London Borough of Newham v BS & Anor [2003] EWHC 1909 (Fam)

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.Case No FD0Q2P02034[2003] EWHC 1909 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate 31 July 2003
Before
THE HONOURABLE MR JUSTICE WALL
Between
THE LONDON BOROUGH OF NEWHAMApplicantMr BSRespondentSRespondent(an adult represented by her Litigation Friend, the Official Solicitor)RespondentTHE LONDON BOROUGH OF NEWHAMApplicantMr BSS(an adult represented by her Litigation Friend, the Official Solicitor)Respondents
Ms Sally Bradley (instructed by Legal Services Dept) for London Borough of NewhamMs Sarah Forster (instructed by Hereward & Foster Solicitors) for first respondentMs Fenella Morris (instructed by the Official Solicitor) for second respondentHearing dates 21 —24 July 2003
Judgment

Introduction

[1]This case concerns a young woman (S), who is now 33. S has a moderate/severe learning disability, and also suffers from atypical autism and epilepsy. “Atypical” in this context means, as I understand it, that she displays some but not all the symptoms of autism. Her epilepsy is controlled by medication. The aetiology of her condition is unclear, but may result from a febrile illness at the age of 19 months. It is, however, common ground that, in the words of Dr C, the consultant psychiatrist instructed by the Official Solicitor to comment on S’s capacity, her mental impairment ……..is characterised by significantly sub-average intellectual functioning and poor socio-economic skills. She has a poor attention span and her level of comprehension and cognitive function is extremely limited. Her understanding of events is dependent on contextual and situational cues. S also has no concept of time nor has the ability of recall of events that may have occurred in the past….. S is not in a position to express her views as a consequence of limitation in her communication skills and learning disability, which is a permanent condition. As such, she is unable to comprehend and retain any information material to decisions about her future. Neither is she capable of evaluating the positive and negative aspects that should underpin such a choice. In short, S does not have the capacity to decide where she should live and who should provide care for her.[2]S’s mother died in April 1995, and since that date her father (Mr S, who is now rising 66) has been her sole carer, assisted by a number of support workers mostly arranged privately. However, on 9 November 2002 there was an incident (in which it is alleged Mr S struck S, and to which I shall return) which led to the local authority first instituting adult protection measures and then, after it had taken legal advice, to a without notice application to the court on 20 December 2002. On that day, Johnson J, exercising the court’s inherent jurisdiction, made a number of interim declarations rendering it lawful for the local authority (inter alia)(1) to place S in a residential placement for adults with learning disabilities;(2) to prohibit Mr S from removing her from that placement; and(3) to limit contact between S and Mr S to supervised contact. The Official Solicitor was invited to act for S and Mr S was given liberty to apply to vary or discharge the order.[3]As a consequence of the order S was removed from Mr S’s address, and placed in a specialist refuge for women with learning disabilities. This was a temporary placement, albeit one able to accommodate S for the duration of these proceedings. The evidence suggests that S has settled well in this placement.[4]On 15 January 2003, at a hearing at which Mr S was represented, Hughes J continued the interim declarations made by Johnson J, provided for Mr S’s contact with S and gave a number of directions, including the appointment of the Official Solicitor as litigation friend; the joint instruction of a consultant psychiatrist to advise on S’s capacity to make decisions as to where she should live and as to contact with Mr S; and the joint instruction of an independent social worker to advise as to her best interests in relation to residence and contact with Mr S. He also laid down a timetable, as a result of which the hearing of the local authority’s claim began before me on 21 July2003.[5]The relief sought by the local authority is set out in a detailed draft order prepared by the Official Solicitor, a copy of which is annexed to this judgment. In essence it seeks a declaration that S lacks the capacity to decide where she should live and who should provide her with care. It seeks consequential declarations that it is lawful, as being in her best interests, for her to reside at accommodation arranged for her by the local authority. It also seeks a declaration that S lacks the capacity to decide whether to have contact with her father, and upon the nature and extent of that contact, together with a consequential direction that it is in her best interests for contact with her father to be agreed with the local authority in accordance with the detailed schedule attached to the order.[6]The local authority’s final plan for S’s accommodation only crystallised shortly before the start of the hearing on 21 July. It is, however, that she should live in a recently renovated house in the borough, which is designed to accommodate up to 8 mentally impaired individuals of both sexes and from multi-cultural backgrounds (S’s background is Afro-Caribbean). The property is due to open on 5 August 2003. It is relatively close to Mr S’s home and the day centre, which S attends on a daily basis, is easily accessible. I was told that interviews are currently being undertaken for staff; but the company which is to run the home is well known to the local authority and successfully operates several other homes in the area. There will be a mixed gender staff group recruited from different ethnic community groups. Three members of staff will be on duty from 7.00am to l0.00pm, and a waking member of staff will be on duty all night. Staffing numbers can be increased if individual residents require higher levels of support. There will be a varied leisure programme, and residents will be encouraged to access activities in the community. Contacts with family and friends will be facilitated as agreed.[7]The independent social worker instructed by the parties (Mr O’M) visited the home on 21 July 2003. He subsequently both wrote a short report and gave evidence to me about it. He was entirely satisfied that it would be suitable for S and would meet her needs. That view was endorsed by Dr C. The local authority’s plan to place S in this setting thus has the support of all the relevant professional witnesses in the case and is endorsed by the Official Solicitor on S’s behalf.[8]Mr S opposes the relief sought by the local authority. His case is that S should return to live with him. He is her father and responsible for her. He has cared for her since her mother died. He has been able to make appropriate arrangements for her care. There is, accordingly, in his view, no need for the state, in the form of the local authority, to intervene, and it should not be permitted to do so. His primary position, accordingly, is that the interim declarations should be discharged, and the proceedings dismissed.

The law

[9]Before dealing with the merits it is, I think, necessary to examine the applicable law. The case is an example of a local authority inviting the High Court to exercise its inherent jurisdiction to determine the best interests of mentally impaired adults. This follows in particular the identification of a lacuna in the mental health legislation by the Court of Appeal in Re F (Adult: Court’s Jurisdiction) [2000] 2 FLR 512 (hereinafter identified as Re F (No.2).[10]Thus although Dr C in her report described S as suffering from a severe mental impairment within the context of the Mental Health Act 1983, this is not strictly accurate. The reason why a person such as S does not come within the statutory definition of “mental impairment” contained within section 1(2) of the Mental Health Act 1983 (the Act), and thus qualify for guardianship, is because mental impairment is defined in the Act as: …. A state of arrested or incomplete development of mind (not amounting to a mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned (emphasis supplied).[11]S does not fall into this definition, Whilst she sometimes displays an element of aggression, the only example of “seriously irresponsible conduct” on S’s part identified by Miss Forster on behalf of Mr S was her total lack of road sense and a tendency to rush into the road without looking. It is plain from Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192 (Re F No 1)) and the citations within it from Hansard, from the Law Commission Report Mental Incapacity (1995Law Comm No 231) and from Hale J in the 4th edition of Mental Health Law (1996) that such conduct does not come within the definition. It should be noted that Re F (No 1) was the local authority’s attempt, in the same case, to use guardianship as opposed to the exercise of the inherent jurisdiction approved in Re F (No 2) as a means of protecting and caring for F.[12]I am quite satisfied that the instant case falls fair and square within the principles set out in Re F (No 2).In that case, there was a real risk of harm to a mentally incapable 18 year old if she was returned to her parents’ care following the withdrawal of their consent to her living in local authority accommodation for those with mental handicap when she reached the age of 18. The Court of Appeal dismissed an appeal from Johnson J, who had held that he had jurisdiction to grant declaratory relief. The arrangements for F’s care were subsequently resolved by agreement.[13]It is equally clear to me, moreover, that, unlike care proceedings under the Children Act 1989, the exercise of the jurisdiction over mentally incapable adults is not dependent upon any threshold criteria apart from the fact of incapacity and the existence of what Dame Elizabeth Butler-Sloss P described in Re F (No2) [2000] 2 FLR 512 at 5210 as “a serious justiciable issue” which requires the court’s adjudication. In the instant case, S’s incapacity is sadly self-evident, and conceded. The principal issue between the local authority and Mr S is plainly a significant one — indeed one of fundamental importance to S - namely where she should live, and who should care for her. Dependent on that determination (if her best interests required her to be cared for by the local authority) is the equally significant issue of the contact she should have with her father and her siblings.[14]Equally, there is now authoritative guidance as to how the court should go about deciding any serious justiciable issues which arise. The welfare of the mentally disabled person is paramount. The question, accordingly, is: which outcome will best serve her interests? Further, it is clear that the court goes about deciding that question by drawing up the balance sheet identified by Thorpe LJ in Re A (medical treatment: male sterilisation)[2000] 1 FLR 549, 560F to H:
“Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit ... Then on the other sheet the judge should write any counter-balancing disbenefits to the applicant ... Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.”
[15]The importance of the approach identified in these cases (and in particular the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act in relation to the reception of children into care) is that it raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.[16]In the instant case, the catalyst for the local authority taking proceedings was the incident on 9 November 2002 in which it is alleged Mr S punched S in the face several times whilst a district nurse was attempting to administer an influenza injection to her. Mr S strongly denies assaulting S. Another principal allegation made by the local authority is that on a number of occasions Mr S had been drinking and had been unfit through drink to care for S. Once again, this is strongly in issue.[17]In urging me to take a cautious approach to the exercise of the jurisdiction, Ms Sarah Forster, for Mr S, submits in effect that, absent findings of fact which warranted the removal of S from her father’s care, the local authority will not have made out a case for removing S, and that she should, accordingly, be returned.[18]I do not accept that argument. I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them, if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified in paragraph 16 would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and the long term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.[19]As is apparent, Miss Forster, for Mr S, challenges this approach and identifies a number of shortcomings in the broader brush best interests test. She accepts that, in the words of Dame Elizabeth Butler-Sloss P in Re A (Male Sterilisation)[2000] 1 FLR 549 at 555 best interests embrace medical, emotional and all other welfare issues. She submits, however, that in determining what best interests are, a degree of subjectivity and value judgment is likely to be imported into the decision making process. Miss Forster therefore submits that the only presumptions that should be made are that mentally incapacitated adults are better off if they live with a family rather than an institution and that mentally incapacitated adults who have been looked after within their own families would be better off if they continued to be looked after by them rather than by the state.[20]Miss Forster further submits that the assessment by the local authority that S’s best interests are met by continuing to sanction her removal from her home and her placement in residential accommodation is based on a number of factual assumptions, many of which are incorrect. Hence the need for a factual investigation. Stripped of these assumptions, she submits that the Re A balance sheet exercise does not result in a conclusion that removal from home and the care of Mr S is in S’s best interests. In particular, the court must assess whether if Dr C and Mr O’M had not been proceeding on the assumptions that (for example) Mr S had assaulted S on 9 November 1992; and that Mr S had a serious and longstanding drink problem; or that S led a rather puritanical life with her father, they would have cone to the same conclusion about how her best interests were met.[21]Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interest?[22]It is clear that the law has advanced substantially since the appropriately conservative decision of Hale J (as she then was) in Cambridgeshire County Council v R [1995]1 FLR 50. I am, I think, reinforced in the pragmatic approach I adopt in the instant case by the recent decision of Munby J in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2003] 1 FLR 292. Munby J was dealing with a young adult with severe learning difficulties who had always lived with his father. Following an incident in which the father had slapped the boy, the local authority removed him to a respite unit. The expert evidence in the case was to the effect that although the father, in the main, had provided a good enough level of physical and emotional care, the father had occasionally found it impossible to cope and would find it increasingly difficult in the future. Furthermore, the father’s resistance to co-operation with the local authority at any level would make it difficult to provide him with a package of home support.[23]Munby J made declarations in favour of the local authority similar to those sought in the instant case. He considered with care the balance between the respective rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and took the view that whilst there was no presumption that mentally incapacitated adults would be better off if they lived with a family, rather than an institution, the burden was on a local authority to establish, if it sought to do so, that it was the more appropriate person to look after the mentally incapacitated adult than his own family. Munby J made the declarations sought by the local authority, not only on the basis of the assault or of the risk of future physical wellbeing, but on the much greater risk to the incapacitated adult of avoidable and increasing emotional damage were he to live at home, socially isolated and not afforded the full opportunity to develop his potential.[24]I am also encouraged by Munby J’s ready acceptance of the appropriateness of the court granting relief of the kind sought by the local authority in that case, as in this — see [2003] 1 FLR 292 at paragraphs 50 and 51: 50 ………….Is there any objection to the court granting relief of the kind sought by the local authority? In my judgment there is none. The court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the incapable adult’s welfare and interests. If the court thinks that his interests will be best served by a judicial identification of some third party (the local authority) as the most appropriate person to be responsible not merely for his care but also for taking the kind of decisions to which I have already referred (see para [20] above) then, in my judgment, there can be no objection whatever to the court so declaring. Indeed were the court not to do so in an appropriate case, it would, as it seems to me, be failing in its duties under both the common law and the Convention. After all, to declare that some specified person who is, in the eyes of the court, the most appropriate person to assume responsibility for this aspect of a patient’s care is also to be clothed with practical decision- making on behalf of the patient, is merely to state explicitly that he has those powers and responsibilities which would in any event be reposed in him by the doctrine of necessity Moreover, some such mechanism is essential if those caring for the incapable are to be allowed to get on with their task without the need for endless reference to the court- something which.. .would serve neither the public interest nor the interests of the mentally incapacitated. 51 So, subject always to being satisfied that this really is in the best interests of the mentally incapacitated person, the court has, and in my judgment always has had, power to declare that some specified person is to be, in relation to specified matters, what is, in effect, a surrogate decision-maker for the incapable adult.”[25]I am also encouraged by Munby J’s reliance on the question of the future needs of the adult in question. I remind myself that considerations of welfare involve the widest possible range of considerations.

The respective cases for the local authority and for Mr S

[26]The local authority, in its closing submissions, relied on a total of seven matters in support of its argument that S should reside in accommodation provided by it. In summary, these were:(i) A real risk of further physical abuse given the incident of 9 November 2002 and the threat to beat S with a belt in front of a care worker in 1991.(ii) Mr S’s age and health mean that he will find, as the years go on, S’s behaviour more difficult to manage and thus the risk of him re-sorting to inappropriate methods of control will increase.(iii) Mr S’s volatile temperament and inability to work co-operatively with Social Services will in all likelihood compromise the level of care provided by him. The long history of disputes and his inability to put them behind him did not bode well for S’s future welfare.(iv) Mr S’s failure in the past to recognise the importance of S’s siblings in her life illustrated his inability to put her needs above his own. There is no guarantee that he will make efforts to allow this contact to continue.(v) His drinking and how this impacts on his care — in spite of his denials on this both SS (a care worker) and KB (a senior community worker) referred to seeing him drunk. JS and MS’s evidence that their father’s drink problem was evident throughout their time at home adds support to the social worker’s evidence, as indeed does the conviction for failing to provide a breath specimen.(vi) The need for S to expand her social contacts and live more independently amongst her peers.(vii) S’s need for specialised care and a clearly planned care package, sensitive to her needs.[27]Mr S’s answer to these allegations was that a number of them were both very old and undocumented. Many related to the period surrounding the death of his wife in 1995, and none had been deemed sufficiently serious by the local authority as to merit either discussion with him or any action. Furthermore, the allegation that he had failed to co-operate with the local authority left entirely out of account the occasions when his complaints about the local authority’s conduct had (eventually and after unacceptable delays) been partially upheld. I have considerable sympathy with Mr S on this aspect of the case. The period leading up to and following the death of his wife from cancer in 1995 was clearly a profoundly unhappy one, and has continuing reverberations within the family dynamic manifested by the alienation from Mr .S of S’s sister and brother, MS and JS. But at no point during the period did the local authority think it necessary to intervene as it did in November 2002. I am, accordingly, unimpressed for the most part by these historical complaints and prefer to assess S’s welfare by reference to the present and the future and the evidence of Dr C and Mr O’M.[28]That said, however, and despite my view that the welfare equation in the instant case does not depend upon making findings as to the historical facts, it is, I think, nonetheless necessary for me to examine some of the allegations made by the local authority as to aspects of Mr S’s care of S. In particular I need to look, I think, at the incident which was the catalyst for the local authority’s intervention, namely the events of 9 November 1992.

The incident of Saturday 9 November 2002

[29]I discount entirely the suggestion that in 1991 Mr S threatened to beat S with a belt. The only evidence in support of this suggestion is a reference on the local authority’s file to a report by a support worker. Mr S denies it, and I have no reason to doubt his denial.[30]As to the incident on 9 November 1992 I have a statement from Deputy Sister W, who was attached to a local clinic. She was instructed to visit S at home in order to administer an influenza vaccine. She arrived shortly at midday on Saturday 9 November 2002. Her statement reads:
“As I was about to administer the vaccine, S moved her left arm quickly. I was then unable to administer the injection. Mr S then held S’s arm. S became distressed, started to bite the back of her right hand. Mr S then hit S with his fist about four times on the head and face. S hit back screaming. I called out to them “please stop this”
. This lasted for about 60 seconds. They then stopped hitting each other. Mr S then told me that he would find a rope to tie S down so I could give the injection. I then informed him that I would not be giving the vaccine to S as she was refusing it and that I could not force her to have it. I told Mr S that I would be informing his doctor. I did not inform Mr S that I was reporting the matter to Social Services because of fear of intimidation.”[31]In fact what Sister W did was to go to her car, drive a short distance and then telephone her manager. She was advised to report the matter to social services, and this she did on Monday 11 November. She spoke to Ms T, S’s allocated social worker. Ms. T made a note of the telephone conversation, and asked Sister W to put it into writing. Unfortunately, there was a delay before she did this as, when she telephoned Ms T, Sister W was about to report sick, and was away from work for a few days. Her written version of events is dated 22 November2002. I have a typewritten version of the original manuscript. It is, in all material respects, identical to her statement in these proceedings.[32]Having spoken to Sister W, Ms T immediately telephoned the day centre attended by S to find out how she was. She was told that S appeared satisfactory, although her face was “blotchy”. This was not, however, unusual.[33]On the same day, Mr S took S to the surgery, but the doctor declined to administer an influenza vaccine on the pretext that S did not need it as she was not in a vulnerable patient group. Nobody appears to have noticed any injuries on S’s face at the surgery.[34]On 12 November, Ms T and a colleague visited Mr S whilst S was at the day centre. They explained why they had visited. Mr S strongly refuted the allegations, and said that Sister W was lying. He had not behaved as alleged, and had no idea why Sister W should accuse him of doing so. However, when it was put to him that he had threatened to tie S up with a rope so that the injection could be given, Mr S accepted that he had in fact said something about tying her hands, but had not meant it. He was, Ms T reports, very angry.[35]When she gave her oral evidence to me, Sister W, under cross-examination from Ms Forster, for Mr S, reported a different sequence of events. In her statement, she says that it was after she had first attempted to administer the injection, and after S had become distressed that Mr S hit S. In her evidence to me, Sister W told me that she was quite certain Mr S had hit S before she became distressed; that he had hit her without warning, and that he had punched her, four to six times. She also confirmed that these were punches, not taps, and that he was aiming to hit her.[36]Mr S’s account is that S became distressed when she saw the needle. She did not like having injections. In his statement he says: “On 9 November a nurse came round to give S a flu jab. S had had one before. I did not know the nurse. She advanced upon S with the needle in clear view and S reacted as she had done before (if things were not handled properly) by getting agitated. She began to struggle and she and I were involved in a struggle together before she calmed down. We were due to go out on our regular Saturday shopping trip which I believe S looks forward to. I did not hit or punch her round the head and I did not say I would tie her hands. We went shopping as usual.[37]Mr S accepts that he was angry when he spoke to Ms T on 12 November, but attributes this to his distress at having been accused of assaulting his daughter. He maintained the same version of events in his oral evidence.[38]What then, am I to make of this? There plainly was an incident. S plainly reacted adversely to the imminent prospect of an injection. I am not, however, satisfied on the balance of probabilities that Mr S either punched or deliberately struck S. I reach that conclusion for a number of reasons.[39]First, had Mr S punched S in the face four or six times I think it highly likely that there would have been noticeable signs of injury. I accept Mr S’s evidence that they went out shopping immediately afterwards It is likely that S went to church with Mr S on the next day, and on 11 November 2002 all the day centre observed were blotches: this was not unusual. The surgery does not appear to have noted anything untoward.[40]Secondly, I am struck by the change in Sister W’s evidence. Her statement, that the assault followed S’s distress at the prospect of the injection makes much more sense than a deliberate assault with both fists without warning before the injection was attempted.[41]As against this, of course, is the fact that Sister W is a professional person with no axe to grind, and no reason not to tell me the truth, Furthermore, she reported it to her manager immediately and to Ms. T on the Monday morning. Ms T, I am satisfied, made an accurate note of their telephone conversation. I am quite satisfied that Sister W was not seeking to mislead me or do anything other than tell me the truth as she recollected it.[42]Doing the best I can, I have come to the conclusion that Sister W plainly believed what she says in her written statement, and told me what she genuinely believed she remembered. I find, however, that she is mistaken. There was a struggle between Mr S and S. S is a substantial young woman, and as Mr S accepts can struggle. She was clearly very upset on this occasion. I am satisfied that in his attempts to restrain her, and in particular in seizing her flailing arms, Mr S may have given Sister W the impression that he was assaulting S. But I think her mistaken when she says she saw him punch her four to six times in the face with his fist, and she is wrong to put the struggle first, before any attempt to administer the influenza vaccine was made. I therefore acquit Mr S of assaulting S on 9 November.[43]I do, however, find that he made mention, both to Sister W and to Ms T of a rope which could be used to tie S’s hands. It is, of course, inconceivable that Sister W would have agreed to S’s hands being tied for the purposes of the injection, but I am satisfied the remark was made. Whilst I do not think that Mr S would have tied S’s hands with rope, the fact that he made the suggestion is, I think, a matter of concern.[44]That Sister W believed she had seen what she reported is, however, significant for this additional reason. The local authority was bound to investigate the incident, and fully entitled, having done so, to use it as the basis for these proceedings. For the reasons which I have already given, however, the fact that I find the allegations not made out is not fatal to the local authority’s case. The investigation was undertaken in good faith: and the local authority was fully entitled to institute proceedings consequent upon it.

The allegations of Mr S drinking to excess

[45]I agree with Mr S that many of the allegations relating to his alleged inability to care for S are historical and in the most part somewhat imprecise. This is, I think, particularly the case in relation to the allegation that he drinks to excess. The thrust of the case was the suggestion by his children MS and JS that he drank to excess when they were in the home, and in particular during the period around the death of Mrs S. Allegations made by MS and JS have to be viewed, in my judgment, with considerable caution, given the hostility which both demonstrated towards their father.[46]However, one of the most recent allegations was made by Ms SS, a care worker, who says that in March 2002 Mr S collected her and S from the day centre in order to fetch S’s new travel card. Ms SS says that Mr S smelled of drink, was abusive, went a long way round, drove the wrong way up a one way street and swore a great deal at other drivers. On arrival at their destination, Ms SS said she realised Mr S was drunk. She nonetheless drove back with him and with S to the day centre.[47]Ms SS gave oral evidence. She was not a good witness. She insisted there was no possibility she could have been mistaken about smelling alcohol on Mr S’s breath. It had taken them 35 minutes to drive a very short distance. When it was put to her that she would not have driven back to the centre with Mr S if she had thought he was drunk she said: “I risked my life, and S’s life”.[48]My scepticism about Ms SS (who, as a Muslim, did not drink) smelling alcohol on Mr S’s breath was reinforced by the evidence of another witness, KB. KB is a senior community worker employed by the local authority. Mr S’s explanation for any smell of alcohol that he may have had about him was the fact that he has pains in his neck and shoulder, which he rubs with Bay Rum. He does this, he told me, about twice a day, and he also rubbed it on his leg. He produced two containers, which he invited by SS and KB to smell. The latter, very fairly, said the smell was familiar, and she accepted that what she smelled when meeting Mr S might have been bay rum.[49]Mr S’s evidence was that he drank Guinness and, less frequently, wine. He denied drinking to excess. None of the witnesses called on his behalf, who struck me as decent and straight forward people, supported the suggestion that he drank to excess. The evidence that he does so is, in my judgment, unreliable, and I acquit him of it.

Other criticism of Mr S and my assessment of him

[50]I have already made it clear that I think Mr S has a point when he says that at no point has it ever been broached with him by the local authority that he drank to excess or -prior to 9 November 2002 - that he had been violent towards S. Indeed, when one looks at the local authority’s statement of case, one sees that many of the issues raised relate to the period immediately after his wife’s death, and whilst there may have been ongoing concerns, none of them, prior to 9 November 2002 was sufficiently serious to move the local authority into any form of protective action.[51]The local authority complains about a lack of co-operation from Mr S. Mr S, in return, points to the complaints which he has made about the local authority’s behaviour, and to the number of complaints which have in part been upheld. In my judgment there would be little purpose in me raking over this ground, which does not assist me in deciding where S’s best interests lie.

My assessment of Mr S

[52]I have no doubt, having read his statements, having seen Mr S in the witness box, and heard him cross-examined, that he is a proud man. His ethos in relation to his family is, I think, strict to the point of being authoritarian, He is a regular member of his local Pentecostal church. He would regard himself as the head of the family, and entitled to respect. He has a strong sense of duty. He cares for S, and regards it as his duty to look after her. He is suspicious of those who take a different view from him about her, He would easily believe that others were conspiring against him.[53]I have no doubt that, from the local authority’s perspective he has not been an easy person to deal with. He has undoubtedly, on occasions, refused to give them information, and has sometimes failed to co-operate. At the same time, he has not, in my judgment, been as well treated by the local authority as well or as sympathetically as he could and should have been. He has been seen as difficult and obstructive. For long periods he has been left to get on as best he might. The local authority, however, difficult the task, has not been able to develop a working relationship with him. That is most unfortunate.[54]I would like to think that this might now change — or that it could change. I was impressed by S’s current allocated social worker Ms T, who has been in post since 12 June 2001. The events of 9 November will not have made the task of rapprochement any easier, but if Mr S can accept that S’s proposed placement by the local authority is truly in her interests, it seems to me that the stage could be set for co-operation between Mr S and the local authority as to the role he is henceforth to play in S’s life, and (possibly) a reconciliation between Mr S and MS and JS, perhaps brokered through a Family Conference.[55]There is no doubt that the features in Mr S’s personality which I have described have led to family conflict. MS and JS gave evidence for the local authority. Neither visits their father at home. Both are estranged from him, although both said they would like the rift to be healed. Both believe that he should no longer be caring for S. Once again, no purpose would be served, in my view, by seeking to examine further the origins of that rift.

The professional and expert evidence

[56]Ihave set out the background against which S’s future has to be decided, but in reaching my decision, I am most influenced by the fact that both Dr C and the independent social worker Mr O’M were strongly of the opinion that S’s welfare was better served by placement in the accommodation proposed by the local authority. Mr O’M made it clear that even in none of the allegations made against Mrs S was established, it was, nonetheless, in his opinion in S’s interests to reside in the accommodation provided by the local authority. That is a viewpoint with which I agree.[57]Both Dr C and Mr O’M had, it seemed to me, investigated the matter thoroughly, Mr O’M had visited Mr S’s home, and seen the facilities provided there for S. He had also interviewed all the interested parties. He described S as a very vulnerable young woman who, at the same time, presented with challenging behaviour. She required 24-hour assistance and supervision with her personal care and all activities of daily living. in his view she required an appropriately designed programme of specialist care, to help optimise her quality of life, ensure her safety and to guard against possible exploitation.[58]Mr O’M regarded it as unfortunate that there appeared to be a serious rift between Mr S and MS and JS, leading to MS and JS being excluded from contact with S whilst she lived with her father. This was a loss to S and not in her long term interests were it to continue.[59]Mr O’M was concerned that the carers obtained by Mr S for S were not police checked and possibly unqualified. S needed consistency of care. Furthermore, in his view, Mr S presented to him as wholly focused on his own needs, and preoccupied with his disputes with the local authority and with MS and JS. He did not see this aspect being likely to change and were S to remain in his care, she would be likely to be denied contact with her siblings and her wider family.[60]Mr O’M was also concerned about the consequences to S of Mr S’s death or inability to continue to provide care for S. Such disruption, he thought, could be highly destabilising, resulting in behavioural disturbance and regression. This was to be contrasted with the security and consistency of care afforded by an appropriate specialist placement. He did not think that the effective management of her behaviour, and the consistency of approach required to optimise her social, communication and self-care skills, could be provided at home by Mr S.[61]Dr C’s approach was similar. She was concerned in particular by the fact that Mr S was 65 and suffering from diabetes and hypertension. Time was getting on, she said, and it is likely that he will become frailer. He is one individual, and it is difficult to care for somebody like S with so many needs. If, for example, he had to go into hospital overnight, it was much more difficult for him to organise care. Equally, if he was rendered unable to care, there was really no viable alternative. His sister, Mrs AM was in full time employment, and thus not able to take over S’s full time care. “His whole package of care is pivotal on the well-being of one person”, she said.

The Re A balance sheet

[62]Thus, when I draw the balance sheet identified by Thorpe LJ in Re A,I identify on the positive side that Mr S both loves and feels a strong sense of duty towards S. Furthermore he has been able, since the death of his wife, to care for S with the assistance of her carers he has found, her regular attendance at the day centre, and periods of respite care. He has provided adequately for her needs.[63]On the debit side is the fact that he is now rising 66. He had diabetes and arthritis. He will undoubtedly find it increasingly difficult to care for S as he grows older, and he does not really have any practical contingency plan were he to fall ill. Add to this, from S’s perspective, is the fractured relationship with S’s brother and sister, which currently makes it impossible for them to come to the house to visit S, and which makes contact with her difficult.[64]Also into the equation inevitably falls a comparison with what the two proposed homes offer to meet S’s needs. The proposed local authority accommodation offers what is, in effect, purpose built accommodation and staffing to meet S’s needs. Furthermore, it offers for her not only the prospect of more social living amongst people of her own age, but facilities which will enable her father and siblings to visit.[65]In this context, it seems to me that the professional evidence is crucial. Both the jointly instructed consultant psychiatrist and the independent social worker conclude that the local authority’s proposals meet S’s needs better than a return to her father’s care. I agree with that analysis.[66]Accordingly, when the balance sheet is drawn the case for S living in the accommodation and with the support services provided by the local authority is extremely strong. And part of its strength, of course, is that it does not exclude Mr S: rather to the contrary, if he could bring himself to accept it, it would enable S to have the benefit of his presence on a regular basis — including, of course, taking her to church each Sunday — without the increasing difficulties which he is likely to encounter in catering for her day to day needs.[67]In these circumstances, I am in no doubt at all that, viewed from S’s perspective, her best interests require the declarations sought by the local authority.[68]I hope Mr S will understand that in reaching this conclusion, I am making no criticism of him. He has done remarkably well by S. However, the time has now come where her welfare can be best promoted by different arrangements.

Safeguards and contact

[69]Two further points need to be dealt with. The first relates to safeguards for both S and Mr S. I hope very much that it will be possible for a partnership now to be developed between Mr S and the local authority for S’s care. However, if that proves impossible, the court must be available as a fall back if outstanding issues cannot be resolved by agreement between the local authority and Mr S.[70]The draft order contains a number of provisions designed to protect both S and Mr S. The local authority agrees to consult Mr S, if practicable, about S’s medical treatment or any changes in the arrangements for her care. There is liberty to apply to vary the order preventing Mr S removing S from hem placement with the local authority on seven days’ notice, and apart from any internal local authority complaints procedures, Mr S will also be able to write to the Official Solicitor if he is seriously anxious about any aspects of S’s care. Further more the order contains an agreement by the local authority to appoint an independent advocate for S on or before 18 August 2003. I am therefore satisfied that the order builds in adequate safeguards for both S and Mr S.[71]The order for contact is by means of a declaration and accompanying schedule: - see para 4 of the order attached to this judgment. The declaration, however, provides for contact to be agreed in advance in accordance with the schedule, and I am satisfied that in putting it forward, the local authority is genuine in its wish to facilitate Mr S’s contact with S. There are, in the Schedule, provisions for contact to be reviewed at regular intervals at meetings to which Mr S will be invited. There is, accordingly, ample scope for contact to be expanded, and for Mr S to play a full part in S’s life.

Footnote

[72]I have reduced this judgment into writing and anonymised it for two principal reasons. First, I wish Mr S to have a written judgment which he can read and digest without waiting for a transcript, and which in its anonymous form, he can show — if he wishes — to any third party of his choice. Secondly, however, it seems to me that when a judge of the Family Division exercises the inherent jurisdiction in this way, it is important that the judgment should be a public (albeit anonymised) document. Thus although the hearing was in chambers, I give permission for the judgment to be published, on the usual basis that S, the parties and witnesses in the case are identified only by initials. I do this not because I think the judgment is of any importance to the legal profession, but so that the workings of the Division in this aspect of its work are seen to be open to public comment and criticism.

Conclusion

[73]For all these reasons, I am satisfied that S’s best interests require the declarations and orders to be made in accordance with the draft attached to this judgment, and such will be the order of the court.

Cited in 14 later judgments

and 5 more of the most senior