Darlington Borough Council v AW & Ors [2025] EWCOP 33 (T3)

[2025] EWCOP 33 (T3)Case No COP 14276063
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, LondonDate 01/08/2025
WC2A 2LL
Before
MS JUSTICE HENKE
Between
Darlington Borough CouncilApplicantAWRespondentsNorth East and North Cumbrian Integrated Care BoardRespondentDWRespondentIWRespondentTees, Esk and Wear Valleys NHS Foundation TrustRespondent
Stephen Broach KC and Celia Reynolds (instructed by Darlington Borough Council) for ApplicantJoseph O’Brien KC (instructed by EMG Solicitors Limited for Official Solicitor) for the First RespondentSophie Hurst (instructed by Ward Hadaway LLP) for Second RespondentThe Third and Fourth Respondents appearing as Litigants in Person for in personJake Rylatt (instructed by DAC Beachcroft) for Fifth RespondentHearing Hearing date: 22 May 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 22 September 2025 by circulation to the parties or their representatives by e-mail and release to the National Archives..............................MS JUSTICE HENKEThis judgment was delivered in public subject to a transparency order which remains in place. 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 the child, the protected party and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]On 22 May 2025, I dismissed the local authority’s application in the Court of Protection in relation to a young person - AW - on the basis that the evidence before the court was that AW had capacity.

Introduction and Background

[2]AW was born in 2006. She is 18 years of age. DW and IW are her mother and father and the third and fourth respondents in the proceedings. AW is the only child of DW and IW.[3]The applicant local authority has duties to AW under the Care Act 2014. In addition, and with the ICB, it jointly commissions a package of care for AW in accordance with the statutory obligation under Section 117 of the Mental Health Act 1983. The NHS Trust hold responsibility for the provision of healthcare.[4]In February 2020 AW moved secondary schools and reported some bullying within her new school.[5]In November 2020 AW was assaulted by another pupil, receiving a punch to the left side of her head. She attended at Accident & Emergency, was referred for an MRI scan which revealed no abnormalities. However, AW reported continuing headaches and double vision. She did not return to her school. AW became withdrawn and less likely to engage with peers, engaged in self-harming behaviours, expressed suicidal ideation, made attempts to take her life and displayed disordered eating. AW consistently expressed a wish to end her life before she reached the age of 18 as a way of avoiding adulthood.[6]Prior to the commencement of the proceedings in 2024, AW was admitted to hospital in January 2022 due to food refusal and then due to a paracetamol overdose. AW was detained under s. 2 and s. 3 of MHA 1983, and subsequently discharged home on 27 June 2022. There were further incidents of running away, self-harm and overdose, some of which necessitated hospital admission[7]On the 3 April 2024 AW was discharged to a short-term placement but absconded on the same day. Police located AW and returned her to the placement. AW reported that she had consumed an unknown substance and appeared to be hallucinating. AW was readmitted to the hospital. She was discharged on the 8April 2024 and returned to her short term placement.[8]On the 15 April 2024 AW was detained by police under Section 136 of the Mental Health Act 1983 when she was found trespassing on a railway line and attempting to jump off the railway bridge.[9]On the 16 April 2024 assessments concluded that AW did not meet the criteria for detention under the MHA 1983 and AW was again discharged to her short term placement. The same day AW left that placement and made her way to a train track. On 17 April 2024, AW was arrested for trespassing on railway lines and detained in custody by the police.[10]On the 18 April 2024 AW was admitted to hospital under the MHA 1983 suffering emotional dysregulation. An assessment of AW’s capacity in May 2024 concluded that AW had capacity to make decisions regarding her residence, care and support. A Mental Health Tribunal upheld AW’s detention under MHA 1983 until 2 May 2024 at 12 noon to allow time for the local authority to have the correct measures in place for AW upon discharge.[11]AW was discharged to a new placement where she was supported by staff from M Agency. AW was provided with 2:1 support 24 hours seven days a week. She was the only resident.[12]On 1 May 2024 the applicant applied for permission to invoke the inherent jurisdiction and if granted authorisation to deprive her of her liberty in the following ways; (1) Until such time as AW turns 18 the Local Authority continues to seek the court’s authorisation to deprive her of her liberty in the following ways: a) The external doors and windows of the placement to be locked and AW is not able to leave of her own free will; b) There are at least two members of staff on a 2:1 ratio at all times; c) AW’s time outside of the placement is supervised by staff on a 2:1 ratio at all times; d) When travelling in a car AW is supervised by a minimum of 2 staff members. e) Should AW abscond or attempt to abscond from the placement, the use of reasonable force/restraint is authorised to ensure that she is prevented from leaving and / or returned to the property.[13]At the time of the application under the inherent jurisdiction, AW was a child within the meaning of the Children Act 1989 – S105 Children Act 1989. As a child she was accommodated by the applicant local authority under S20 Children Act 1989; both her parents consenting to her accommodation. AW did not seek to return their care and had previously been considered capable of consenting to her own accommodation which she had done on 3 April 2024.[14]The local authority application came before the court on 1st May 2024 and was heard by Mr Samuels KC sitting as a Deputy High Court Judge. He considered that the case should be adjourned to the following day to allow for the appointment of a children’s guardian for AW. The local authority was ordered to file a document setting out the following information:a. details of the proposed unregulated placement,b. the training and supervision of the staff,c. the experience of the staff in dealing with a child with significant vulnerabilities.[15]The application came before Mr Justice Moor on 2 May 2024. Mr Justice Moor made the order sought for a short period. The case came before me on 3 June 2024. By that time although AW was said to be settled, she was still self-harming and threatening to kill herself. The court declared that the restrictions on AW’s liberty, approved by the court at the last hearing, continued to be in her best interests and authorised their continuation until 23.59 on 25 June 2024. Further, I approved the instruction of Dr Ursula Cawthorne, to undertake a psychological assessment and a capacity assessment of AW. This was to be filed by 18 June 2024. The court further ordered, by consent, that a Clinician from the relevant hospital Trust should undertake a capacity assessment of AW by 18 June 2024 addressing:a. Capacity to make decisions around(i) care and support;(ii) accommodation;(iii) conducting these proceedings.b. Whether AW has fluctuating capacity.c. Whether AW’s diagnoses of PTSD and ASD impact her decision making and her capacity.[16]At the hearing on 3 June the applicant asked me to join the Hospital Trust and the ICB as parties to the proceedings. At that hearing I did not consider joinder necessary. However, I indicated that this would be kept under review and reconsidered at the next hearing on 25th June 2024.The Trust and ICB were invited to attend that hearing. The applicant was ordered to serve the s117 Aftercare Plan for AW and an Updating Statement addressing what the plan for AW’s care is going to be, how that is going to be implemented and whether the local authority intends to issue any proceedings in the Court of Protection.[17]The expert evidence before me as at 25 June 2024 was from a Consultant Clinical Psychologist at the Hospital Trust:a. AW did not have capacity to make decisions around her care and support, nor around her accommodation, as follows: Assessments of capacity are time and act specific, and there are day to day simple decisions about her care and treatment that AW will be able to make, and she should be afforded the opportunity to do this to promote her autonomy. However in respect of the overall package amounting to her care, support and accommodation, including restrictions on her liberty, AW lacks capacity to make the decisions based on a lack of understanding and inability to weigh in the balance. This is not limited to times of extreme emotional dysregulation but in fact applies even when relatively engaging and settled.b. AW did not have capacity to conduct the current proceedings.c. AW’s capacity to be fluctuating.[18]At the hearing on 25 June 2024 having heard submissions from all parties and by consent, I continued to authorise the deprivation of AW’s liberty. By that hearing I had expert evidence confirming that AW has fluctuating capacity to litigate at best and is likely on the balance of probabilities to lack capacity, the court considers that AW is a protected party. I therefore directed the local authority to file any application they wished to make in relation to AW in the Court of Protection by 2 July and invited the Official Solicitor to act as her litigation friend.[19]On 9 July 2024 the applicant local authority issued an application in the Court of Protection.[20]On the 16 July 2024, the Court of Protection made the first order authorising AW’s deprivation of liberty and those orders have continued to be made. Prior to the orders made by the Court of Protection AW’s arrangements for her accommodation and care which amounted to a deprivation of liberty were authorised by the High Court invoking the inherent jurisdiction.[21]On 19 July 2024 Dr Cawthorne, Consultant Clinical Psychologist and Independent Court-Appointed Experthad filed an interim report. They considered that AW has fluctuating capacity in the areas of care and support, accommodation and conducting the current proceedings. They stated that: In my view, more assessment is needed to establish the specific details of her neurodevelopmental vulnerabilities. She then needs to have a greater understanding of how her nervous system and brain work and how environments impact on that as well as understanding her trauma symptoms. Development on self-management will lead to a greater sense of control.[22]With respect to consideration of the diagnoses of PTSD and ASD, Dr Cawthorne stated: In my opinion, our understanding of AW’s neurodiversity needs to be considered in more detail. I will need more time to assess whether I agree with the diagnosis of Autistic Spectrum Disorder. At this stage I am not sure whether her development and process entirely fits that diagnosis. I would like to consider whether she has other difficulties including dyspraxia and sensory processing disorder[23]On 22 July 2024 AW was assessed as having capacity to enter into a tenancy agreement and sign the tenancy.[24]On the 10 November 2024 an ambulance was called to AW’s property due to AW being found in an unresponsive state. AW was admitted to Hospital having overdosed. AW had left a note and an hour of video recordings to say goodbye. AW was discharged from hospital. AW revealed that she had been secreting the medication since August 2024 with the intention to end her life on the 10 November, the anniversary of the assault.[25]In November and December 2024, issues arose in relation to AW’s compliance with her medication regime. AW had refused to take her medication for the management of her mental health but also the medication for her acne and iron deficiency. At the same time there had been a breakdown in the relationship between M Agency’s staff.[26]As a result, the ICB and the local authority (the commissioners of AW’s care) determined that an alternative provider of care should be identified and sourced. The concerns in relation to M Agency included inconsistencies with staff, staff’s knowledge around medication and staff waking up AW from her sleep. A new provider was identified and in February 2025 it was anticipated that the care would be fully provided by C Agency by the 10 March 2025. That transfer did take place, but concerns arose about the ability of C Agency staff to keep AW safe and whether they were trained in restraint techniques.[27]The matter was restored for hearing before the court on the 15 and 16 April 2025. The order from that hearing records that on the 5 April 2025 AW was taken to hospital as there were concerns that AW had not eaten for some time. AW was discharged back to her placement on the 7April 2025 after her bloods had been checked and there were no signs of malnutrition.[28]On the 11 April 2025 AW was admitted to Hospital. The admission recorded that this was due to decreased oral intake over the previous 10 days and tachycardia. (The order of the 16 April also records that AW had not eaten for nine days). AW was transferred to the gastroenterology ward. The possibility of the placement of nasogastric tube was discussed with AW as this would save her life if she did not eat. AW was not in agreement with this. A mental capacity assessment for accommodation in hospital and a further assessment in relation to the insertion of the NG tube were completed. AW was considered to lack capacity for both these decisions. The hospital granted an urgent authorisation and subsequently made a request for a standard authorisation. The urgent authorisation lasted until the 19 April 2025, with an additional seven days given the request for the standard authorisation. In relation to the insertion of an NG tube, a plan for the NG tube insertion was made but due to the level of restrain that would be required, it was determined that it was not in AW’s best interests at that time and may cause more harm than good.[29]On 16 April 2025 I made an order under Section 48 MCA 2005 which included a recording that there was reason to believe that AW lacked capacity to conduct these proceedings, to make decisions on her residence, care, and face to face contact with SB (a friend) and made a welfare order that it was in AW’s best interests to reside at a new placement and for AW to receive care and support as arranged by the local authority. I made further welfare orders authorising AW’s arrangements for her care which amounted to a deprivation of liberty in the circumstances set out in paragraph 3 of the Order. These arrangements included the external doors and windows were to be locked and AW was not free to leave her placement; AW was supervised within and outside of the placement (save when in the bathroom) using a staff ratio 2:1 and the use of reasonable force and restraint to prevent harm to herself or others and also the use of such force as was necessary to prevent her leaving the placement and/or to facilitate returning her there.[30]By the 22 April 2025 the gastroenterologist concluded that an acute ward was not the best place for AW and that AW should be managed with enhanced support in the community in a familiar environment. An NG tube was likely to be counterproductive as AW’s reduced intake was psychological. On the 28 April 2025 AW was discharged back to her placement where she was to be supervised and deprived of her liberty as set out in my order of 16 April 2025.[31]On the 7 May 2025 AW’s solicitor visited AW. The note captures that:(a) AW stated that she had started to eat again and had done so before leaving hospital.(b) AW asserted that she was struggling with her mental health, her eating disorder and her mobility was an issue.(c) That her staffing was “fucked” that she had two members of staff and did not want to work with them.(d) AW had been admitted to A&E. She had been there for 10 hours with stomach pains and sickness.(e) Comments made by her care staff had “triggered her in a big way around her eating disorder”. AW said she had had her mental health breakdown over this.(f) AW complained that a staff member had fallen asleep while she was in hospital.(g) AW said she had visited the cinema the previous day and that she had eaten a Subway salad, protein bar, popcorn and a slushy.(h) AW described some overload since leaving hospital primarily around the appointments she was having.(i) In relation to Dr Ince’s report, AW was not able to focus on that. AW was curious about the report and agreed that her solicitor would go through the report in sections at a time.

Dr Ince’s Evidence

[32]AW’s capacity has been a central issue before this court. On 24 August 2024 I gave permission to the parties to jointly instruct Dr Christopher Ince, Consultant Psychiatrist to report to the court. The timescale in which he was to report was extended to December 2024. However, his reports were not filed on time as directed. In March 2025 he gave the court his reasons for the delay which were personal and which do not, I consider, need to be recited in this judgment. Whilst this court has every sympathy with Dr Ince on one level, in my judgment I cannot simply ignore the delay it caused to the proceedings; resulting as it did in a four-month delay and a final hearing having to be re-listed at least once. In future this court would prefer to be told of such problems at the earliest opportunity so that it may take proactive steps, including instructing an alternative expert. This court is grateful to Dr Ince and his evidence when it eventually came. His written and oral evidence has been central to my decision-making. It is authoritative and is clearly based on huge expertise.

Dr Ince’s Written Evidence

[33]Dr Ince’s substantive report is dated the 14 April 2025. Dr Ince saw AW on three occasions the 29 October 2024, 7 March 2025 and 21 March 2025. All interviews took place at AW’s placement. The interview on 21 March 2025 took place with AW having the support, at her request, of her support worker. Dr Ince noted that “Throughout the three interviews, AW displayed a clear understanding of the Court of Protection proceedings and she spoke eloquently and at length.”[34]In summary, and in relation to the functional test set out in Section 3 of the MCA 2005 Dr Ince concluded as follows:a. AW has capacity to conduct the proceedings. Dr Ince applies the presumption of capacity and notes that on the three occasions he assessed AW she was able to understand, retain and use and weigh the relevant information.b. AW has capacity to make decisions on her residence. The presumption of capacity is not rebutted.c. In relation to care, AW is able to understand and retain the relevant information. However, in response to specific triggers, AW was unable effectively to use and weigh the relevant information. However, those periods, if she is supported, should be broadly avoidable or if they do occur, will be short lived. This is not a pass on a fluctuating capacity. However, Dr Ince asserted that there is on an “interim basis” sufficient evidence to rebut the presumption of capacity as a consequence of contextually predictable episodes in which AW displays executive function secondary to her trauma and neurodevelopment disorders.d. In relation to contact as a global and general decision, AW’s capacity is not absent. However in moments of emotional arousal, mistrust or relational stress her ability to appraise information is impaired and episodically disrupted. On this decision, AW’s presentation is consistent with trauma related executive disfunction and the known difficulties that autistic individuals may experience when navigating relational ambiguity, safeguarding intervention and emotionally nuanced social context. “It would be a categorical error to interpret her minimisation or brief responses as a lack of capacity per say; rather, these must be seen as context and communication patterns that require sensitive interpretation.”e. In relation to contact with SP and NY, Dr Ince concluded that AW lacks capacity to make the decision on contact with both.f. AW has capacity to engage in sexual relations.[35]Dr Ince concluded that AW has a confirmed diagnosis of ASD. In relation to this diagnosis AW’s presentation is characterised by sensory sensitivity, cognitive rigidity, marked difficulties with transitions and relational boundaries and atypical executive function. There is evidence of difficulties with interoceptive awareness, a concrete thinking style and emotional processing deficits all consistent with the autistic profile. AW also meets the criteria for Complex Post Traumatic Stress Disorder. The experiences which have led to this traumatic stress disorder results in an affective instability, a negative self-concept, relational hypervigilance and a pattern of maladaptive coping strategies to include self-injury, disordered eating and social withdrawal. AW also presents with disordered eating behaviours, most closely aligned with Atypical Anorexia Nervosa.[36]Dr Ince concluded that overall, AW presents with a constellation of interacting difficulties, to include Autism, developmental trauma, effective instability and relational risks. The conditions do not exist in isolation and her presentation is not adequately captured by one diagnostic label. AW’s functional profile varies significantly depending on emotional state, environmental stability, relational safety and perceived autonomy. These factors form the causative nexus between the diagnostic and the functional test.[37]Dr Ince provided a further report on the 6 May 2025 responding to a significant number of questions of clarification which had been raised. In summary:a. Dr Ince repeated his findings that AW lacked capacity to conduct the proceedings but if subject matter capacity is compromised (such as on care) then AW may not have capacity and this would be caused by episodes of dysregulation.b. AW’s starvation has significant impact on cognitive functioning and emotional regulation. The cumulative effect of proposed nutritional deprivation likely impaired her ability to use and weigh relevant information effectively during periods of acute malnutrition. However, AW’s decision not to eat or take nutrition were rooted in authentic, consensually rational decision making informed by lived experience. The evidence suggests that this decision reflects a capacity as to decision making.c. There are periods when AW has capacity to make decisions on care and support and contact and periods when she does not. These periods are not random but contextually predictable arising in specific identifiable circumstances such as relational rupture and perceived threats to her autonomy.d. Anticipatory declarations could be operationalised effectively for AW provided that the care team is furnished with a clear, objective criteria and is supported by ongoing training to maintain vigilance and procedural accuracy.

The Relevant Legal Framework

[38]The MCA 2005 sets out the statutory framework for dealing with capacity with the important fundamental principle enshrined in s1(2) that “a person must be assumed to have capacity unless it is established that he lacks capacity.” Sections 1(3) – (4), MCA 2005 provide further general principles relevant in considering the question of an individual’s capacity:
“(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”
[39]Section 2(1) MCA 2005 defines a person who lacks capacity as “… 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.” 7. Section 3(1) MCA provides that for the purpose of section 2(1), a person is “unable to make a decision” if they are unable to:a. Understand the information relevant to the decision;b. Retain that information;c. Use or weigh that information as part of the process of making the decision;d. Communicate that decision.[40]The Court of Appeal helpfully summarised the law relating to capacity, and the sequential steps to an assessment, in a recent judgment, Kenneth Johnston v Financial Ombudsman Service [2025] EWCA Civ 551. At §§38-39: “38. The correct approach to be adopted by a court when assessing whether a person lacks capacity was considered by the Supreme Court in A Local Authority v JB [2021] UKSC 52, [2022] AC 1322. Although the factual context was different, the approach is applicable across all areas of capacity. At paragraphs 66 to 79, Lord Stephens JSC, with whom the other Justices agreed, said: "66. Section 2(1) requires the court to address two questions. "66. Section 2(1) requires the court to address two questions. 67. The first question is whether P is unable to make a decision for himself in relation to the matter. As McFarlane LJ stated in York City Council v C [2013] EWCA Civ 478 at para 37 , "the court is charged in section 2(1), in relation to 'a matter', with evaluating an individual's capacity 'to make a decision for himself in relation to the matter'." The focus is on the capacity to make a specific decision so that the determination of capacity under Part 1 of the MCA 2005 is decision-specific …. 68. As the assessment of capacity is decision-specific, the court is required to identify the correct formulation of "the matter" in respect of which it must evaluate whether P is unable to make a decision for himself: see York City Council v C at paras 19, 35 and 40. 69. The correct formulation of "the matter" then leads to a requirement to identify "the information relevant to the decision" under section 3(1)(a) which includes information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision: see section 3(4). 70. I consider, and the Court of Appeal in this case held at para 48, that the court must identify the information relevant to the decision "within the specific factual context of the case": see also York City Council v C at para 39 […] 75. On the other hand, there should be a practical limit on what needs to be envisaged as the "reasonably foreseeable consequences" of a decision, or of failing to make a decision, within section 3(4) of the MCA …. To require a potentially incapacitous person to be capable of envisaging more consequences than persons of full capacity would derogate from personal autonomy. […] 78. If the court concludes that P is unable to make a decision for himself in relation to the matter, then the second question that the court is required to under section 2(1) is whether that inability is "because of" an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P's inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P's mind or brain. 79. The two questions under section 2(1) are to be approached in that sequence." 39. There are three further relevant general principles, identified in my judgment in A Local Authority v P [2018] EWCOP 10 at paragraph 15, cited by Lewis LJ in his judgment in Cannon v Bar Standards Board [2023] EWCA Civ 278 (considered below). First: "Capacity is both issue-specific and time-specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question the person lacks capacity in question." Secondly, "In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently instructed expert will be likely to be of very considerable importance, but as Charles J observed in A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44 , "it is important to remember(i) that the roles of the court and the expert are distinct and(ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision." Thirdly, "The court must avoid the "protection imperative" – the danger that the court, that all professionals involved with treating and helping P, may feel drawn towards an outcome that is more protective of her and fail to carry out an assessment of capacity that is detached and objective: CC v KK [2012] EWHC 2136 (COP)."[41]Sections 3(2) – (4), MCA 2005 outlines further guidance on the application of the ‘functional test’ in section 3(1) as follows:
“(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is unable to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as unable to make that decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of: (a) deciding one way or another; or (b) failing to make the decision.”
[42]Section 4(3) MCA 2005 requires the person making the best interests determination to consider “whether it is likely that [P] will at some time have capacity in relation to the matter in question” and if so when. By section 4(6), the person making the best interests determination must consider (so far as is ascertainable) “[P]’s past and present wishes and feelings … (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.”[43]The material parts of sections 5 and 6 MCA 2005 provide:
“5. (1) If a person (“D) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if – (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes – (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best interests for the act to be done. (2) D does not incur any liability in relation to the act that he would not have incurred if P – (a) had had capacity to consent in relation to the matter, and (b) had consented to D’s doing the act… 6. (1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied. (2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P. (3) The second is that the act is a proportionate response to – (a) the likelihood of P’s suffering harm, and (b) the seriousness of that harm. (4) For the purposes of this section D restrains P if he – (a) uses, or threatens to use, force to secure the doing of an act which P resists, or (b) restricts P’s liberty of movement whether or not P resists…” (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes – (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best interests for the act to be done. (a) the likelihood of P’s suffering harm, and (b) the seriousness of that harm.

(b) restricts P’s liberty of movement whether or not P resists…”

[44]Section 15 MCA 2005 provides power for the court to make declarations as follows: "(1) 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;(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. (2) “Act” includes an omission and a course of conduct.”[45]In Re JB [2021] UKSC 35, Lord Stephens observed in respect of fluctuating capacity (at §64):
“Capacity may fluctuate over time, so that a person may have capacity at one time but not at another. The “material time” within section 2(1) is decision-specific (…). The question is whether P has capacity to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward-looking assessment made at the date of the hearing. However, if there is evidence of fluctuating capacity then that will be an appropriate qualification to the assessment.”
[46]In Cheshire West and Chester Council v PWK [2019] EWCOP 57, Sir Mark Hedley referenced and relied on his earlier decision in A, B, & C v X, Y, and Z [2012] EWHC 2400 (COP) wherein he distinguished isolated decision-making with decision-making within the overall context of managing one’s own affairs:
“the management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent.”
At §25, Sir Mark Hadley concluded that it was appropriate to take a ‘longitudinal perspective’ and observed “It is the unpredictability of that anxiety and the seriousness and breadth of its impact which is decisive in this case in overturning the legal presumption of capacity.”[47]In Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam) (“DN”) the court concluded that it could make anticipatory declarations as to DN’s capacity to make decisions under sections 15 and 16, MCA 2005, to cover occasions when he has ‘meltdowns’ and is at that point unable to make capacitous decisions. In DN, all the parties accepted that, as a matter of fact, DN would, on balance, lose capacity to weigh decisions about his care and residence when those meltdowns occurred. In reaching his decision, Cobb J concluded:
“It seems to me that the outcome of an anticipatory declaration would provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability.”
[48]In A Local Authority v PG & Ors [2023] EWCOP 9, Lieven J identified a variety of challenges posed by PG’s case (§29):
“Firstly, the evidence suggests that she does at times have capacity within the terms of s. 3, but at other times she probably does not. Secondly, there is close correlation between times when she may not have capacity and the making of what would plainly be considered unwise decisions. Thirdly, there is also some correlation between her making of unwise decisions and her being intoxicated.” 17. In adopting a “longitudinal approach”, Lieven J made the following observations: “36. I am really faced with a choice between making orders that follow the line of Sir Mark Hedley in PWK, and thus taking a "longitudinal view" of PG's presentation, and which closely relates to Newton J's "macro" decisions; or that of Cobb J in DN and making anticipatory declarations in respect of when PG has the equivalent of a "meltdown"… 37. In deciding this issue I must have regard to the importance of making orders that are workable and reflect the reality of PG's "lived experience", both for the sake of PG and those caring for her… 38. My concern about making an anticipatory declaration in a case such as this, is that it would in practice be unworkable for those caring for PG. Unlike DN, PG does not have capacity in relation to decisions around her care, both when at home and in the community. Although when calm, she does at times make capacitous decisions within the meaning of section 3(1), I accept Dr King's evidence that even when at home, when she becomes anxious and emotionally dysregulated, she loses capacity. This seems to me to be a more fundamental part of her general presentation than was the case with DN.”
[49]In Leicestershire CC v P and Another (Capacity: Anticipatory Declaration) [2024] EWCOP 53, the court concluded that it had jurisdiction to make an anticipatory declaration under s. 15(1)(c), MCA 2005 (at §137(4)), but declined to make such a declaration on the facts of that case. At §137(6), Theis J set out those factors a court will need to consider before exercising the jurisdiction under s.

(c) to make an anticipatory declaration:

“(a) Whether there are other ways in managing the situation, for example whether s5 MCA can be utilised. As Lady Hale made clear in N v A CCG [2017] UKSC 22 at [38]: “… Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P's best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the "deprivation of liberty safeguards" in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court”
This provision is not limited to only address emergency situations but there are clearly limits. (b) The need to guard against any suggestion that P's autonomy and ability to make unwise, but capacitous decisions is at risk or any suggestion that the court is making overtly protective decisions. (c) To carefully consider the declaration being sought, and whether the evidence establishes with sufficient clarity the circumstances in which P may lack capacity and in the event that P does the circumstances in which contingent best interest decisions would need to be made. This is to guard against the risk that if the facts on the ground were analysed contemporaneously the court may reach a different conclusion.” “… Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P's best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the "deprivation of liberty safeguards" in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court” In concluding that she should not make an anticipatory declaration in that case, Theis J made the following observations (at §138):
“(1) There remains considerable uncertainty on the evidence about how it is possible to establish when P has dissociated to the extent where she loses capacity to make decisions about her care and contact with others… There is reference in the evidence to looking at when she acts in an unusual way, in a heightened state of arousal or puts herself at risk, however that could cover a myriad of different situations and it is recognised would be difficult for domiciliary care workers to assess in circumstances where P’s Article 5 and 8 rights are affected. (2) […] On the evidence, whilst recognising the seriousness of each incident in the past, there has been a significant reduction in the number of such instances in part due to the consistency of the work being undertaken by CDS […] (3) P is very clear that she wishes to be protected from such risks and that her care package should include a crisis plan that covers this situation, including taking steps that would, for example, prevent her from disabling the internet and to follow her in the event she left the property […] (6) P remains protected by the existing statutory framework in s5 and 6 MCA that give general authority to those caring for P who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. Using this framework will have the advantage that decisions are taken contemporaneously both as to capacity and best interests, having up to date information on matters such as P’s wishes and are more appropriate to guard against such infrequent occasions as in this case. I recognise that s5 and 6 may not have been intended to provide a complete catch all means by which carers can being guarded against happen relatively infrequently so need to be considered in the context of an extended time frame. I fully take into account the submission that by making an anticipatory declaration it could provide more certainty for carers but there is nothing preventing the crisis plan including the same information, whether or not an anticipatory declaration is made, as, in effect, the carers or others are going to need to be making the same capacity assessment whether a declaration is made or not.”
[50]In Oldham MBC v KZ and others [2024] EWCOP 72 (T3), Theis J concluded that an anticipatory order was appropriate in that case because, like DN (at §84), “the evidence here demonstrates it is clear to those who care for KZ when he becomes dysregulated so that he is likely to lose capacity. The making of an anticipatory declaration would provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability.”

The Hearing Before Me

[51]I am grateful to all who appeared before me at the hearing on 22 May 2025 and those who have represented the parties at the earlier hearings that go back to the summer of 2024 when matters were them considered under the Inherent Jurisdiction relevant to children. In this judgment, I cannot mention them all, but they should know that their expertise and skill has been appreciated by me in what has been a complex case with a protracted history spanning two jurisdictions - that relevant to children and that relevant to adults who lack capacity.[52]The representation before me on 22 May 2025 was of the highest order. I have had the benefit of experienced counsel who have facilitated my digest of the law and focused decision making. I must also pay tribute to AW’s parents who have attended every hearing before me under the Inherent Jurisdiction and each of those in the Court of Protection. They have self-represented throughout. They have shown an in-depth knowledge of the papers in this case and have been as able, as those represented, to apply the relevant law to the facts of the case to enable me to make the best decisions I can for their daughter. They are understandably worried for their daughter and have advocated for her; sometimes agreeing with the professionals’ view and sometimes disagreeing. Finally, but no means least I should record that when she has wished to do so AW has joined the hearings before me when she has been able to do so and when she has wanted to participate. By the time of the final hearing before me, AW wanted to be recognised as an adult with capacity free to make her own choices.[53]On 22 May 2025 Dr Ince gave evidence before the court. He was called on behalf of the Official Solicitor who was still representing AW and cross examined by the other parties.[54]At the conclusion of his evidence there was agreement between all parties that the court ought not exercise its power to make anticipatory declarations to cover a situation where AW loses capacity in a relevant domain in the future. Dr. Ince’s evidence did not establish with sufficient clarity the circumstances in which AW may lack capacity, nor the circumstances in which contingent best interest decisions will need to be made. There was further agreement between all parties that AW’s continuing risks can be appropriately managed under the existing statutory framework in ss 5. and 6 MCA 2005, with the ‘backstop’ of an urgent application to the court available at all times if needed. The local authority was particularly aware of its ongoing obligations.

My Decision with My Reasons

[55]On 22 May 2025 I gave a brief oral judgment setting out that I agreed with the partes’ assessment of the evidence and the conclusions that they drew from it.[56]Having heard Dr Ince’s evidence it is plain that AW does have capacity in all relevant domains, namely:a. AW has capacity to litigate the current proceedings;b. AW has capacity to make decisions about her accommodation;c. AW does not lack capacity on a global or permanent basis to make decisions about her care and support,d. AW has capacity to make decisions about contact with otherse. AW has capacity to engage in sexual relations; andf. AW has capacity to make decisions in respect of her treatment and medication.[57]In this case I have jurisdiction to make anticipatory declarations, but I decline to do so. Sections 5 and 6 MCA can be used to manage the circumstances of this case and any future crisis that AW may suffer. Whilst AW has put herself at risk in the past, I have reminded myself that I must guard against any suggestion that unwise decision-making is analogous to decision-making without capacity. Capacitous adults may make wise or unwise decisions. The point is that they have the capacity to choose and make informed decisions however unwise. I have reminded myself that I must guard against the protection imperative and paternalistic decision-making. I must respect AW’s autonomy. I have carefully considered whether the evidence establishes with sufficient clarity the circumstances in which AW may lack capacity and in the event that AW does, the circumstances in which contingent best interest decisions would need to be made. I have concluded based on the evidence as a whole, of which Dr Ince’s evidence is a significant part, that the evidence in this case does not provide that sufficient clarity. Accordingly, I decline to make anticipatory declarations which, on the evidence, would not be practical to implement.[58]In the circumstances I dismissed the applicant’s application to the Court of Protection.[59]AW was present for the final hearing and is aware of my decision. She is an intelligent young person who was delighted to have her capacity and thus her autonomy recognised. She remained willing to accept the support offered to her by the statutory agencies and those statutory agencies remained committed to her. AW’s parents were in agreement with my decision-making.[60]I have written this judgment to enable AW to have a brief record of court proceedings which were before the court for a year. During that time AW was deprived of her liberty first under the Inherent Jurisdiction relating to children (s.100 Children Act 1989) and later in the Court of Protection wherein it was declared in the interim that she lacked capacity in the relevant domains. However, once the expert evidence had been finalised and tested before the court, it became apparent that in her case the evidence did not support the presumption of capacity being displaced. AW is an adult now with capacity, able to make good and bad choices about her own future. I wished her well on 22 May 2025 and I do so again as I end this judgment.[61]That is my judgment.