B Borough Council v S & Anor [2006] EWHC 2584 (Fam)

Case No FD04P01900[2006] EWHC 2584 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 rd October 2006
Before
THE HONOURABLE MR JUSTICE CHARLES
Between
B Borough CouncilApplicantMrs SFirst RespondentMr S (by the Official Solicitor)Second Respondent
Mark de Souza (instructed by BBC) for ApplicantBarbara Hewson (instructed by Fisher Meridith) for First RespondentAngela Hodes (instructed by the Official Solicitor) for Second RespondentHearing Hearing date: 31 July 2006
Judgment

Charles J :

[1]I am giving this judgment in public in an anonymised form because it covers points of some general interest and matters that are private and personal to the parties.[2]This part of the claim and the proceedings is based on the inherent jurisdiction and relates to the interim injunctions that the claimant local authority obtained on a without notice basis against the second respondent (Mrs S) on 16 September 2004. Time has passed, and other proceedings have been heard, since then but throughout Mrs S has maintained and preserved her argument that in obtaining those injunctions on a without notice basis the local authority acted unlawfully and did not adopt the correct approach. This judgment deals with that issue.[3]The first respondent (Mr S) is now a 90 year old man who lacks capacity and who did so in 2004. Mrs S is in her eighties. The underlying issue in the proceedings was as to where Mr S should live. His condition and behaviour has changed during the proceedings. The relevant primary care trust (PCT) was joined and proceedings for judicial review were also instituted. The PCT accepted that Mr S was eligible for continuing NHS care and thus that it was responsible for funding his care and placement. In May 2006 I refused to grant permission to Mrs S to judicially review the decision of the PCT relating to the placement of Mr S. The results were that(i) Mr S was and remains placed in an Elderly Mentally Infirm (EMI) home and that placement is funded by the PCT, and(ii) the proceedings by the local authority under the inherent jurisdiction have become redundant save for the points as to the interim without notice relief granted at their commencement. In my judgments in May 2006 I dealt with the approach to be taken to the two sets of proceedings and the different tests involved therein.[4]Throughout the hearings before me Mrs S was strongly of the view that Mr S should live with her at home with the assistance of a support package provided by public authority. As I have already mentioned she did not achieve this result. I pause to comment that I, and in my view the PCT and the local authority, were sympathetic to Mrs S’s view that she wanted her husband of many years to be at home. I add that in my view during the course of the proceedings, and before they started, the public authorities involved (i.e. the local authority and then later the PCT) have made considerable efforts to promote what they considered to be the best interests of Mr S.[5]The underlying issue of where Mr S should live after a long marriage is an emotive and understandably distressing one for Mrs S. I add that the Official Solicitor who acted as Mr S’s litigation friend supported his placement in the home identified and funded by the PCT.

Background to the without notice application made on 16 September 2004

[6]Mr and Mrs S were married in 1945.[7]By September 2004 the local authority had been involved for some time with Mr and Mrs S in respect of the care needs of Mr S. It is common ground that at times his behaviour was very difficult and challenging and his care needs were extensive and included problems concerning incontinence and mobility. Mr S is a big man. He had been in and out of a number of homes and he and his wife had received support packages at home.[8]Unsurprisingly to the outsider there had been problems both in respect of the nursing homes and Mr S’s care at home. I return to these, the evidence in support of the without notice application and the criticisms and disputes relating to that evidence.[9]By, and in, September 2004 Mrs S was not urging that she should care for Mr S at home with the help of a support package (as she did later in the proceedings) but was urging his placement in an EMI home that she thought was suitable. There were, and always have been, very real difficulties in identifying a suitable home both as to the facilities offered and location. Also, and understandably, there has been room for reasonable differences of opinion as to the suitability of a home, or aspects of its care or facilities, and the overall merits of it as a placement in comparison with a placement at another home or of Mr S at home with Mrs S with a support package.[10]On 10 September 2004 Mr S was admitted to a nursing home. The immediate background to this was one of escalating difficulties. Mr S had been at home with Mrs S from early August 2004 and as she says in her evidence she was getting very desperate with the support provided and the lack of respite care. She handed a letter to the local authority on 9 September 2004 in which she sets out some of the recent history seen through her eyes and ends by saying she is exhausted, she can hardly walk, her blood pressure is getting very high and in capitals saying “please help”.[11]On 15 September 2004 the nursing home informed the local authority that it could not cope with Mr S’s care needs because it had several young female staff who could not cope with his behaviour, and other residents were complaining about the noise he was making. This is an indication of how difficult he was to manage at that time.[12]No other nursing home was readily available.

The without notice injunctions made on 16 September2004

[13]Upon undertakings(a) to issue the claim form by 21 September 2004,(b) forthwith on issue to serve Mrs S with the application and the statement of the social worker dated 16 September 2004, and(c) to serve the Official Solicitor and invite him to act as litigation friend and attend on the return date on 27 September 2004, the court made the following without notice orders against Mrs S over 27 September 2004 (when the case was listed for hearing with a time estimate of one hour), namely orders forbidding Mrs S from: i) preventing the move of Mr S to K hospital and thereafter from removing or seeking to remove him from K hospital and from requesting or encouraging anyone else to remove him from K hospital, and ii) interfering with the arrangements made by the claimant for the care of Mr S at K hospital and in particular that she must not (a) enter or attempt to enter K hospital without the prior written agreement of the claimant's social services department, and (b) attempt to see Mr S at K hospital except at times agreed in writing with the claimant's social services department and all such contact to be in the presence of an employee of the claimant social services.[14]Both Mrs S and Mr S were given permission to apply to vary or discharge the order on 48 hours written notice to the claimant's solicitors.[15]A penal notice was attached to the order.

A short chronology of later events

[16]On 17 September 2004 two social workers went to see Mrs S and informed her of the order made by the court on the previous day. They also gave Mrs S an envelope containing the court papers, psychiatric reports and the statement of the social worker (although as I understand it the claim form had not by then been issued) and gave her an explanation of the effect of the orders. The statement describing the reaction of Mrs S has not been challenged. It says that Mrs S was extremely distressed as evidenced by her raised voice and her pacing of the room. The view of the social workers was that she did not accept or understand the terms of the order. She stated that she was going to go and get Mr S and bring him home and there was nothing the local authority could do about that.[17]The social workers suggested that Mrs S should speak to her solicitor or a friend and assisted her in getting the solicitor’s number. The solicitor was not available and Mrs S (and, at the request of Mrs S, one of the social workers) spoke to a friend of Mrs S. After that the social workers drove Mrs S to the nursing home where Mr S still was and she was present with social workers during his move to the K hospital.[18]Mrs S was given a letter on 17 September 2004 recording that she could visit Mr S daily at the K hospital between 2.30 and 4 p.m. as long as she was accompanied by a member of the staff of the local authority. Copies of this letter and the injunctions were given to the hospital.[19]From 17 September 2004 Mrs S had that daily supervised contact with Mr S.[20]On 27 September 2004 Mrs S appeared in person and produced a letter she had written to the court addressed to the judge. That is a moving letter in which she says amongst other things that she was fighting for the right placement for Mr S and apologises “for all the times I have gone over the top with stress”.[21]In that letter she asks that she be permitted to “prove that she can be trusted to visit Mr S alone again”.[22]As Mrs S was served on 17 September 2004, it seems to me that nothing turns on the point that the local authority was given until 21 September 2004 to issue the claim form and serve Mrs S with the statement relied on in support of the without notice application. I confess I do not understand why the undertaking did not require issue and service much earlier. Even if time for issue had been appropriate, good practice would have required earlier service of the order with the supporting evidence (as in fact occurred). The facts that Mrs S was served when she was and that the Official Solicitor attended for Mr S on 27 September 2004 have the consequence that nothing turns on the questions whether there was a need to add Mrs S as a party, as the order made on 27 September 2004 states was done, or whether this was a typing error in the order and it was Mr S who was then added. They should both have been parties.[23]On 27 September 2004 counsel appeared for the claimant and Mr S (by the Official Solicitor) and the court made an interim declaration that Mr S lacked capacity to make decisions relating to where he should live and that it was in the best interests of Mr S to reside at K hospital. Also as sought by the local authority, and as I understand it supported or at least not opposed by the Official Solicitor, the injunctive relief was continued until further order on the basis that the matter be adjourned for directions on the first open day after 25th October 2004 with a time estimate of 30 minutes. This continued the regime of supervised contact.[24]In the event that an appropriate permanent residential placement was identified any party was given permission to restore the matter for hearing on 48 hours written notice.[25]On 16 November 2004 all parties were represented and directions were given for the preparation of expert evidence to cover amongst other things the capacity of Mrs S to care for Mr S at home. The injunctive relief was not ended or altered.[26]On 20 December 2004 all parties were again represented and the injunctions continued on 27 September 2004 were discharged. Directions were given as to the filing of a statement by the claimant setting out proposals for the admission of Mr S to an EMI nursing home and its proposals for meeting the needs of Mr S if he was to be cared for at home, to include its assessment of the viability of the care package then being proposed by an independent social worker. A direction that there should be an experts’ meeting was also made.[27]At this hearing it was common ground between the parties that interim declarations should be made and the court made the following interim declarations: i) that Mr S lacks the capacity to make decisions relating to where he should live and the arrangements for his contact with others; ii) it is unlawful, being contrary to the best interests of Mr S, for the parties to arrange for him to be accommodated other than at K hospital or at such nursing home registered to care for the Elderly Mentally Infirm as may be agreed between the parties; and iii) it is lawful, being in the best interests of Mr S, for contact between Mr S and Mrs S to be in accordance with the arrangements made by K hospital.[28]As is apparent from that order, and as was stressed on behalf of Mrs S before me, that by 20 December 2004 it had become common ground that injunctions against Mrs S need not be continued. By then a regime relating to contact and where Mr S should live was operating and it was agreed that it would continue to operate against a backdrop of declaratory relief and a dispute as to where Mr S should live.[29]My understanding is and I proceed on the basis that the regime included unsupervised contact between Mr and Mrs S in his room at the hospital.[30]One of the problems that existed was the risk of infection at the hospital. Another problem was the identification of an EMI nursing home that could take Mr S. Issues also existed as to the viability of a support package to enable Mr S to live at home.[31]On 20 January 2005 the matter came before me and I heard argument. I continued the interim declarations with a qualification to the second interim declaration to enable Mr S to be placed at accommodation arranged in the terms of the schedule to the order which provided as follows: i) as and when the local authority identifies an EMI residential placement deemed suitable to the local authority, and the support package as identified between the parties has been formally agreed so that everyone knows exactly what the expectations of both sides are, Mr S should move home to live with Mrs S for a trial period of six weeks, in the alternative ii) in the event of no EMI residential placement being judged by the local authority to be appropriate becoming available prior to 28 February 2005, but the support package as identified between the parties has been formally agreed so that everyone knows exactly what the expectations of both sides are, Mr S should move home to live with Mrs S for a trial period of eight weeks prior to the final hearing on 25 April 2005 to commence not later than 28 February 2005.[32]I gave my reasons for making that order in a judgment I delivered ex tempore on that day. The schedule also demonstrates that the local authority had agreed that if a place was found at an EMI home it would keep it open for Mr S during the trial period thereby maintaining a realistic choice as to what would best promote Mr S’s welfare. This demonstrates the commitment and effort made by the local authority to achieve a result that was in the best interests of Mr S.[33]Such a support package was agreed and Mr S returned home for a trial period. That trial period came to an end because Mr S became ill and that illness resulted in him being admitted to hospital. Thus the trial did not end because of a breakdown of the community care support package provided to Mr and Mrs S at home by the local authority.[34]Following Mr S’s illness and hospitalisation the two day hearing fixed for 25 April 2005 was adjourned by consent. There were further adjournments by consent in the knowledge that this would result in considerable delay before further court dates were available.[35]Naturally the trial period would have informed the parties and the court as to whether a placement at home was a practicable solution. Even if the trial had been completed and been successful there would have been major issues as to whether(a) a placement at home was the appropriate medium to long term solution included among which would have been the issue as to where Mr S could be placed for respite and if there was a breakdown (given the difficulties in finding a suitable EMI home for him), and(b) as events demonstrated, whether the support package at home was within the range of community care and thus the responsibility of the local authority or whether the public body responsible was the PCT.[36]As I have already indicated the PCT accepted that Mr S was eligible for continuing NHS care. This was accepted but Mrs S sought permission to challenge by way of judicial review the decision of the PCT as to where that care should be provided, and I refused that permission.

General comment on without notice applications

[37]There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.[38]Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with: i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent’s case is, or is likely to be, ii) where available and appropriate, independent evidence, iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted[39]As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.[40]Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at [2006] 2 FLR 354).[41]Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners(a) too regularly do not follow and implement that guidance, and(b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.[42]As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when(a) the guidance has not been followed, and(b) the impact on the person against whom the relief is granted could be considerable.[43]I add that additionally there is a need(a) to comply strictly with undertakings given at the time the order is made, and(b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.

Jurisdiction to grant interim injunctive and declaratory relief

[44]At an earlier stage Mrs S challenged the jurisdiction of the court to grant the interim relief it did. But later, and in my view correctly, she accepted that the court had jurisdiction to grant interim declaratory and injunctive relief.[45]When the Mental Capacity Act 2005 comes into force it will provide statutory jurisdiction for this (see in particular ss. 47 and 48). In my view the procedure relating to, and the evidence required for a without notice application will not alter materially when the applications are based on that statutory jurisdiction.[46]In my view it was correctly accepted that, notwithstanding what is said in St George’s Health Care NHS Trust v S [1999] Fam 26, there is now jurisdiction to grant an interim declaration pursuant to CPR Part 25. I recognised the existence of this jurisdiction and discussed aspects of its exercise in NHS Trust v T [2004] 3 FCR 297.[47]Notwithstanding the comments of Hale J (as she then was in Re S (Hospital Patient: Courts Jurisdiction) [1995] 26 at 36), it was also (in my view correctly) accepted that there was jurisdiction to grant interim and final injunctive relief in cases based on the inherent jurisdiction (see In re a Local Authority (Inquiry: Restraint on Publication) [2004] Fam 96 at 124, Re P (Care Orders: Injunctive Relief) [2000] 2 FLR 385, s. 37 Supreme Court Act 1981, Re Z [2004] EWHC 2817 (para 15 onwards – power to restrain criminal behaviour) and more generally as to the court’s inherent jurisdiction Re F (Adult: Court’s Jurisdiction) [2001] Fam 38).

The essential complaints made by Mrs S

[48]The first is that the claimant should not have commenced the proceedings in the way that it did and thus without prior consultation and by seeking without notice injunctive relief.[49]Next, and on the basis that a without notice application was justified, Mrs S asserts that the initial orders sought and granted were far too wide, the evidence in support failed to satisfy the requirements placed on an applicant seeking without notice relief and the procedural safeguards which should have been in place to protect the interests of Mrs S (and Mr S) were not properly observed.[50]Thirdly it is asserted that Mrs S’s human rights were infringed by the manner in which the proceedings were commenced. Although it covers much of the same ground I shall deal with this head of claim and argument separately.

The general position of the local authority

[51]This is that a without notice application and the orders made were appropriate, proportionate and justified in the circumstances of this case, and that the evidence in support of the application and the procedure adopted satisfied the tests to be applied thereto.[52]In this context the evidence put in by the local authority explained that the application was made without notice in the following terms:
“ The application for the injunction is made without notice in the first instance to ensure that protective measures are in place before service. I believe on the basis of Mrs S’s behaviour that she might seek to pre-empt any decision if there was a hearing on notice. Even if unsuccessful the attempt would be distressing and disruptive.”
[53]In argument it was accepted that a without notice application was not warranted on the basis that the nursing home was about to eject Mr S and an immediate decision on his placement was necessitated for that reason. In other words the local authority, in my view correctly, accepted that the nursing home would have fitted in with a timetable for the removal of Mr S that would have allowed for prior discussion with Mrs S and an application on notice to be made to the court.

The position of the Official Solicitor

[54]The Official Solicitor took a neutral stance on the issue whether without notice application and relief was appropriate and as to the extent of such relief. He did however provide the court with the relevant new practice notes (now reported at [2006] 2 FLR 354 and 373). He accepted and asserted that the recent authorities relating to Emergency Protection Orders (the two Re X and the X Council casereferred to above) should be applied by analogy to adult welfare cases. This was common ground before me and I agree.[55]He pointed out that:
“ The practice has grown up whereby members of the judiciary or solicitors for claimants have from time to time notified the Official Solicitor that a without notice application is about to be made. While the Official Solicitor is happy to encourage this practice, he would like it to be recognised that he may be unable to undertake any independent investigation of the matter prior to the application being heard and may therefore provide little assistance to the Court or to the person whom he may represent at that stage. ”
Notification of, and discussion with, the proposed Respondent and others who are concerned with the care of the person who lacks the relevant capacity[56]As the authorities point out appropriate participation by persons who will be affected by the decisions of public authorities in the decision making process lies at the heart of a fair decision making procedure for the purposes of both the principles of English law (developed prior to the introduction of the Convention into it) and of the Convention. Participation enables those persons to express their positions in the appropriate manner and to the appropriate people.[57]A without notice application may follow notification and discussion between the relevant public authority and the persons affected. Indeed what is said and done during them may prompt the without notice application.[58]The dilemma facing a public authority in deciding whether to raise a proposed course of action relating to a person who lacks capacity with affected or interested persons before it is embarked upon (here the removal of Mr S from a nursing home to a hospital) is whether this will prompt actions which should be avoided in the best interests of the person who lacks capacity. Unless the discussion prompts the need for urgent and without further notice application to a court the decision is whether or not the public authority should either(a) raise a proposed course of action with the affected persons as a first step, or(b) as a first or early step make an application for without notice relief as part of, and to facilitate, the proposed course of action.[59]As the Official Solicitor points out if he is notified of a proposed without notice application he would be unable to carry out any detailed merits or welfare assessment and, in particular, he would be inhibited from consulting the persons against whom without notice relief was being sought. Thus it seems to me that giving notice to the Official Solicitor does not avoid, or provide answers to, the issues raised by Mrs S before me.[60]However it seems to me that notification of the Official Solicitor can provide assistance, and a check, in respect of the decision making process as to whether without notice relief should be granted and, if so, the terms and conditions in and on which it should be granted. For example he will look at the position from the perspective of the person who is said to lack capacity with an experienced eye and, by reference to the evidence relied on, comment as to whether in his view without notice relief would be appropriate and on the extent and nature of that relief. His early involvement, particularly in cases where after investigation he agrees to take and does take an active longer term part, is also likely to be of assistance in the identification and planning of the steps that should be taken to obtain expert opinion and to enable the court to make a fully informed decision as to what would be most likely to best promote the welfare of the relevant person. I pause to comment that the role of the Official Solicitor and his early notification of proposed proceedings and a without notice application may be affected by the practice and the rules of the new Court of Protection.[61]But in my view it is important to remember that at the time of a without notice application that(a) the decision makers as to whether such an application should be pursued and granted are the applicant and the court respectively, and(b) the Official Solicitor is not likely to be in a position to make any recommendation, or to express a view, as to whether without notice relief should be pursued or granted. Further I suspect that he would be most reluctant to do so, having regard, for example, to his need to discuss matters with the relevant person and family members in the future if the case proceeds.

The evidence relied on by the Claimant in making the without notice application

[62]This was a statement of a relevant social worker exhibiting three letters from a psychiatrist written in November 2003, February 2004 and September 2004 which address Mr S’s health and behavioural problems. It did not exhibit social work records and thus the contemporaneous records of matters referred to in it and relied on.[63]Those advising Mrs S tried to obtain a transcript of the hearing but there were problems with the master tape and a transcript could not therefore be obtained. This is unfortunate, and the problems it causes are compounded by the absence of a detailed note of what the judge was told on the application, for example as to the proposed arrangements for service of the order, the giving of an explanation of the effect of the orders to Mrs S, for moving Mr S and for contact.[64]I have set out earlier what in fact happened in those respects which demonstrates either what was planned, or what was decided after the order was obtained. It seems to me that the former is more likely given the timing of events and in any event if information had been offered, or sought and given, as to those matters I am satisfied that the local authority would have informed the court that what happened is what it intended.[65]There are a number of points made in the evidence relied on by the local authority, but it has three main and general themes namely(1) the problems and difficulties in the care of Mr S,(2) the problems and difficulties in providing that care at home with a support package and in nursing homes (including the removal of Mr S from nursing homes and the exchanges between Mrs S and those homes and persons assisting at her home), and(3) allegations of physical and emotional abuse of Mr S by Mrs S. Naturally there is a linkage between the matters dealt with under these themes and I accept that they are generalities.[66]By the time of the first hearing on notice the social worker had prepared another statement recounting events after the making of the order in support of a continuation of the relief granted without notice.

The challenge to that evidence

[67]Mrs S put in(a) two statements of her own prior to the December 2004 hearing, and(b) a number of statements from neighbours and others who saw her and Mr S on a reasonably regular basis supporting her position that she has always provided good and loving care to Mr S and has not abused him in any way.[68]In respect of the three themes there is no major dispute as to the first, namely as to the extent and nature of the physical and behavioural problems that Mr S was suffering from.[69]The second theme is disputed by Mrs S. She does not dispute that there were problems both with nursing homes and persons who came to her home but asserts that assessed overall the impression given by the social worker’s statement is that she regularly behaved without justification and unreasonably, whereas Mrs S asserts that generally the complaints she made were justified and her behaviour was reasonable. In this context she points to an account given by the same social worker to an independent social worker instructed to report during the proceedings which Mrs S says is more balanced and in which the social worker accepted that Mrs S did have some legitimate complaints. Mrs S also asserts that some of her complaints were based on the point that what was said and done by some helpers, and their appearance, were things that prompted disinhibited behaviour by Mr S and that this was why she complained at times that they were over familiar or too attractive.[70]Mrs S vehemently disputes the third theme. She asserts that the allegations made in it are unfairly and inaccurately generalised, and that reports referred to therein are based on misunderstandings and misconceptions, are wrong and unfair.

Resolution of disputes of fact

[71]In my view correctly I was not invited to hear oral evidence or to make findings.[72]I therefore have to consider matters (as did the court when granting interim relief) by reference to the written evidence and thus against the background of common ground and differences revealed therein. The nature of the disputed allegations and counter allegations is therefore relevant as is the point that they are allegations (not facts found to the civil standard).

Effective common ground

[73]In my view having regard to all the written evidence before me (and thus for example the account given by the social worker to the independent social worker which Mrs S asserts is “far more balanced and nuanced” and the contemporaneous notes and correspondence relating to matters covered in it) and acknowledging that much of this material was put before the court after the grant of interim relief in September 2004 and its continuation, it is common ground or apparent that: i) at times Mr S was very difficult to deal with both in respect of his physical care and his behaviour, ii) Mrs S made complaints and criticisms some of which were justified but some of which were not (perhaps particularly in the terms in which they were made), iii) there had been tensions between Mrs S and those involved in caring for Mr S at the nursing homes in which he was placed and in her own home, iv) Mr S had been at and removed from a number of nursing homes by Mrs S, v) Mrs S was an elderly lady, who had her own medical problems, had physical problems in caring for Mr S relating to his lack of mobility and size and was extremely tired, vi) the nursing home in which he had been placed in September 2004 had stated clearly that it would not keep him, and vii) no other suitable nursing home was realistically available.[74]In short an emotionally charged and difficult situation existed and had done so for some time. At times Mrs S would express herself in strong, demanding and emotional terms sometimes justifiably and at other times with less (and sometimes no) justification. She had demonstrated and during the proceedings demonstrated a volatile and forceful side to her character. This is also shown, as is the overall picture, by the extracts from comments made by the social worker to the independent social worker which Mrs S asserts presented a more balanced account which are referred to in the written argument put in on behalf of Mrs S, namely :
“It is like a roller- coaster all the time because she is a “this moment” person ---------- she wants things to happen immediately. ------------------- Although I do not think she realised it, it was like a care service just for Mr S and I suppose from her perspective this is not unreasonable.”
[75]All involved were faced with a difficult, emotionally charged, developing and changing situation.

The placement options as at 16 September 2004

[76]In my view there was only one realistic short term possibility and that was placement at the K hospital.[77]Indeed, and in my view correctly it was not argued, that a defect in the evidence in support of the without notice application was that it should have identified alternative realistic options at another nursing home or at home with Mrs S.[78]A suggestion at that stage that an immediate return home with a support package could have been agreed in discussion and implemented with any real prospect of success would be (and would have been) unwarranted.[79]In this context I have not forgotten that in January 2005 I directed that there should be a trial period at home. But by then there had been changes and a substantial amount of work had been done against the background of the court proceedings and thus in circumstances in which the court was engaged as the decision maker. To my mind it would be unrealistic to suggest that this result could have been achieved by negotiation or court order in September 2004 given the position of Mrs S and in particular her own health and exhaustion and the tensions that existed.[80]In my view when the nursing home made it clear in September that Mr S must leave a watershed was reached necessitating decisions as to immediate placement against which longer term decisions relating to the care of Mr S could be made and court involvement in those decisions was necessary.

Was a without notice application justified?

[81]In my view the answer is “yes it was”.[82]As pointed out on behalf of Mrs S there were alternatives namely(a) prior discussion either as a continuation of the planning meetings recently held to which Mrs S could have been, but was not, invited or specifically prompted by the decision of the nursing home that Mr S must leave,(b) possibly an application relating to guardianship under the Mental Health Act or(c) an application on notice (that notice could have been that required by the rules or short notice).[83]In an earlier judgment in a different context but in respect of injunctive relief I expressed the view that Mrs S is a lady who “goes to law”. From that, and other matters relating to the history, it was argued that if she had been consulted about a move to K hospital Mrs S would have discussed the issues constructively and would not as the local authority asserted it feared have sought to pre-empt any decision by removing Mr S from the nursing home.[84]At that stage Mrs S did not have a solicitor or other professional acting for her. As she says in one of her statements she had planned to see a solicitor about whether she should pay a nursing home from which she had removed Mr S earlier. She asserts that she does not understand why she was not sent a letter before action or given notice of the proceedings.[85]It seems to me that given Mrs S’s lack of professional advice and the emotionally distressing nature of the issues a commercial or quasi commercial approach of a letter before action or an application on notice (perhaps short notice) would have been inappropriate. In my view(a) there would have a very real possibility that distress would have been caused to Mrs S if she had been informed of the intention or threat to issue proceedings in that formal way, and(b) this possibility had the result that the choice open to, and the decision for, the local authority (and the court) was whether Mrs S should be visited, as she was after the order was made, by social workers (or been invited to a meeting with social workers) to discuss the proposed course of action before the order was sought.[86]I suspect that in many cases, (as in respect of emergency protection orders – see Re X and the X council case referred to above) the issue in adult welfare cases given their nature, the emotional issues involved and the positions and characteristics of the persons against, and in respect of whom, relief is sought will be as to whether there should be prior discussion as opposed to whether a letter before action should be sent or formal notice of the proceedings should be given.[87]In my view the conclusion reached by the local authority that Mrs S might seek to pre-empt a decision of the court by seeking to remove Mr S from the nursing home if she had been told of the view of the local authority that he should be placed at the K hospital was a reasonable one. Indeed in my judgment (by reference to the written evidence) it is much more likely than not that that is what she would have sought to do. Such a risk had been expressed by others concerned with the care of Mr S.[88]Naturally that conclusion relates to a prediction as to how Mrs S would have reacted. Although I accept that Mrs S is and was a person who respects the law and that she was in favour of Mr S being in a nursing home in my judgment(a) she was, and would have been, opposed to him being moved to a hospital even on a very temporary basis, and(b) rather than see him being so moved she would have wanted to have him home and done what she could to achieve this even though she was very aware of her own problems and difficulties in caring for him there. In my judgment it is much more likely than not that her strong character, her love for her husband and her sense of duty towards him would have caused her: i) to reject any suggestion that he should be moved to a hospital and to reach and strongly hold the conviction that he should return to her care at home, ii) to take immediate steps to try and get him discharged from the nursing home into her care, and iii) in taking those steps to act and express herself in emotional, demanding and strong terms both in and out of the presence of Mr S.[89]To my mind this would have been the natural human reaction of many in Mrs S’s position who have her character and determination. As I have said I and others have considerable sympathy for the dilemma she was in (and indeed with that reaction).[90]Whether she would have succeeded in taking Mr S home is a matter of speculation. But it seems to me that given the decision of the nursing home that Mr S must leave, and although it was not putting a time limit on that move which would have precluded prior discussion with Mrs S about it, it seems to me that the nursing home would have been keen to avoid argument and might well have co-operated in a move demanded by Mrs S. Even if it had resisted the move whilst an emergency application to court was made in my judgment the view of the local authority that the attempt to move him would have been distressing and disruptive to Mr S, and indeed to Mrs S, was correct and reasonable. Should the without notice order have been made on the evidence put in and having regard to the procedural safeguards put in place. The evidence[91]As for example Munby J points out in Re W and H those who fail in their duty of full and frank disclosure and who make misrepresentations in seeking without notice relief run the risk of being denied a continuation of, or further interim relief, on that basis. As appears later I accept that there are shortcomings in the evidence relied on by the local authority but in my view they fall short of establishing that this is a case in which the without notice relief should or could properly have been set aside and not continued on that basis.[92]Also I am satisfied that this is not on any view a case of wilful default. I am quite satisfied that the local authority was at all times seeking to make decisions and to act in a manner that would be most likely to promote the welfare of Mr S. I am also quite satisfied that this was Mrs S’s aim and motivation.[93]It is easy to criticise with the benefit of hindsight. However in my judgment some valid criticisms can be made of the evidence relied on by the local authority. I return to a consideration of the evidence and those criticisms.[94]The relief sought had two strands. First it facilitated the move to K hospital and second it related to contact.[95]The reason for applying without notice (i.e. the risk of pre-emptive removal, or an attempt to remove, Mr S) was essentially based on what I have referred to as the second theme of the evidence in support of the application and not on the third theme (namely the allegations of abusive behaviour). In my view it is important to remember this.[96]I shall consider the two strands of relief separately.[97]For essentially the same reasons as those which found my conclusion that the making of an application without notice was justified I am of the view that the without notice injunctions (and their continuation until December 2004) restraining interference with the move to the K hospital were warranted on the evidence.[98]In my view interim injunctions rather than only interim declarations were appropriate over that period because they address the point directly and do not give rise to problems of explanation as to the effect of declarations. Also, and in particular at the very early stages of the proceedings, in my view it is unclear why declarations which Mrs S felt bound to respect would have made any difference to the impact on her of the orders obtained without notice.[99]However having said that it seems to me that generally an order of this type should either recite that it appears to the court on the evidence that a particular placement is in the best interests of the relevant person (here Mr S) or contain an interim declaration to that effect. This is because this gives an explanation on the face of the order of a factor underlying the injunctive relief.[100]Having regard to the reference to an application relating to guardianship under the Mental Health Act in argument I pause to comment that orders relating to guardianship would not have addressed the immediate issue of restraining interference with the proposed move to K hospital which, as I have explained, was the only realistic short term solution and was therefore necessary and appropriate.[101]Mrs S criticises the second theme of the local authority’s evidence asserting that it gives an unfair and overly critical view of her actions and behaviour. There are disputed allegations as to those matters which I cannot resolve.[102]As this evidence is critical of her I can understand Mrs S’s personal reaction and I accept that there is justification in her criticism that this evidence expressly failed to give a full and fair picture and a proper balance indicating her side of the history, which is supported by the statements of others that she put in. But in my view she has considerably overstated her criticisms many of which flow from the accepted lack of a qualifying paragraph or paragraphs.[103]Further the report of the social worker to the independent social worker that is asserted by Mrs S to give a more balanced view supports the view that at times she has acted unreasonably and unjustifiably. Also in the February 2004 letter from a psychiatrist exhibited to the social worker’s statement that doctor asserts:
“Unfortunately the wife does not co-operate fully with his care at the Day Hospital, she is often rude to both Mr S and staff and makes vexatious comments about his care”
. As I have mentioned I am not in a position to make findings as to the unparticularised assertions in that citation but they are not the only record of similar views being expressed by persons outside the local authority who have taken part in the care of Mr S.[104]In my judgment any court reading this aspect of the evidence relied on by the local authority on the without notice application would not have reached the conclusion that all, or the majority of the complaints and actions of Mrs S were unjustified and unreasonable. Rather it would have appreciated that, given the nature and extent of the problems relating to the care of Mr S, the position was, or was likely to be, as Mrs S’s evidence (and the documents she refers to) demonstrate that many of her actions and complaints were justified, there were reasonable differences of opinion as to whether other actions and complaints were justified and reasonable, but that persons involved in the care of Mr S had in some instances correctly or justifiably regarded her actions and comments as rude and obstructive and her complaints as unfounded and unreasonable.[105]I add that when the papers are looked at as a whole it is strongly arguable that on a number of occasions(a) Mrs S did make unsubstantiated and unwarranted allegations against persons caring for Mr S and did act unreasonably and unjustifiably (or in a way that could be reasonably so perceived by carers of Mr S), and(b) she said things she regretted when to quote from her letter to the court “she went over the top”. That conclusion recognises that on a number of other occasions Mrs S acted justifiably and reasonably and thus the actions of others reasonably warranted criticism, and on other occasions there was room for reasonable differences of opinion as to the reasonableness of, and justification for, complaints and comments made and actions taken.[106]Thus although in my view the failure of the local authority to expressly give a more balanced account, or one that sets out what Mrs S would be likely to contend, merits criticism it seems to me that this failure did not give a materially misleading picture. Rather it seems to me that notwithstanding this failure any court reading this aspect of the evidence (in the context the evidence relied on in support of the without notice application and thus the other two themes of that evidence) would have approached the issues on the basis of an understanding that the situation and history accorded with the effective common ground and the placement options referred to earlier.[107]The second aspect of the relief granted goes wider. It prevents contact save as agreed by the local authority and provides for it to be supervised. The evidence does not say what contact is proposed. I do not know what the court was told as to what was proposed.[108]The evidence put before the court on 16 September 2004 asserts that:
“ reported abuse varies from Mrs S shouting at Mr S, threatening to put him away or to throw cold water over him and that she has also been seen by care home assistants to hit him. The statements show a pattern of systematic physical and emotional abuse. ---------- There have been increasing concerns that Mrs S is neglecting and emotionally and physically abusing Mr S”
These allegations are serious and if they are not correct they are very hurtful allegations. Particulars were not given of them and the reports referred to were not exhibited or provided until November 2004. Mrs S vehemently denies these allegations and explains that the report that she had been seen cupping her hands over Mr S’s forehead and mouth and then his throat to stop him singing out loudly was a signal she had developed over the years to calm him and that when doing this, she does not touch him.[109]In my view any court should, and would, have noted the lack of particularity. Further reading between the lines, or adding the context revealed by the statement from the social worker, the questioning reader with time for analysis would see that notwithstanding these serious assertions the local authority had not objected to Mr S being at home with Mrs S and there is no mention of any of these points being raised with Mrs S.[110]The papers now before the court reveal reported incidents that were clearly what was being relied on by the local authority in making those allegations. There are disputes concerning those allegations that I cannot resolve. I acknowledge that oral evidence relating to the incidents and the resolution of those disputes might found a different conclusion, but I record that in my judgment (on the basis of the written information and argument before me) those incidents do not merit the conclusions cited above from the social worker’s statement, namely of “systematic physical and emotional abuse” and “increasing concerns” of neglect and physical and emotional abuse.[111]These allegations are different in kind to those relating to the second theme of the evidence (albeit that some of that evidence relates to complaints made by Mrs S as to the conduct of carers of Mr S) and in my judgment this has the result that in contrast to the position in respect of the second theme of evidence the colour or overall flavour they give to the evidence relied on by the local authority is not “watered down” to any great extent by the court being able to read between the lines in the manner mentioned earlier.[112]I repeat that I acknowledge that these allegations and the dispute relating to them were never tested by oral evidence. I also accept that the local authority thought they were justified and its evidence was prepared quickly. But in my view in making them in the evidence relied on in the application for without notice interim relief (and indeed for the continuation of interim relief) in the manner that it did, the local authority acted in breach of its duties of full disclosure and fairness, and its conduct merits criticism because of: i) the lack of particularisation of the allegations and the failure to support them by an exhibit of the reports relied on, and the failure to expressly give a more balanced account of them (and thus, for example one that(a) deals with the manner in which the incidents were raised with Mrs S or why they were not raised with her and why in the light of them Mr S continued to be cared for at home, or(b) refers to the good aspects of her care of and relationship with Mr S and what the local authority thinks she would be likely to contend), and ii) the failure to explain the impact and the relevance of the allegations and thus why they were being made.[113]Both points are important. Particularisation and the inclusion of a balanced account was necessary to enable Mrs S (and the court) to know the case made against her. This is a general but important proposition particularly in respect of serious allegations.[114]Point (ii) is important for the same reason but also because in my judgment the application for all the without notice interim relief (and its continuation) that was granted was, and would have been, justified without any such allegations of abuse being made. In this context, and to its credit, I repeat that the reasons expressly given by the local authority for applying without notice did not refer to the allegations of abusive behaviour.[115]Given the nature of the allegations of abuse and the local authority’s belief that they were justified I accept that it would have been difficult and probably inappropriate to omit all reference to them from the initial evidence even if they were not being relied on at all at that stage. If this had been done a point might well have been made that they were not then considered serious if they were raised later. However and notwithstanding the pressures of time, their inclusion could, and in my view should, have been accompanied by an explanation of the reliance placed on them at the interim stage.[116]Potentially the allegations of abuse are relevant to problems relating to placement at home but it seems to me that the non viability of a return home was clearly made out without them and a fair reading of the evidence as a whole shows that they were not being so relied on, and that in this context(a) they were only potentially relevant as part of the history as seen through the eyes of the local authority, and(b) the position of the local authority was that they could become relevant because, for example if and when a return home was contemplated they could be relied on either to oppose it, or as a factor in determining the nature and extent of the support package. As I have recorded the allegations did not lead me to refuse to direct a trial period at home.[117]The position concerning contact is different and in my view a fair reading of the evidence as a whole is that the allegations of abuse were being relied on to support that relief. This is reflected (as is the support of persons outside the local authority to its position) that contact should be controlled by the view expressed by the psychiatrist in his exhibited letter dated 16 September 2004 (which oddly refers to Mr S as a ward of court) but also contains the doctor’s views that(a) Mrs S would oppose a move to the K hospital, and(b) that “it would be useful if Mrs S was required not to visit him there as she may be inclined to continue to verbally abusing (sic) him while he is under our care”.[118]Inappropriately, the extent to which the allegations of verbal and physical abuse were being relied on in respect of the relief sought concerning contact was not made clear.[119]I therefore ask myself whether these criticisms mean that the relief in respect of contact should not have been granted because, for example, it was disproportionate or not warranted on the evidence.[120]My answer is “no they do not” and in reaching that conclusion I record that I have had regard to what actually happened concerning notification of the orders, the move and contact.[121]What was sought and ordered was contact at times agreed by the local authority and supervised by it. I accept that this control is a considerable intervention and interference in the relationship between Mr and Mrs S and thus their family life. However (and particularly when it is remembered what happened) in my judgment it falls a long way short of a termination of contact and a refusal of visits (which on one view is what the psychiatrist was recommending).[122]In my judgment the restrictions both as to time and supervision were warranted and proportionate on the basis of the first and second themes of the evidence (and thus if the third theme is disregarded) relating to the likely opposition to, and reaction of, Mrs S to a proposed move to the K hospital. In this context this evidence (and the picture it gives of the effective common ground) needs to be considered on the basis that Mrs S has been restrained from preventing or seeking to prevent a move to the K hospital. On that basis, in my judgment that evidence (and the effective common ground referred to earlier) warrant the view that the restrictions on contact put in place(a) promoted the best interests and welfare of Mr S, and(b) were a proportionate interference with the family lives of Mr and Mrs S because they were reasonable measures to avoid the risk of harm to Mr S (and indeed distress caused to both Mr and Mrs S) arising by reason of Mrs S objecting to and criticising the move to the K hospital in unjustified and rude terms and in an emotional manner.[123]I add that in my judgment on the evidence relied by the local authority (and the effective common ground referred to earlier), in line with my conclusion relating to her likely course of action if she was not restrained from interfering with a move to the K hospital (see paragraph 87), the view that she would react in this way was a reasonable one and indeed in my judgment (by reference to the written evidence) it is much more likely than not that that is what she would have done. My comments in paragraphs 88 and 89 also apply.[124]I have reached the above conclusions ignoring the existence of the allegations of abuse. If such allegations had been included in a properly particularised and balanced way and relied on to support the order as to contact they would have provided such support on the basis that it was acknowledged that they were disputed and (so far as I am aware) had not been relied on earlier to limit contact, or to preclude a placement at home.

Procedural safeguards

[125]I have already dealt with and mentioned the failure to join Mrs S as a party and timing points in paragraph 22 hereof.[126]In my view given the nature and extent of the intervention and interference in the lives of Mr and Mrs S the order made without notice should have provided that Mrs S had permission to apply to discharge or vary it immediately or forthwith but, if practicable on 2 working hours notice to the local authority. This is because in my judgment a without notice order of this type should not direct or imply that an application to vary or discharge it cannot be made other than on 48 hours notice because those against, and in respect of, whom it is made should be clear that they can be heard more quickly.[127]I do not know what was said to the court concerning the intentions of the local authority concerning service and explanation of the orders, the proposed move of Mr S and contact (see paragraphs 16 and 64). In my judgment if the court was not told about this it should have been, and what was intended should have been recorded in a document provided to the court (or to be provided to the court) and the order should have recited, or referred to, the document or to the point that the court had been informed of the intentions of the local authority as to such matters and where those intentions were recorded. Again this is because of the nature and effect of the orders made. In my judgment the interference and intervention in the lives of Mr and Mrs S occasioned by the orders meant that the court should not simply have left such matters to the local authority but should have ensured that what was intended was stated and recorded. I accept that given the statutory duties of the local authority and the potential need for flexibility on the ground it would not have been appropriate to go beyond a statement of intention.[128]I deal with the cross undertaking in damages later.[129]In my judgment these points relating to procedural safeguards do not lead to a conclusion that the substantive orders should not have been made.

Breach of Human Rights

[130]In the evidence Mrs S raised points based on Article 5 in respect of the treatment of Mr S in hospital. These were not pursued in argument.[131]Also, and in my view correctly a separate argument was not pursued in reliance on Article 6. Rather the argument was based on both the substantive and procedural aspects of Article 8. Naturally I accept that both of those aspects exist. However I do not accept that taken together or individually they required that the first hearing in September 2004 should have been on notice as asserted by Mrs S.[132]On the substantive aspects I accept that the orders amounted to a significant and substantial interference with the family life of both Mr and Mrs S, but I do not accept that a close analogy with the position with cases concerning the removal of a new born child from its mother (for example Re M (care proceedings: judicial review) [2003] EWHC 850 (Admin) was relied on) is appropriate. Thus I do not accept that by analogy “extraordinarily compelling” evidence was needed to found the relief sought.[133]That of course does not mean(a) that both the grounds relied on and the evidence put before the court to support them did not have to satisfy the tests set by Article 8 as explained by authority, or(b) that the aspects of family life engaged in this case are not important ones that should not be interfered with lightly (and thus without good grounds for doing so being demonstrated), or(c) that procedural fairness should not be observed.[134]It however should be remembered and recorded that the relief sought was not, as at times was submitted or implied by the submissions, a removal of Mr S from home or a complete prevention of contact between Mr and Mrs S, or indeed an order that Mr S should be prevented from returning home in the short to medium term. Rather(a) Mr S had been placed in a nursing home with the consent of Mrs S, that nursing home was not prepared to keep him and the only realistic immediate and interim placement was at the K hospital, and(b) the relief sought related to the move thereto and to regulated and supervised contact.[135]It is also important to remember that the local authority visited Mrs S to serve her with the orders made and to explain them, and that such contact was put in place immediately. The local authority also on that visit assisted Mrs S to speak to a friend and accompanied her to the nursing home so that she could be present during and immediately after the move.[136]The adoption of an approach that is procedurally fair is an important aspect of both the right of a person to respect for his family life and home and the proviso to that right contained in Article 8 (see for example The Moat case at paragraph 102). This is also confirmed in a number of cases relating to children. Correctly Mrs S primarily relies on this aspect of Article 8 to found her argument that by making of the application without notice in September 2004 the local authority acted in breach of Article 8.[137]In my judgment, for essentially the same reasons as found my conclusions set out earlier that the without notice application and the relief sought and ordered on it were warranted, both as matters of procedure and substance I have concluded that a fair and proportionate application of Article 8(2) has the result that the initial interference on a without notice basis (and its continuation) by the local authority and the court in the exercise of the rights conferred by Article 8(1) on both Mr and Mrs S by the interim injunctions and orders was justified.[138]I therefore conclude that the claim advanced before me that the human rights of Mrs S (and Mr S) were breached fails and it follows that no question of the award of damages for such breach arises.

Cross undertaking in damages

[139]No such undertaking was offered or required. Here the local authority was performing a statutory function and in my view the general approach set out by the House of Lords in Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1992] 3 WLR 170 applies. Thus the court had a discretion to require a cross undertaking in damages.[140]The general practice in the Family Division of not automatically or generally requiring a cross undertaking in damages is recorded and explained by Munby J in W v H (cited earlier). That practice differs from the general practice in other Divisions but it has been applied in cases concerning adults who lack capacity to make relevant decisions in which relief is sought in the Family Division in reliance on the inherent jurisdiction.[141]It was argued that if a public authority is to be excused from giving a cross undertaking in damages in a situation where fundamental rights are affected it is encumbent on the public authority (as the applying party) to ensure that all procedural safeguards are in place. That is a general assertion. In my judgment it is flawed because I consider that as a general proposition in respect of cases of this type brought by a public authority the cross undertaking in damages should not be offered, or required, as a substitute for requiring compliance with such proper procedural safeguards.[142]Understandably the argument before me did not extend to cover: i) the inter relationship or overlap between a possible claim for damages for a breach of Convention rights by a public authority, and one under a cross undertaking in damages, and thus ii) the effect of that, and the existence of the possibility of a claim for damages for a breach of Convention rights, on the exercise of the discretion to require a cross undertaking in damages from a public authority.[143]General comment or guidance as to whether a cross undertaking in damages should be offered or required from a local authority in cases such as this one is thus outside the scope of the argument I heard and the ambit of this judgment. However I record that my preliminary view is that, as Munby J concluded in W v H, there should be no rigid rules but that the mix of(a) the statutory role of a local authority in cases of this type,(b) the point that the proceedings relate to family situations and decisions based on welfare,(c) the point that interim orders are likely to have emotional effects,(d) the likely need for, and the advantages for the welfare of the relevant person of, the parties in the proceedings taking an investigatory and co-operative approach, and(e) the potential for a claim in damages based on a breach of Convention rights, will support the result that in most cases of this type (i) the court should require strict compliance with the duties of an applicant and the procedural approach and safeguards relating to a without notice application, and (ii) a cross undertaking in damages would not be required.

Postscript

[144]In reaching my conclusions as set out above I have not forgotten that in December 2004 the injunctive relief and the restrictions on contact were discharged and that in January 2005 I directed that there should be a trial period at home.[145]By reference to those points and the general attitude of Mrs S during the proceedings it was argued on her behalf that, if she had been notified and consulted before the without notice relief was sought, she would have engaged in constructive discussions which would have rendered an application for without notice relief unnecessary, even if they had not avoided the need for court proceedings.[146]Naturally there is speculation involved in that assertion because it relates to a prediction as to what would have happened if a different course had been taken.[147]As is apparent from the conclusions I have reached, and in line with my conclusion set out in paragraphs 79 and 80, in my judgment the evidence relied on by the local authority in support of the without notice application (and the effective common ground based on that evidence and the evidence put before the court during the course of the proceedings) demonstrates that the prospects that such notification would have led to constructive discussions between Mrs S and the local authority which would have resulted in agreement as to the immediate and short term placement of Mr S either without any court involvement, or over the period leading up to an urgent court hearing on notice, were small.[148]Indeed on the written evidence, and having regard to the course of the proceedings, in my view it is far more likely than not that no constructive discussion would have ensued and no such accord would have been reached.[149]By that stage (i.e. when the nursing home made it clear that Mr S had to leave) I repeat that I consider that court involvement was necessary and inevitable and that(a) the changes, the work done, and the representation of Mrs S after proceedings were issued, and(b) the involvement of the court as the decision maker, were major factors leading to the accord reached in December 2004. In this context in my view counsel for Mrs S was right to recognise, as she did, that as a matter of historical fact the progress that was made followed the grant of legal aid and the representation of Mrs S.[150]Sadly, in my view on the written evidence the position that had been reached when the nursing home made it clear that Mr S had to leave was that it was likely (and reasonable for the local authority to conclude) that as soon as the proposed move of Mr S to a hospital was raised with Mrs S that she would be upset and distressed and would act in accordance with the conclusions I have set out above. As I have said in my view that would have been an understandable reaction and the conclusion that it was likely is supported by Mrs S’s immediate reaction to being informed of the orders made without notice.[151]The written evidence, and that reaction, also demonstrate and support the conclusion that the local authority were faced with a dilemma that whatever approach it took to seek to promote what it believed to be the course that was most likely to promote the best interests of Mr S (namely a move to the K hospital) would result in upset, distress and an emotional reaction by Mrs S. Overall conclusion and lessons to be learnt Overall conclusion

Overall conclusion and lessons to be learnt

[152]Looked at overall, for the reasons I have given, and notwithstanding the criticisms of the local authority set out above, I have concluded that taken together: i) its decisions to seek without notice relief of the type that it did, and ii) the manner in which it informed Mrs S of that relief and implemented it, constituted a reasonable and proportionate approach by the local authority to promote the best interests of Mr S.[153]Indeed, it seems to me that it was the approach that was most likely to minimise both the immediate distress and upset to Mrs S and the likely harm that her likely reaction to a move of her husband to the K hospital would be likely to cause to Mr S. This is because it enabled that move to take place against the background of court orders rather than against a background of distress and opposition to the move followed by an order made on short notice against an elderly lady facing an emotionally daunting dilemma. As I have said in my view the prospect that an accord would have been reached by discussion and without court intervention was low. Thus in my view court intervention and orders were necessary and the orders that were made would also have been made if the first application had been on notice.

Lessons to be learnt

[154]The benefit of hindsight in this case to my mind indicates that detailed discussion with the nursing home to ascertain its precise stance if Mrs S had been notified of the proposed move before relief from the court was sought might have produced helpful information and should therefore have been considered and pursued. Having said that I hasten to add that on the written evidence it seems to me unlikely that such a discussion would have resulted in a decision that Mrs S should be notified before relief was sought or granted. But it might have resulted in her being faced with a situation, agreed to by the nursing home, under which the proposal was that Mr S would not be moved for say another day (or perhaps two) to enable her to apply to the court to vary or discharge the order. I acknowledge that this would have put her in a difficult position, for example in obtaining representation or assistance, but the situation was urgent.[155]Further, as appears earlier, I consider that if in such circumstances Mrs S had made an application to vary or discharge the orders it would not have been likely to succeed in producing a result different to that achieved by the orders made and the manner in which they were implemented by the local authority. This is because the nursing home was not prepared to keep Mr S and the proposed move to the K hospital was in my view the only realistic immediate and short term option. Also a return home from there was not likely to be any more difficult than one from the nursing home (or another nursing home).[156]However in other cases the giving of such an opportunity to persons, against whom, and in respect of whom, an order is obtained without notice to apply to discharge, or vary, it before a proposed step is taken may be an appropriate course for a public authority and the court to adopt. This may particularly be the case when it would be difficult to restore the position to the one that existed before a change supported by the without notice order is made. An example could therefore be a move from a nursing home. In such a situation, and even if the nursing home was adamant that the adult who lacked capacity must leave, it could be thought that without notice relief would promote the minimisation of distress to the relevant adult who lacks capacity from the immediate reactions of family members who oppose the proposed move, but that fairness and the correct balance would be promoted by those family members having an opportunity to put a different solution to the court before the proposed move took place.[157]These comments reflect an approach that recognises the exceptional nature of without notice applications and relief, and has regard to the issue as to how a proposed course of action can be best and most fairly implemented having regard to the competing interests involved. In my view they also demonstrate that having regard to those interests (and in particular the welfare of the relevant adult, the interference with his right and that of others to respect for their family life and the interests of persons against, and in respect of, whom an order is made to be heard) in cases of this type consideration should be given to the manner in which the course of action to be supported by the without notice relief is to be implemented and the likely effect of what is proposed on realistic alternatives that might be urged by interested persons.[158]More generally this case is a reminder of: i) the exceptional nature of an application without notice, and thus the need for recognition of the general starting point that persons against whom, and in respect of whom, orders are sought should be given the opportunity to be heard and thus that an exception from that approach needs to be demonstrated and justified, ii) the need to comply strictly with the duties imposed in respect of the evidence put before the court and the procedural and other guidance relating to without notice applications, including the matters referred to in paragraphs 37 to 43 hereof, iii) the need to consider how the proposed course of action will be implemented and thus the intentions of the relevant public authority, and to ensure that the without notice relief sought is no more than is required before the persons against whom and in respect of whom, it is made are given the appropriate opportunities to be heard, and iv) the vulnerability of an elderly spouse or other family member whose right to respect for his or her family life is affected by the orders sought and, having regard thereto, the need to consider whether(i) without notice relief should be applied for and granted, and(ii) the procedural steps and safeguards that should be put in place in connection with the proposed course of action and the orders made.

Cited in 8 later judgments