party to proceedings and appointment of the Official Solicitor (“OS”) as her Litigation Friend, and release of all documents to the OS so they are fully informed about the background to the case. These case management directions were supported by all parties.

The Law:

[18]The core legal principles which underpin my decision are as follows:

[19]A person must be assumed to have capacity unless it is established that she lacks capacity (s.1(2) MCA 2005).

[20]There is a two-stage test for determining whether a person has capacity: (1) the diagnostic test set out in s.2(1) MCA 2005 which is decision specific:

“A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” (2) the functional test set out in s.3(1) MCA 2005: “For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).”

[21]The inability to undertake any one of the requirements set out in the above sub-paragraphs will be sufficient for a finding of incapacity provided that the person concerned is unable to satisfy any one of the individual component elements because of an impairment of, or a disturbance in the functioning of, the mind or brain (RT and LT v A Local Authority

[2010] EWHC 1920 (Fam)

at [40]).

[22]The burden of proof lies on the person asserting a lack of capacity and the standard of proof is the balance of probabilities (s.2(4) MCA 2005 and KK v STC and Others

[2012] EWHC 2136 (COP)

at [18]).

[23]S. 15(1) MCA 2005 provides that the Court may make declarations as to(a) whether a person has or lacks capacity to make a decision specified in the declaration;

(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and

(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. S.15(2) provides that "act" includes an omission and a course of conduct.

[24]S. 48 MCA 2005 gives the Court the power to make an interim order by providing that:

“…the Court may, pending the determination of an application to it in relation to a person ('P'), make an order or give directions in respect of any matter if (a) there is reason to believe that P lacks capacity in relation to the matter, (b) the matter is one to which its powers under this Act extend, and (c) it is in P's best interests to make the order, or give the directions, without delay.”

[25]If a person is found to lack capacity the court then proceeds to make a best interests decision pursuant to s.1(5) MCA 2005, which provides:

“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

[26]When determining what is in a person's best interests, consideration must be given to all relevant circumstances, as set out in s.4 MCA 2005:

“(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of - (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2). The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3). He must consider - (a). whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b). if it appears likely that he will, when that is likely to be. (4). He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. …. (6). He must consider, so far as is reasonably ascertainable - (a). the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b). the beliefs and values that would be likely to influence his decision if he had capacity, and (c). the other factors that he would be likely to consider if he were able to do so. (7). He must take into account, if it is practicable and appropriate to consult them, the views of - (a). anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b). anyone engaged in caring for the person or interested in his welfare, (c). any donee of a lasting power of attorney granted by the person, and (d). any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in sub-section (6). …. (11). 'Relevant circumstances' are those - (a). of which the person making the determination is aware, and (b). which it would be reasonable to regard as relevant.”

[27]The case of ITW v Z

[2009] EWHC 2525

sets out the following important points when evaluating what is in P's best interests:

“(i) The first is that the statute lays down no hierarchy as between the various factors … beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's 'best interests'. (ii) The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight. (iii) The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of 'magnetic importance' in influencing or even determining the outcome.”

[28]Whether or not a person has capacity to make decisions for herself, they are entitled to the protection of the European Convention on Human Rights; in this case, the Article 5 right to liberty, Article 6 right to a fair trial, and Article 8 right to respect for private and family life. There shall be no interference by a public authority with the exercise of these right except in accordance with the law, and where it is necessary, and proportionate to the risks identified. The LA has a duty under section 1(1) of The Care Act 2014 to promote individual wellbeing, including in relation to personal relationships, and must ensure that any restriction on a person's rights or freedom is kept to the minimum necessary. It is an aim of the UN Convention on the Rights of Persons with Disabilities to secure the full enjoyment of human rights by disabled people and to ensure they have full equality under the law. Further, it is the aim of the UN Convention on the Rights of Persons with Disabilities to secure the full enjoyment of human rights by disabled people to ensure that they have full equality under the law. There is, however, no presumption in favour of a right to family life in the best interests analysis (K v LBX

[2012] EWCA Civ 79

[29]In The Health Service Executive of Ireland v CNWL [2015] EWOP 48, Baker J (as he then was) considered the importance of P’s involvement in proceedings, particularly those involving deprivation of liberty. Baker J opined that "very urgent cases" might require a slightly different approach to representation for P, albeit only on an interim basis. He stated at paragraph 34:

“… In very urgent cases, the court may conclude that an interim order should be made without any representation by or on behalf of the adult, but direct that the question of representation should be reviewed at a later hearing. Such a course seems to me to be consistent with the analysis of Black LJ at paragraph 104 of Re X. In every case, however, when carrying out that analysis, the court must be alive to the danger identified by Black LJ, at paragraph 100 in Re X that the process may depend "entirely on the reliability and completeness of the information transmitted to the court by those charged with the task" who may "be the very person/organisation seeking authorisation for P to be deprived of his liberty".”

The Evidence:

[30]The LA and FX submitted that the evidence of risk of harm to PX in MX’s care was so clear and urgent that it required the Court to make decisions urgently today. As the matter had been listed with a time estimate of 1 hour only (as it was squeezed into a busy list with no more Court time available prior to the Bank Holiday weekend) all parties agreed that the matter should be dealt with on submissions, as there was no time to hear oral evidence from anyone.

[31]For the purposes of determining these issues, I have therefore considered those oral submissions, together with the written evidence. The bundle included the applications, a witness statement of the SW, the email from nurse, NX, the LA record of FX’s recent safeguarding referral, two assessments of PX’s capacity (regarding decisions about residence and contact respectively), and HHJ Harris’ order refusing MX’s application for permission to make a further Children Act application (referred to above). Just before the hearing, the LA circulated the following further documents via email: the Education Tribunal decision (referred to above) and EHCP dated 30/1/2025, a draft order, the LA’s position statement, the LA’s Conveyance Plan, and the LA’s Contact Plan.

[32]As MX said she had not had the opportunity to read these new documents before the hearing, because she was participating in pre-hearing discussions, I allowed her 30 minutes to read the LA’s position statement, the LA’s Conveyance Plan, and the LA’s Contact Plan. There was no need for her to read the education documents as she had had them previously when they were first produced, and no need to read the draft order as that was a matter for the Court to determine. Unfortunately MX was confused as to what she needed to read, and read the SW’s statement in support of the application instead of the LA’s position statement, but I took MX through the salient points during the hearing (in particular, the 4 orders the LA was seeking at today’s hearing) in order to get MX’s position and submissions in respect of each issue. To assist MX to make relevant submissions, I asked her a number of questions to help her to sum up her position in respect of residence and contact.

[33]I also received a brief oral update from the allocated SW regarding a visit she had made to PX at MX’s home on the day before the hearing. She said PX was markedly different from when she visited her 3 days beforehand on Tuesday 29/4/2025 when PX had seemed happy, and ready to go back to C1. On Thursday 2/5/2025 she appeared shy, covering her face with a pillow, refusing to make eye contact, and her physical appearance and personal hygiene had deteriorated significantly. The SW alleged that MX had tried to block her from communicating with PX.

[34]As this was an urgent hearing, put into the court list at short notice, it is not the place to decide who (if anyone) is at fault, or PX’s long-term best interests. Today’s issue is where she should be placed in the interim, as a holding position, pending a proper contested hearing (which I have now listed on 20/5/2025 with a time estimate of a day so all issues can be ventilated properly, with time beforehand for the parties to file further written evidence).

Capacity:

[35]A capacity assessment regarding residence and care was undertaken by a previous Social Worker Ms L on 4/10/2024 [F66-81], and a separate capacity assessment regarding contact on 23/4/25 [F82-96]. In her residence Assessment Capacity Report dated 4/10/2024, Ms L stated that PX lacks capacity to make decisions regarding where she should live, and although the assessment was undertaken prior to PX’s 18th birthday, she commented that:

“…due to her diagnosis and disability this [her capacity] is unchanged and it is not likely to change in the future when she turns 18yrs. PX likes to please people. The court made the decision at the last court hearing for her to live with FX and have contact with MX. this arrangement will come to an end when she is 18yrs and PX would like to live in a supported living environment with friends and see her parents regularly…PX has a learning disability and although she is in education to progress with her independence skills, it is not thought she will regain capacity to make the decisions independently about her next steps in where she would like to live, as she does not understand the detail of what is needed in her care and support to keep and promote her health and wellbeing.”

[36]In her contact Assessment Capacity Report dated 23/4/25 (the visit undertaken on 17/4/25, 2 days after PX moved to live with MX), Ms L reported that PX told her that FX had hurt her at the appointment on 15/4/25 by hugging her to hard but that this had not left any marks. PX could not explain why she had changed her mind from returning home with FX, to moving to live with MX, except by referring to FX hugging her too tightly. She said she enjoyed spending time with MX and there were no times with MX that were not good. She enjoyed C1 and had made friends there. Ms L concluded that PX did not have the capacity to retain or weigh up information about where she spends time. Ms L worried that PX was confused by the concept of “living with” as opposed to “spending time with” each of her parents. Ms L also reported that PX mentioned a plan to go on holiday to visit MX’s family in Sri Lanka, although no dates were given.

[37]It is clear from the capacity assessment reports that PX lacks capacity to conduct these proceedings and make decisions in respect of where she lives, and with whom/how she spends time. PX does not fully understand information relevant to the decision and in particular is unable to use that information as part of the process to make a decision. Her lack of capacity arises from an impairment or disturbance in the functioning of her mind, in particular her learning disability. There is no realistic possibility that she might regain capacity given the evidence of the nature and extent of her problems which are long-standing and not likely to fluctuate or improve.

[38]MX disagreed that PX lacks capacity to make decisions in respect of her residence and contact arrangements. Her reasoning was that PX had told MX her wishes, and also that PX’s wishes had been taken into account – they had been all but determinative – in the Education Tribunal’s decision, so should be taken into account now. I consider that MX was (perhaps entirely understandably) confusing litigation and specific decision-making capacity, with PX’s wishes and feelings. PX can absolutely express her wishes and feelings, and they should be considered and taken into account as part of any best interests assessment (including today’s emergency decision), and that she has a right to be consulted about decisions concerning her. These factors are important features of her personal autonomy protected by Article 8. However, that is not the same as saying that PX has litigation capacity for these proceedings and decision, nor that PX’s wishes should be determinative (and they were not in the Education Tribunal’s decision, as I read it). There is also considerable doubt as to whether PX’s wishes and feelings as reported by MX are accurate and reliable, or whether they have been influenced or misreported by MX, given the sudden and (relatively) unexplained change in PX’s expressed wishes and her demeanour. MX’s assertions that PX has capacity to make these decisions is unsupported by any other evidence including from any of the many professionals who have been involved with PX over many years. MX’s assertions may be self-serving.

[39]I am entirely satisfied, on the basis of Ms L’s two reports, that there is reason to believe that PX lacks litigation capacity. I therefore make an interim declaration, pursuant to s. 48 MCA 2005, that there is reason to believe that PX lacks capacity to: i) Conduct these proceedings; ii) make decisions as to where she should live; iii) make decisions as to what contact she should have with MX.

[40]These matters are matters to which its powers under the MCA 2005 extend, and it is in PX's best interests to make this order without delay.

Welfare analysis:

[41]Having concluded that there is reason to believe that PX lacks capacity to make decisions about where to live and what contact she should have with MX, the next question is whether it is in her best interests to make any orders "without delay" (s.48(c) MCA 2005). What are the available options? The only realistic options available are to return PX to C1/FX’s care (as proposed by the LA and FX) or let her remain in MX’s care (as proposed by MX). Of these available options, which of these is in PX's best interests? I have given these question the most careful consideration, with reference to the factors set out in s.4 MCA 2005.

[42]During the hearing, MX made a number of allegations. Whilst I accept that she had not yet had the opportunity to file written evidence (which I rectified by directing her to file a statement before the next hearing) so she cannot be criticised for raising things for the first time during this hearing, she did approach them in an odd order of priorities (i.e. not raising the most significant issues first) she had little to no evidential basis for any of her allegations. She started by agreeing to return PX to C1 on Monday 5/5/2025, her only objection to immediate return being the SL festivities. However, she then changed her position to not wishing to return PX to C1 at all, saying that the Education Tribunal decision had been wrong as it had not taken her views into account. When I pointed out that it specifically referred to taking her views into account, and said that this needed to be addressed via appealing the Education Tribunal decision, which she had not done, she said she had not been able to do so as she had not been a party to those proceedings – which presumably was something she could have appealed at the time if this was wrong. MX then asserted that the Education Tribunal had treated PX as if she had litigation capacity because it based the decision on PX’s wishes and feelings. I pointed out that it had taken PX’s views into account entirely appropriately, but that this did not equate to PX having litigation capacity.

[43]I then asked MX where she and PX were, and MX refused to provide that information save to say that she was at a friend’s house. MX initially said this was because she did not wish FX to know where she was due to the domestic abuse she claimed he had perpetrated against her, but when I queried this (based on the Family Court placing PX in FX’s care) MX changed her account to saying that her friends did not want FX to know their address. MX agreed to disclose the address to the Court, but objected to it being shared even with the LA as “they were biased” against her. She said it was unnecessary as if the Court ordered that PX return to C1, she said she would return home with PX, and the LA knew her address so could collect PX from there. MX said she had attended the hearing from her friend’s home so that she had childcare for PX during the hearing. There was then a discussion about the SL festivities, which were due to take place at the same friend’s home, and were not a public event but had been specially arranged for PX because she had been in FX’s care during the actual SL New Year – that was why the festivities were taking place on the wrong date, and why they were not advertised online. There was also a discussion about PX’s passport, with MX assuring the Court that PX only has one passport which is held by FX, who is paranoid (without basis) that MX will abscond with PX.

[44]Only after all of these discussions did MX assert (for the first time) that she believed that PX may be being sexually abused by someone (staff or student) at C1. If she genuinely held that belief, one might think that it would have been the first thing that she would have raised in response to my questions about whether she had any objections to PX returning to C1, and that it would have prevented MX from saying initially that her position was that she would return PX to C1 following the weekend activities. The basis of her belief was that the school’s prospectus mentioned promoting “relationships” between students (which MX had queried, and the school had confirmed this meant “friendships” not “sexual relationships”) and MX believed that PX’s period was late based on a period-tracking app on PX’s mobile telephone. Based on this evidence, MX had taken PX to the GP who had undertaken a pregnancy test which was negative. MX had not raised her concern about potential pregnancy with FX or the LA prior to the hearing, nor consulted them regarding the GP and pregnancy test, despite this taking place 2 weeks beforehand. FX asserted (via his solicitor’s submissions) that PX had had a period just before MX removed her, and therefore she was not due until next week so was not late. Had MX spoken to FX and/or the SW about her concern, PX might have been saved the worry and intrusion of the GP visit and pregnancy test. MX accepted that when she had questioned PX, she had not disclosed any sexual activity, and the only touching she mentioned was that a man (unidentified) had stroked her face – no context given, but when MX asked PX directly if anyone had touched her anywhere else, she said no. MX said the nurse at the GP surgery also asked PX similar questions, and PX again denied any inappropriate contact.

[45]It raises grave concern that MX will leap to conclusions on the basis of little to no evidence, and put PX through the potential distress of questioning and tests by strangers unnecessarily. MX also failed to take any appropriate steps to consult relevant persons in particular FX, the SW, and the school. MX said she had raised the issue of potential sexual abuse with C1, who she complained had not responded satisfactorily – however, she said this was 2 months ago, so was clearly not regarding her recent concern about PX’s missed period, which she accepted she had not discussed with the school. There is no evidential basis to suggest PX is at risk of sexual abuse at C1. There is evidence that PX remains at risk of emotional harm in MX’s care by leaping to conclusions which are not based on evidence, and taking unilateral actions which could cause emotional harm to PX.

[46]MX freely acknowledged that PX was happy at C1, and that she had learnt a lot there, so she was not dismissing PX returning to C1. However, she then raised concerns that there were inaccuracies in PX’s EHCP and clinical care plan which meant that C1 did not have accurate evidence regarding PX’s health, educational, and social care needs prior to PX’s arrival. It was unclear why she felt this would still pose a problem now that they have had 2 months’ practical experience of caring for PX, which will have more than made up for any deficits in the EHCP details. Even if there is an issue, it is not one which requires urgent attention, as MX could not point to any actual/practical problem which had arisen in the 2 months when PX had been living at C1. These issues could await a properly contested hearing regarding PX’s medium to long-term welfare needs, but should not prevent this urgent hearing considering returning PX to C1 in the interim. MX responded:

“If the Court makes that decision [to return PX to C1 in the interim], it will be the LA’s responsibility if something happens to PX, if she is injured.”

[47]In addition to the risks raised by MX’s submissions during the hearing, there is also the risk posed by MX’s unilateral decision to take PX from the appointment on 15/4/2025, and her refusal to promote contact with FX or return PX to C1 since. Whilst I make no findings on the factual issues at this interim hearing, even on MX’s own account, given freely via her oral submissions at this hearing, MX had no good reason to justify her actions. Nurse NX did not observe FX hugging PX too hard during the medical appointment, but even if he did, it would not be a good basis to change residence unilaterally, without no planning, particularly in the face of the previous Family Court decision (which included findings against MX) and against the years of status quo. This unjustified unilateral action by MX poses a risk of emotional harm to PX in MX’s care. The speed with which PX’s demeanour and expressed wishes changed during the appointment on 15/4/2025 (according to Nurse NX’s email) demonstrates that MX may be influencing PX, and may be able to do so within a short space of time if unsupervised. Whilst I make no findings of fact at this interim hearing, the Court must ensure that PX is protected from harm pending the Court being in a position to make longer-term welfare decisions. There is no concern raised in respect of FX’s or C1’s care of PX (except by MX, which is not founded on any evidential basis). FX and C1 are therefore safe interim placements for PX, whereas MX is not safe for unsupervised contact.

[48]Regarding the LA’s request for an order that MX’s contact be supervised, MX objected because it would be:

“…completely impractical, and not what PX wants, as PX made it very clear that she wants to live with me, and see more of me.”

She clarified the impracticality related to the distance between where she lives and C1 – nearly a 3 hour round trip by car, which was disproportionate to 1 hour contact. She was also sometimes unavailable to attend at lunchtime due to work commitments, although she thought she could confirm dates of availability at the start of each week. She also complained about the cost of travelling 2x/week, which she blamed on FX who she claimed had financially abused her, and had failed to provide any financial support since PX had been in her care. However, she also claimed that prior to removal she had visited PX on approximately alternate weekends (taking PX home with her then returning her) and once midweek, which is the same amount of travel as per the LA’s current proposals (albeit for less time, and at potentially less convenient times).

[49]MX also objected to her contact being supervised, on the basis that it was unnecessary and was a breach of PX’s confidentiality. When PX’s confidentiality is weighed against the risk that MX will try to influence PX during any unsupervised contact, the balance of harm during a short interim period pending the contested hearing in under 3 weeks’ time falls firmly on the side of protecting PX from the risk of emotional harm by requiring MX’s contact to be supervised.

[50]At the very end of the hearing, when I asked MX whether there was anything else she wished to say in support of her case, she suddenly made a number of allegations of potential physical, emotional, and/or sexual abuse against FX. she said:

“PX said she doesn’t like FX staring at her during [rectal] washouts, and touching her bum. He cut her bikini line [pubic hair] and touched her privates. PX doesn’t like FX grabbing her, shouting at her, hugging her, or being naked in front of FX. She has to do everything on her own at FX’s house, for example she asks my help with washing her hair, so I asked her who helps at FX’s house, and she made a face and said she doesn’t like FX coming near her, so she does it herself. When she was having a shower [at my house], she called me, saying she had poo stuck in her vaginal hair. It was matted, she couldn’t get it out, so I helped her. I asked if it had happened before, and she said yes, FX had cut her vaginal hair with scissors and touched her there. That raised significant concerns with me. Inserting a 6 inch catheter into her rectum she said hurts her. She said FX had to use the “squeezy bottle” by which she means the enema bottle, which I know causes her significant distress. These are all things I’ve raised with the LA, but they have not investigated any of them. Regarding enemas, PX had 5-6 fainting episodes about 12 months ago, which FX only told me about after the 2nd or 3rd episode, which coincided with PX saying FX used the enema not the washout process. I know from previous experience that PX hates enemas, so that might have led to distress or stress so PX fainted. FX said in one message to me that he’d used the enema because she’d refused washouts.”

[51]This lengthy account demonstrates again MX’s tendency to jump to conclusions unfounded in evidence. For example, assuming that fainting fits were due to enemas when neither PX nor FX had said so. She even jumped to conclusions when the evidence before her pointed to the opposite. For example, despite explaining that she had had to cut PX’s pubic hair to remove faeces and matting, she criticised FX for cutting PX’s pubic hair and touching her genital area, when this would have been a perfectly appropriate part of FX’s tending to PX’s hygiene needs (as MX had done herself). This heightens the concerns against MX, without raising any genuine concerns regarding FX’s behaviour.

[52]In considering PX's best interests, I must apply the factors outlined within section 4 of the 2005 Act. This includes, so far as is reasonably ascertainable, PX's wishes and feelings (past and present), beliefs and values and any other factors that would impact on her decision, were she to have capacity to make it herself. In the past PX has made it clear to multiple professionals on different occasions over a long period of time that she wishes to live at C1 (because she wants to live with friends), and in the holidays to live with FX and visit MX. Even MX says that PX enjoys attending C1 and was happy there and she would not oppose her returning there (after the weekend, provided she is not being sexually abused or cared for by untrained staff there). There is insufficient reason given by MX for PX’s sudden change of position, which is evidence that it may be as a result of MX’s influence. It is clear from the written evidence of several professionals that PX is a people pleaser, which puts her at greater risk of being influenced by MX. Whilst I make no finding that this has happened, it is a real risk, from which PX must be protected in the interim, pending the Court being in a position to consider all of the relevant evidence properly to make longer-term decisions regarding PX’s welfare.

[53]Other factors in section 4 of the 2005 Act are consulting (if it is practicable and appropriate), the views of identified individuals, including anyone engaged in caring for PX or interested in her welfare. This obviously includes PX’s parents. FX’s views align entirely with the LA and all other professionals involved, that living away from her parents by attending C1 is the best way to build PX’s independence and skills. FX arguably knows PX best as he has been her primary carer for recent years. MX’s wish to have PX in her care has been clear for a long time, and she has now acted on those wishes unilaterally, without consultation or planning or preparation, potentially causing PX emotional harm by the sudden move and by MX possibly seeking to influence PX’s views. MX raises concerns about PX living with FX and attending C1, yet those concerns are not substantiated by any proper evidence.

[54]It is unlikely that PX will have capacity in relation to her residence and contact arrangements in future. PX was not able to engage in this emergency hearing due to the lack of notice, but I have made directions for her to be joined as a party and represented by the OS so that she can (so far as reasonably practicable), participate as fully as possible in these proceedings, and the decisions regarding any act to be done for her, and any decisions affecting her.

Conclusion:

[55]All factors set out in s. 4 of the MCA 2005 point to it being in PX’s welfare best interests to move immediately out of her MX’s care (given the immediate and ongoing risk of emotional harm found in previous proceedings and apparently ongoing to date). It is clearly in PX’s best interests to return to C1, the school she has enjoyed attending for the last 2 months until MX unilaterally removed her. There is no proper evidence of risk either at C1 or in FX’s care, so no reason why PX’s time with FX should be limited or supervised. The risks posed by MX to PX (outlined above) mean that PX’s contact with MX must be supervised in the interim, pending a proper investigation and consideration of all the relevant evidence at the next hearing.

[56]The Court therefore grants an order in the terms requested by the Applicant LA, for the reasons above:(i) I am entirely satisfied on all that I have read that PX lacks capacity to conduct these proceedings, and lacks capacity to make a decision about her residence and contact arrangements, so I make an interim declaration accordingly, and find that PX’s welfare requires me to make urgent decisions regarding her residence and contact arrangements.

(ii) I am entirely satisfied that it is in PX’s best interests that she should return immediately to C1, to avoid any further risk of MX seeking to influence her against FX, or to bolster MX’s unfounded allegations against FX and C1. Given how swiftly MX may have influenced PX at the appointment on 15/4/25, this move cannot wait even until after the weekend. The disappointment to PX of missing the SL New Year festivities is far outweighed by the risk of harm if she remains in MX’s care.

(iii) For the same reasons, I am entirely satisfied that it is in PX’s best interests that her contact with MX should be supervised pending the next hearing, including any telephone and text communication. For practical reasons, MX’s contact must be limited to 2 sessions of 1 hour per week, but if MX finds it too onerous to attend even during the short period pending the next hearing, so be it.

[57]Although PX will no doubt be distressed at being removed suddenly from MX’s care, especially if she can see that it is against MX’s wishes, and MX’s anxiety may transfer onto PX, steps can be taken to mitigate the impact on PX, and I have no doubt that PX will settle quickly at C1 once returned, given how positive she was previously about living there. IT IS DECLARED THAT: (1). PX lacks capacity to litigate these proceedings and to make decisions about residence and contact arrangements. (2). It is in PX’s best interests to reside at C1 and with FX in the holidays, and for that move from MX’s care to be facilitated immediately (at 2.30pm on Friday 2/5/2025, that being the earliest time MX said she could get home with PX), in accordance with the LA’s conveyance plan. (3). It is in PX’s best interests for her contact with MX (direct, and any telephone and text communication) to be supervised, in accordance with the LA’s contact plan, which shall be kept under regular review by the Applicant LA.

[58]I wish to conclude by expressing my considerable gratitude to the lawyers for bringing this case to the court so efficiently, and to MX for engaging with what must have been a difficult hearing for her. I am conscious that she is genuinely desperately worried for PX, even though I have found that her worries are not based on evidence. Finally, I wish to express my personal good wishes to PX for a successful return to C1 and my hope that she settles down quickly.

[59]That is my judgment. HHJ Arthur 7th May 2025