LLBC v TG [2007] EWHC 2640 (Fam)

[2007] EWHC 2640 (Fam)

Case No FD06P01178

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/11/2007

Before

Mr Justice McFarlane

Between

LLBCClaimant

TG [1]Defendants

(by his litigation friend the Official SolicitorDefendant

JG [2]Defendant

KR [3]Defendant

Stephen Knafler (instructed by LLBC) for Claimant

JG and KR appearing in person for in person

Helen Knott (instructed by WLBC)

Katie Scott (instructed by Official Solicitor) for First Defendant

Hearing Hearing dates: 10 th September 2007, 11 th September 2007, 12 th September 2007, 13 th September 2007, 14th September 2007

FINAL JUDGMENT

THE HONORABLE MR JUSTICE MCFARLANE

This judgment is being handed down in private on ............. It consists of ....... pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

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.has been emailed to you it is to be treated as ‘read-only’.You should send any suggested amendments as a separate Word document.

Mr Justice McFarlane:

Introduction

[1]These proceedings relate to the best interests of TG, who was born on 15th July 1929 and is therefore aged 78 years. Sadly, in recent times, Mr G’s health has not been good and, in particular, he suffers from dementia and cognitive impairment. His decline also follows a stroke in 2001. From some time in mid 2003 TG had been resident in a care home, namely the L Care Home. That placement was terminated by the care home staff giving notice in March 2006. However, before the authorities could find an alternative home for TG, he contracted pneumonia and septicaemia and was admitted to St George’s Hospital on 3rd May 2006. Whilst TG was in hospital there was a dispute between the claimant local authority and two family members, JG and KR, as to his future care. JG is one of TG’s daughters and KR is her daughter. These two ladies put themselves forward as carers for TG on the basis that he would come to live with them once he was well enough to be discharged from hospital. TG had not previously lived with JG and KR and, for various reasons to which I will refer in due course, the local authority considered that TG was not best placed in their care but required 24 hour care in a residential home. A place in such a home, T Care Centre, was found for TG, but, before the local authority had achieved TG’s placement there, he was discharged by the hospital to the care of JG and KR on 19th June 2006.

[2]These proceedings were commenced on 20th June 2006 when the claimant local authority applied to me as the ‘urgent applications judge’ at a without notice hearing for orders designed to achieve TG’s transfer to the T Care Centre. On that date I made without notice orders requiring JG and KR to deliver TG to the T Care Centre by 2.00pm on 21st June. That time frame was extended by a further 24 hours under an order made the following day by Black J. Both orders made it plain to legally trained eyes that JG and KR had liberty to apply to the court to vary, discharge or set aside the order, and, in particular, the order of the 21st June specified the precise court to which they could make such an application prior to noon on the 22nd June. No application to set aside the order was made and JG and KR complied with the orders and caused TG to be delivered to the T Care Centre on 22nd June 2006.

[3]Since that time these proceedings have continued by way of interim hearings, the most significant of which took place on the 16th March 2007. At that hearing I made final declarations as to TG’s capacity to make decisions for himself as to his care and residence. At that hearing also, the court set in train a process by which TG started to spend time staying for short periods with JG and KR on a trial basis. Those trial visits went well and in May 2007 he moved to live with them full time pending the present hearing.

[4]JG and KR have played a full part in the many interim hearings that have taken place and have regularly communicated with the court and the parties during the period between hearings. In court they have represented themselves (save for on the occasion of the first hearing when they were represented by solicitors and counsel) and have had the support in court of the Personal Support Unit.

[5]The care provided by JG and KR, with some external additional support, has proved to be good and it is now accepted by all parties to these proceedings that TG’s best interests will be served by remaining in the care of JG and KR for the foreseeable future. Given that the progress of his condition involves periods of deterioration which then establish a new, lower, level of functioning, it is accepted by all parties that should there be any further deterioration, the care plan, and the family’s ability to provide for his needs in those worsened circumstances, will have to be reviewed.

[6]The claimant local authority is the local authority [LLBC] for the area in which TG was living at the time that he was first admitted to a residential care home. JG and KR live in a different local authority area, WLBC. WLBC have been party to the more recent hearings in this case and accept that they will now take on responsibility for overseeing the health and welfare of TG who is a vulnerable adult now living in there area. WLBC has carried out its own comprehensive assessment of TG and his needs, together with the ability of JG and KR to provide for those needs. JG and KR anticipate that they will be able to work with WLBC in a way that has not been a feature of their relationship with the claimant local authority.

[7]Thus, at the conclusion of these proceedings, there is a wide measure of agreement as to the detailed care plan for TG and, subject to some judicial input as to the wording of any declarations as to best interests that are to be made, that area of the case is no longer controversial.

[8]What has always been, and remains, controversial between JG and KR and the claimant local authority is the need for proceedings to have been issued in the first place and, in particular, the without notice orders that were made requiring TG to be placed in a care home rather than remaining in the family’s care. Despite the fact that there is a large measure of agreement as to the outcome of the case, I have permitted JG and KR to raise the issues that they wish to raise in relation to these controversial matters. They do so by way of complaints in general, but also in couching these complaints in terms of breaches of the rights that they and TG may have under the European Convention on Human Rights, in particular Articles 5, 6 and 8.

[9]I will shortly list the key issues raised by JG and KR, before rehearsing the evidence in relation to each issue and, in due course, setting out my conclusions. Before doing so it is right to record that a theme will readily be detected as running through much of the evidence and many of my conclusions. That theme relates to the failure on the part of the professionals, on the one hand, and the family, on the other to communicate with each other throughout this process. This failure to communicate, the responsibility of which is shared, in my view, by both the professionals and the family, directly led to the claimant’s decision to instigate these proceedings and to the confrontational, and at times largely intractable, circumstances thereafter. The adverse effect of this bilateral failure upon TG’s best interests is, to me at least, obvious. The Issues (1) The issues placed before the court in June 2006

[10]In its Part 8 claim form the local authority raised the following matters of concern about TG’s placement with JG and KR (i) Their accommodation was unsuitable, being a one bedroom flat; (ii)The claimant believed that TG returned from visits with JG and KR in a volatile state as a result of having been fed sweets, fizzy drinks, and crisps; (iii) TG, it was said, needs a much higher level of support than that which can be provided by JG and or KR; (iv) JG and KR removed TG from hospital on the 19th June 2006 and took him to their home. (2) Subsequent issues

[11]As the proceedings have developed, the focus of the claimant’s case against the family has shifted away from those earlier stated concerns, to a more generalised allegation that JG and KR’s personality and presentation is such that it is not reasonably possible for them to work with the social work and other professionals who must be involved in assisting them to provide care for their father/grandfather. The claimants now see this as the most important adverse element in the case. JG and KR complain that it has been brought into the proceedings to bolster the claimant’s case unfairly as it was not part of the original claim.

[12]A separate matter that has also achieved prominence since the proceedings began relates to the administration of TG’s finances. Questions have been raised as to how TG’s money, both income and capital, has been spent by JG and KR. Some family members have alleged, in terms, that JG and KR’s motive for having TG in their care is so that they can obtain access to his funds for there own benefit. (3) Human Rights Issues

[13]In summary JG and KR’s case in relation to the ECHR is that: a) TG was unlawfully detained in breach of Article 5 as a result of the court orders requiring him to go to and remain at Tower Bridge care home; b) That the proceedings have been conducted in such a way as to breach the family’s rights to a fair trial under Article 6; and c) That this forced separation of TG from these family members has been in breach of his, and their, Article 8 rights to family life.

[14]I now propose to look at each of these set of issues in turn. [1] The basis of the case in June 2006.

[15]This is a very important aspect of the case. It goes to the root of JG and KR’s complaints, and, indeed, their attitudes to the claimant local authority, and, at times, the court.

[16]JG asserts that the local authority had no right to bring this case against herself and KR. More than once she has asked ‘where is the evidence that started these proceedings’. The family are entitled to have a full investigation of the evidence in this regard. The central focus of that investigation in these proceedings has been upon the draft Part 8 claim form and the affidavit of the social worker, PJ, which were presented to this court at the hearing on 20th June 2006. There is a transcript of that court hearing which shows that the court was keen to understand what the level of urgency was and why it was necessary to proceed without notice and without the attendance of JG and KR.

[17]The essential points being raised by the local authority on 20th June were: a) A full ‘mini mental state examination’ was not carried out in September 2005 owing to the conduct of JG and KR; b) TG had been in residential accommodation since July 2003 and the owners of his previous home, L Care Home, had terminated the placement owing to the conduct of JG and KR who were verbally abusive and threatening to the staff; c) In May 2006, during TG’s stay in hospital, he was assessed by social services and the medical staff as requiring 24 hour care in a nursing home; d) ‘At about 2.00pm on 19th June JG and KR took TG from St George’s Hospital’ to their home (later described as ‘removing him’ from hospital); e) JG and KR live in a one bedroom flat ‘which is clearly not suitable’ for them to occupy with TG; f) TG has complex care needs; g) ‘Most problematic’ TG’s diabetes requires careful control and his blood sugar level requires regular testing. TG’s behaviour and very high blood sugar levels have been observed when within the care of TG and KR and it is understood that they fed him with sweets, fizzy drinks and crisps; h) All in all the claimants considered that TG was at risk of ‘serious harm’ in the care of JG and KR.

[18]I now propose to look at the evidence in relation to each of these allegations in turn. (a) Unable to carry out a ‘full mini mental state examination’.

[19]In a letter from Dr Silverman (the psychiatrist then involved) in September 2005 it is said ‘I did not attempt a full mini mental as I had had a long and fairly emotional discussion with the family.’

[20]A ‘mini mental state examination’ involves, on the courts’s understanding, asking a dozen or so questions about basic facts, general knowledge, objects and tasks.

[21]Dr Silverman has not been called to give evidence and there is no other material from her in relation to this topic other than the letter. In my view the fact that there was ‘a long and fairly emotional discussion with the family’ does not support the more pejorative allegation that JG and KR’s ‘conduct’ prevented the doctor from carrying out the assessment.

[22]In the event, the papers that are now available show that a ‘mini mental state examination’ was carried out on TG in May 2006 when he was in hospital. The court on June 2006 was not told of this. In the circumstances I find that the evidence to support the assertion made in this regard in the claim form does not in fact do so. (b) L Care Home terminated TG’s placement as a result of JG’s and KR’s conduct

[23]On 10th March 2006 the proprietors of the L Care Home, Excelcare, wrote to the local authority [B.84]. The relevant part of the letter is a follows: ‘The reason for the requirement is that a considerable period of effort and time has been unsuccessfully spent attempting to meet the expectations of this family. The numerous complaints and concerns from his family are proving detrimental to our service users, visitors to our home and morale and effectiveness of our staff group. We have over the last two months tried to arrange a multi-disciplinary meeting with relevant stakeholders to discuss our growing concerns but to our disappointment, although all concerned are aware of the continuing care problems caused by the conduct of the family, no meetings have been agreed’.

[24]In evidence at these proceedings the local authority asserted that this letter came to them out of the blue, and that prior to receiving it they were unaware of any concerns. This assertion (by PJ in evidence) is at odds with the reference in the letter to attempts to arrange multi-disciplinary meetings. If the letter is correct, it is highly regrettable that, for a period of two months, social services failed to agree to such a meeting. This is the first example of a failure adequately to communicate between agencies and the family that might have alleviated the difficulties and averted bringing them to the head that they had reached when the letter was written.

[25]The local authority, in turn, sent a letter to the family on the 27th April explaining that Excelcare had terminated the care placement because of the family’s conduct. In fact, no evidence has been provided to this court from the L Care Home. The assertion that their conduct had caused any difficulty is challenged by the family. No written material has been produced that substantiates the allegations of ‘threats and intimidating behaviour’ that were relied upon by the claimant in June 2006. Even the letter from Excelcare quoted above does not support the claimant’s case in using those terms.

[26]That being said, this general allegation needs to be seen in the context of all the other evidence that is available to the court of the confrontational and challenging behaviour of JG and KR, to which I made extensive reference in the judgment of March 2007.

[27]I do not seek to reproduce paragraphs 26 to 33 of the March judgment. The following extracts drawn from that section should suffice to describe the character and quality of the evidence on the issue of JG and KR’s approach to professionals:

‘The papers in the bundle show that JG is a highly confrontational individual and that she has been critical of each and every professional that she has encountered in relation to Mr G’s care.’ ‘… the whole tenor of her written presentation to the court and to the professionals and her oral presentation in court is of an angry and confrontational individual. The members of the family who gave evidence … indicate that that aspect has always been part of JG’s personality and presentation. PJ, the seasoned social worker, who gave very measured and sympathetic evidence to the family’s position, nevertheless told me, and I accept, that some professionals feel physically threatened by the ferocity of JG’s speech.’ ‘PJ [social worker] … said that JG needs to get her point across without being seen as argumentative and abusive. The impression that any professional is likely to gain from JG’s current presentation is one of unrelenting and forcefully expressed criticism. It will be very hard work for professionals to work with her.’

[28]Given the weight that is now put upon this aspect of the claimant’s case, it is highly regrettable that they took no step by way of witness summons or other direction to achieve first hand evidence from L Care Home as to the family’s conduct in 2005 and early 2006. As a result it is not possible to make any findings of detail save to say that, insofar as this allegation fits the general behaviour and presentation of JG and KR, it must, on the balance of probabilities, be seen to be established in the general terms used in Excelcare’s letter. (c) Assessment showed that TG requires 24 hour nursing home care.

[29]The written assessment is in the bundle and does indeed conclude that TG required 24 hour residential home care. Apart from JG and KR no other family members were putting themselves forward. In April or May 2006 JG and KR had presented themselves as potential carers for TG. The evidence shows that the local authority offered to conduct an assessment of their abilities as carers. The local authority asserts that an appointment on the 13th April for Bernard Hoffman to conduct this assessment was made but was cancelled by JG because she had not received a letter explaining the assessment process. Be that as it may, it is accepted that no further assessment of the family was either offered or arranged. PJ in evidence said ‘we had not assessed JG and KR as potential alternative carers. There was so much happening in the case at the time that assessing the family as carers had slipped down the priority list.’

[30]That candid admission by PJ is typical of the measured and straightforward evidence that she gave to the court and is, in that regard, to be welcomed. However, the fact that the assessment of the option of a family placement was not given priority is a matter of concern. Placement in the family should be at the top of any priority list before alternative non-family placements are considered.

[31]There has now been a thorough assessment process, as a result of which all accept that TG should be placed with JG and KR. Consequently, the fact that the original assessment was not given proper priority in this case, has, in my view, had a real impact upon the care arrangements for TG; it was neither an empty or nor an academic issue.

[32]Why, then, did no assessment take place. Having looked at the limited available evidence, my conclusion is that this was in part due to a failure of communication between the local authority and JG as to what was involved and why the assessment was taking place. This failure is not to be seen as all the responsibility of the local authority. Both the Official Solicitor and the Court experienced very substantial difficulties in engaging JG and KR in the expert assessment process once these proceedings had commenced. It was only after one last chance was given to them in January of this year, that the two ladies consented to meet the social work and psychiatric experts. This court certainly does not underestimate the difficulties involved for the social workers in seeking to engage JG and KR prior to the proceedings. I am keenly aware that a failure to communicate may involve failure to receive information as much as it may involve failure to achieve effective transmission.

[33]Before a local authority seeks to invoke the court’s powers to compel a family to place a relative in a residential care home, the court is entitled to expect that the authority will have made a genuine and reasonable attempt to carry out a full assessment of the capacity of the family to meet the relative’s needs in the community. LLBC’s failure in this regard was, in my view, significant. Their actions fell short of what both the family and the court were entitled to expect.

(d) TG’s discharge from hospital

[34]The claim form asserts that JG and KR ‘took TG home from St George’s hospital’. The transcript for 20th June shows that the local authority informed the court that ‘they took him from the hospital’. PJ’s statement, which was also available on 20th June, in fact states ‘they insisted on him being discharged home and the hospital agreed and they left the hospital at 2.00am’.

[35]The evidence produced at this hearing by JG and KR and their witnesses LL and JaG describes an altogether different process. Those four ladies attended the hospital on the morning of the 19th June having been invited to do so by the hospital authorities in order to take part in a meeting at which it was anticipated that the social worker would be present. The purpose of the meeting was to try to resolve the apparent impasse as to where TG would go on discharge from hospital. When the social workers failed to attend, hospital staff made contact with them only to be told that they would not be attending, but would be seeking legal advice with a view to obtaining orders from this court. When, by lunchtime, no such orders had been obtained or notified to the hospital, the hospital invited the family to go to their home, which they did. Shortly afterwards TG was discharged from hospital to the family home in an ambulance.

[36]The local authority has informed the court that nothing has been done to obtain evidence from the hospital as to the circumstances of the discharge for consideration at this hearing. It had not been considered to be a pressing issue by the local authority as, in its view, the issue had not been raised by the parties or flagged for determination at the final hearing. With respect to the claimant, that position is hard to understand. The assertion that the family had taken TG from the hospital on the 19th June goes to the basis of the original claim and the orders that were made by me on that day. At an early stage in these proceedings the defendants filed their evidence from LL and JaG which expressly challenges the local authority account. At every hearing the family have protested that the basis of the original order was not made out. Indeed, at many hearings they have brought their witness LL, whose only role in the case is to talk about those very events. It is therefore difficult to understand how the Claimant can have concluded that this was not to be a factual issue at this hearing.

[37]The account given of the family unilaterally removing TG from hospital was an important factor in persuading this court to make the order that it did on 20th June. It turns out now that the balance of the evidence is plainly in favour of the defendants account. I therefore find as a fact that: i. The hospital did indeed call a meeting at which the family and the social workers were expected to attend to resolve the impasse; ii. The social worker did not attend, but, instead, opted for court action rather than discussion; iii. In the event no attempt was made to apply to a court for an injunction that day; iv. The hospital asked the family to go home and await TG’s arrival. He was then discharged by the hospital in an ambulance to the family home. v. This was an entirely lawful activity and presents the events of that day in an entirely different light to that given to the court on 20th June.

[38]The fact that the social workers understanding at the time may have been different from the findings that I have just made is some explanation, but there is a duty on social workers to check the details of important allegations that they are intending to bring before a court, in particular at a without notice hearing, where they seek Draconian orders against a family. It is profoundly unattractive for the claimant, having raised this matter prominently as part of its claim, and knowing how controversial the issue was with the defendants, to fail to marshal (if necessary by witness summons) evidence from the hospital. (e) TG, KR and JR all living in a one bedroom flat.

[39]PJ’s statement of 20th June says ‘it is the council’s view that the current family home is unsuitable as it is a one bedroom council flat’; this assertion is repeated in the claim form. In fact, the accommodation is a two bedroom property which is now accepted as being suitable for TG and in which he has had his home for the past five months. On being asked about this point in evidence, PJ’s response was that the reference to a one bedroom, as opposed to a two bedroom, flat was simply ‘a typo’.

[40]The transcript for 20th June shows that this factor was particularly noted by the court. ‘Typo’ or not, the local authority inflated this assertion into one that became one of the major planks in favour of the granting of a without notice order. There is a world of difference between the concept of this elderly, infirm and vulnerable gentleman going to live with the two female claimants in a one bedroom flat and the reality of the situation that actually existed on the ground. At a without notice hearing the former would have been likely to be, and indeed was, viewed by the court as an untenable arrangement. (f) TG has complex care needs

[41]TG undoubtedly has a number of different conditions and, to that extent, his resulting care needs are ‘complex’. They are, however, not such as would rule out placement in an ordinary home in the community. The passage of the last five months has proved that this is so. That being said, this factor alone was not a prominent part of the claimants case on 20th June or at this hearing.

(g) TG’s diabetes

[42]The local authority told the court on 20th June that the family fed inappropriate food and drinks to TG ‘despite being asked not too’ and ‘despite a number of requests from the care home they fed him inappropriately’. The local authority asserted in June 2006 that ‘the best evidence that we can provide is that, on a regular basis he was taken out of the home, fed inappropriately and returned in an altered state, which is obviously damaging’.

[43]No evidence has been produced to this court that this issue was ever raised with either JG or KR by either the social workers or the care home. PJ assumes that the care home would have raised the issue, but accepts that there is no record of them ever doing so. PJ herself was aware of the issue, yet did not raise it with the family. PJ says that she and other workers had the intention of raising it with JG, but whenever they were in conversation with her, the conversation was driven by the family’s agenda onto other topics. Having observed JG on many occasions I can well appreciate that that was the case and do not underestimate the difficulty in communicating with both JG and KR. However, the assertion to the court in June 2006 that they continued ‘despite being asked not too’ was not unimportant, yet, like the assertion that TG had been removed from hospital, it has not been substantiated at all in evidence.

[44]In evidence PJ confirmed that the family had had training in diabetes in recent times and TG’s condition has now improved so that there are now no concerns in this regard. His diabetes is, indeed, more stable now he is in JG’s care than it was in the care home.

[45]If, as it was being presented on 20th June, this was one of the most pressing concerns of the local authority, then the consequences of the failure to communicate effectively with the family on the topic are now plain to see. There was no reason for this actually to be a problem, or a continuing problem. Subsequent history has shown that JG and KR are more than capable of understanding the need to monitor and control his sugar levels. Yet this factor became another of the primary reasons why proceedings were commenced and the interventionist orders were made. Justification for ‘without notice’ process and orders in June 2006

[46]Having now considered each of the key elements in the Claimant’s case as it was presented to the court in June 2006, the result in summary form is as follows: i. The claim that the family’s conduct prevented a ‘mini mental state examination’ being carried out is not made out; ii. The claim that the L Care Home placement was terminated as a result of JG’s and KR’s conduct is made out only in the general sense that such an allegation is supported by the overall view of the approach of those two ladies to professionals that is in part the subject of the court’s judgment in May 2007; iii. The claim that the assessment of TG’s needs showed that he needed 24 hour care home care is fundamentally flawed by the Claimant’s admitted failure to prioritise an assessment of JG and KR as alternative carers. However, JG and KR’s subsequent failure to engage in the court’s assessment process calls into question whether, if it had been properly offered, they would have engaged in the assessment process; iv. The important claim (in the context of an urgent without notice application) that JG and KR ‘took TG home from St George’s hospital’ is without foundation. The true position is that the hospital discharged TG in an ambulance to JG’s home after the social services failed to attend a meeting to discuss the issue of TG’s discharge and failed that day to come before a court to seek an order preventing his discharge to the family; v. The second important claim in this context, namely that the accommodation was a ‘one bedroom flat’ and therefore unsuitable, was untrue; vi. TG does have complex needs, but there had been no proper attempt to assess whether or not JG and/or KR could meet those needs; vii. The claimant has failed to produce evidence, either on paper or orally, to substantiate the claim that the family compromised TG’s diabetic health by feeding him inappropriate foods ‘despite being asked not to’.

[47]Speaking as the judge who conducted the first without notice hearing on 20th June, I regarded allegations (d), (e) and (g) [remove from hospital, one bedroom flat and diabetic control] as being the most significant and pressing issues in the context of an urgent application. It is therefore with dismay and great concern that I find that (d) and (e) were plainly unjustified assertions and that there is no evidence to support (g). Had the court been aware that the TG had been discharged from hospital by ambulance to the family home, that the social workers had failed to attend a meeting on the morning of the discharge with the family and treating medics to discuss the impasse and that the family’s accommodation was not unsuitable, it is highly unlikely that this court would have made the without notice order requiring the family to place him in a care home.

[48]The matter goes further, the local authority have in fact failed to substantiate all but one of the key allegations made in June 2006. The one that is made out (JG and KR’s antagonistic relationship with professionals) is only established in general terms and would not, of itself, justify the without notice removal of TG from his family’s care.

[49]Analysis of the June 2006 process discloses a serious state of affairs with the result that the court made orders which came to establish a status quo for the ensuing interim period with TG resident in a care home and the issue being ‘can he placed with the family’ rather than the position of TG being in the family’s care with the issue being ‘should he be removed from there’. Failure of the family to apply to set aside the without notice order

[50]The court, both in the order of the 20th and of the 21st June, allowed time and gave directions for the family to come to court to seek a variation of the order before they were obliged to comply with it. The transcript of the 20th June shows that I regarded that opportunity as an important element in balancing the rights and interests of the parties. The order the following day by Black J goes further and actually identifies which courtroom in the RCJ the family should attend if they wanted to be heard on the question of whether or not their father should be placed in a care home.

[51]Despite these two orders the family did not come to the court. They complied with the order and delivered TG to the care home. It was only at the first on notice hearing in July 2006 that they attended and began their campaign in court to achieve his placement in their care, but, as I have stated, by then an interim status quo had been established and forensically it is much more difficult for a family at short interim hearings to overturn an established, albeit temporary, arrangement.

[52]In the course of submissions I asked JG and KR why they did not come to court to challenge the order in the period between the 20th and 22nd June 2006 before they were obliged to take TG to the home. The response was that they did not understand that ‘liberty to apply’ in the order meant that they could come back to court to seek to have the order changed before it took effect. Without notice hearings generally

[53]In view of the situation in June 2006 as I have found it to be, it is necessary to step back and look at the without notice process in cases such as this involving vulnerable adults. In this regard the court is enormously assisted by the comprehensive judgment of Charles J given on these issues in B Borough Council v S (By the Official Solicitor)

[2006] EWHC 2584 (Fam)

;

[2007] 1 FLR 1600

. At paragraphs [37] to [42] Charles J makes general comment on without notice applications in the following terms: [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 on this practice pays insufficient regard to the interests of both the person 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 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 only from 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 2 hours if a weekend 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 is 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 of 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 (eg 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 instances Re S (Ex parte orders) [2001]1 WLR 211, [2001]1 FLR308, W v H (Ex parte injunctions) [2001]1 All ER 300(by analogy X Council v B (Emergency Protection Orders)

[2004] EWHC 2015 (Fam)

, [2005]1 FLR 341and Re X (Emergency Protection Orders) [2006]EWHC 510(Fam),[2006]2 FLR 701)and in the Court of Appeal Moat Housing Group South Ltd v Harris [2005]EWCA Civ 287, [2006]QB 606,

[2005] 2 FLR 551

in particular at paras [63]-[69], and see also the notes to Part 25 of the Civil Procedure Rules 1998 (CPR) Practice Note (Official Solicitor, CAFCASS and the National Assembly for Wales: Urgent and Out of Hours Cases in the Family Division of the High Court)

[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.

[54]I have no hesitation in agreeing with and endorsing each of Charles J’s observations and would add only the following discrete observations of my own.

[55]The task to be undertaken at a without notice hearing in cases involving vulnerable adults is not dissimilar from that facing a court when application is made without notice for an emergency protection order regarding a child under CA 1989, s 44. I would not wish to import word for word the procedure and guidance that now applies to emergency protection orders, which, in any event, arise within a different statutory context. The general approach of the court in such cases must, in my view, nevertheless be the same. The task is to evaluate as best it can the degree of urgency, the risks of intervening by way of making an order and the risks of not intervening at that stage. In this regard I would therefore repeat and give emphasis to Charles J’s reference to the guidance offered by Munby J in analogy X Council v B (Emergency Protection Orders)

[2004] EWHC 2015 (Fam)

, [2005]1 FLR 341and supplemented by me in Re X (Emergency Protection Orders) [2006]EWHC 510(Fam),[2006]2 FLR 701 in the context of without notice hearings for emergency protection orders. ‘Liberty to apply’

[56]Finally I would question the practice of using the shorthand legal tag ‘liberty to apply’ in without notice orders in this context, where the order is in all likelihood to be served upon lay parties who do not have representation and lack any legal background. In the present case, JG and KR typically never let an opportunity to complain and have their say about issues that affect TG and their care of him go by, yet they did not come to court to challenge the without notice orders during the window afforded to them to do so. Their explanation, and indeed the implication of their conduct, is that they did not understand that they had the opportunity to challenge the orders before they took effect. Given the importance of the issues involved if a lay party is in such a state of ignorance, I consider that the practice of using the tag ‘liberty to apply’ in cases such as this should cease and be replaced by a recital within the order in plain terms to the effect that: ‘If any person served with this order disagrees with any part of this order and wishes to seek to set aside or vary it, they should make an immediate application to this court to do so.’ [2] Post June 2006

[57]The main issues that arose after June 2006 relate to the family’s ability to work with professionals, and concerns about financial impropriety. In addition evidence has been heard regarding a recent visit by police offices to the family home and the recent breakdown in relationships between the family and the agency providing back-up care (the Holistic Care Agency). I propose to consider each of these shortly in turn.

[58]With regard to the family’s ability to work with professionals, I refer to my judgment of March 2007 and, in particular, what is said at paragraph 26 onwards. I do not repeat that detail here. I was and remain satisfied that JG is a highly confrontational individual who has been critical of each and every professional that she has encountered in relation to TG’s care. This feature represents a very significant detriment in JG’s otherwise positive abilities to care for her father. In evidence at this hearing the expert social work witness SS, described this feature as JG and KR’s capacity to ‘shoot themselves in the foot’. They are, I agree, in this regard their own worst enemy. Despite the exhortations contained in my judgment in March that JG would benefit from some counselling or psychological advice, that suggestion has not been taken up and there has been no apparent change. The one glimmer of hope during the present hearing occurred when JG asked SS the question ‘how do we prevent ourselves shooting ourselves in the foot?’. She did not, however, seem to accept his answer which was, again, to refer to counselling. However, the fact that the question was asked in the first place may be of some importance.

[59]I do not accept the family’s criticism that this matter was raised late in the course of the proceedings. Firstly, because it was plainly on the agenda as a result of the letter written by L Care Home in March 2006. It is also referred to in the claim form. Secondly, this court is charged with making a decision as to TG’s best interests at the end of the proceedings on the totality of the evidence. It would be both artificial and contrary to TG’s best interests, if a factor becomes more prominent in the course of the hearing, for the court not to be given evidence about it and to consider it.

[60]I, like the claimant authority, remain extremely concerned about JG and KR’s confrontational approach. I accept the reassurance of SS when he, despite this feature, considers that they will be able to work sufficiently with professionals enough of the time so as not to compromise TG’s welfare. I am also reassured that the professional and family relationships being developed with WLBC seem to be on a different footing and of a different quality than those that were achieved with the claimant authority. Alleged Financial Impropriety

[61]The suggestion that JG and KR may have appropriated some of TG’s money for their own use has not been investigated at this hearing. There are grounds for suspicion that this might be the case, and there is a need outside of these proceedings for KR (who has managed TG’s finances for some time) to give an account of how TG’s money, particularly capital, has been spent. But the case has neither been prepared nor conducted by the local authority as a detailed financial enquiry. There is, therefore, no basis upon which this court can make any findings at this hearing adverse to KR with regard to finances.

[62]The expert witness, SS advises that the finances need to kept under review; I would endorse that advice.

[63]It will be for another court, if necessary, to look into this issue in other proceedings if KR is unable to provide an adequate account of this not unimportant financial issue. Police Visit

[64]Shortly before this hearing commenced two plain clothes police officers sought to visit the family home to question JG and KR about allegations made by other family members concerning TG’s finances. KR would not allow the officers to enter the house. The police did not have a search warrant or a warrant for arrest. The family were therefore within their rights not to permit entry.

[65]I have heard KR and JG’s account of this incident in detail. Thier stance was not unreasonable within the context of there own account. The local authority relies upon this incident in support of its general case about KR and JR’s ability to cooperate. However, the local authority have not called either of the police officers to give evidence, being content merely to produce a letter from the police giving an account of events.

[66]Given the local authority’s approach on this matter, it is not possible to make any findings that are adverse to the family on this issue. Breakdown in relationship with Holistic Care agency in July 2007

[67]Shortly before the hearing took place the agency that had been providing care assistance to support the family withdrew their services. The trigger for this seems to have been JG’s concern that, upon his discharge from a short hospital stay, TG had incurred damaged skin around his buttocks, which JG considered, was a bed sore. She drew this to the care worker’s attention, the care worker did not accept that it was a bed sore, and apparently declined to make a note of it or report it.

[68]Again the local authority relies upon this incident in support of its general case against JG and KR. However, other than repeating the hearsay account that the social worker obtained from the care agency, the worker concerned has not been called to give evidence. On the other hand, JG and KR have produced photographs of the damaged skin, and the district nurse’s notes which also record a skin lesion in this area. Despite the fact that copies of those photographs and those notes were given to the local authority social work assistants, the social worker, Miss FA, knew nothing about them.

[69]There are plainly at least two sides to this particular saga. Again the local authority has not put itself in a position to prove any of the allegations that they seemingly rely upon against JG and KR. The evidence does not support making any finding against the family in relation to these events.

(a) Placement at home

[70]All parties to the proceedings are agreed, or have accepted, that it is in TG’s best interests to continuing his placement at the home of JG and KR. Some family members are firmly against this plan and doubt JG’s motives. In particular, SS read out his notes of a recent conversation with JG’s sister, LH, which recorded in strong terms that lady’s cynicism as to JG’s motives

[71]The court heard evidence from JG’s brother, VG, who gave his evidence in a calm and measured manner. He seemed genuinely concerned about JG and KR’s ability to cope and felt, in particular, that too much of a burden was being placed on KR. That being said, he accepted they both had TG’s best interests at heart and would not harm him. Following VG’s evidence the court heard again from JaG, who is in a particularly good position to comment upon the current care package, having looked after TG herself up until 2003. She had heard VG’s comments, but, from her first hand experience of seeing TG in JG’s home, she gave a positive report of JG and KR’s ability to cope.

[72]Even those family members who disagree with the placement, nevertheless consider that the two ladies are doing a good job. The local authority describes the care given to TG in positive and complimentary terms. In one important area, JG and KR have appeared to have succeeded to a far greater extent than was the case when he was in care home in controlling TG’s diabetes.

[73]SS, the expert witness, said that he did not currently have any concerns as to the care being delivered at JG’s home. He described LLBC’s approach as being based on a ‘gut feeling’ but he had not seen any evidence to support it. He believes that there is value in the core of the care being provided to TG coming from the family, as this provides continuity for him. The household is a friendly home with people coming and going; TG is suited to this atmosphere. SS regarded the quality of care currently being provided as good. SS is confident that the new local authority has sufficient competence to work with the family and provide the necessary overview.

[74]Returning for a moment to VG’s evidence, it is right to record that he described JG and KR’s general approach as being one in which no one can do anything right in their eyes; they look for mistakes; they hunt for them. This court understood precisely what VG was saying in this regard. His observations entirely accord with the description of JG and KR given by a wide range of people and experienced by their presentation in court. It is this area of the case which has caused the greatest concern during the latter part of these proceedings and needs to be addressed by JG and KR if they are to have the best opportunity to develop a co-operative and helpful relationship with WLBC. (b) Care package at home.

[75]In her oral evidence JG described TG’s current regime. Many of the ordinary caring tasks are undertaken by JG or KR themselves. They have the assistance of various disability aids and in addition a small team of three or so assistants or carers come in at set times to support the main carers. Some of these carers are paid for by the family, whereas others, as I understand it, are friends who volunteer to assist. A physiotherapist attends once a week and TG undertakes regular exercises with those who look after him on a daily basis.

[76]One deficit in the package is that all of the current carers are female and few, if any, are as fluent in Patois as TG is himself. It is accepted that TG would enjoy and benefit from the introduction of a Patois speaking male who could visit him from time to time.

(c) KR’s pregnancy

[77]Until SS spoke to LH shortly before this hearing, the fact that KR is now some four months pregnant had not been disclosed outside the family. The baby is expected in February and the pregnancy is proceeding normally. KR’s plan is to be away from her work for a period of some months and then, probably, return to work on some basis. She has no plans to leave home, or set up home with the father of the child. Her plan is that the child will live with herself, her mother and TG. JG and KR consider that this will not be a problem, and, if anything, TG will enjoy the introduction of this new, very young, member of the family.

[78]SS, the expert witness, has considered this new information, and believes that the birth of the baby will not cause any major problem for this family in providing care for TG. TG, whose character has always shone out from the papers in this case, is an amiable and warm individual, and will, in SS’s view, be likely to engage positively with the baby and enjoy his or her presence in the home.

[79]KR, in the first sentence of her oral evidence, addressed the issue of the baby’s birth and stated that TG’s best interests were at the top of her own list of interests. In my earlier judgment I indicated that the court was impressed with KR as an individual and with her dedication to care for her grandfather during these, his twilight, years. I therefore accept that statement as a true description of her current list of her priorities. However, the baby has not yet been born. It would be both natural and appropriate for the baby to become the top of her list of interests, and in assessing this factor I have assumed that that will be the case. Despite that assumption, I remain satisfied that KR will continue to undertake her part in looking after TG, or, if she is unavailable, will continue to make sure that his needs are also fully met.

[80]Before leaving the topic of the expected baby, it is necessary to record that on this issue there has also been a significant failure to communicate. It is not acceptable for JG and KR to hold the view that the fact that KR was pregnant should not be disclosed to those involved in these proceedings and to the court prior to the final hearing. Even if the pregnancy and resulting birth go well, KR will be indisposed for a period and, for a longer period, unable to lift and manoeuvre TG as she does now. It is not unusual in a pregnancy for regularly encountered complications to lead to a caesarean section being performed; in such circumstances KR’s ability to lift, having undergone major abdominal surgery, would be compromised for a longer period. In any event, the introduction of a baby into this small family in a two bedroom flat is a significant additional feature that requires to be brokered in to the care plan.

[81]I do not accept JG and KR’s proposition that the fact that KR was pregnant is irrelevant to these proceedings. Neither do I accept that for KR to disclose this information would involve a breach to her rights to private life. KR is undoubtedly entitled to expect that her right to private life is respected under

Article 8 of the ECHR

, however that right is not absolute and must be balanced in a proportionate way, with the rights of others. Here it was both proportionate and necessary for this important information about KR to be disclosed within these proceedings so that those making decisions about TG’s best interests were informed of it.

[82]In the future, any working relationship between JG and KR and WLBC must be on the basis that the family will share with the social services important information of this sort.

(d) WLBC

[83]WLBC will now take over responsibility for this case. PC, the social work operations manager for WLBC gave evidence. She was an impressive professional witness. WLBC has undertaken a thorough process of assessment in this case and supports the continued placement of TG with his family.

[84]PC accepted that it was important for the future that agreed lines of communication, and protocols for communication, between the family and the local authority should be set up and clearly understood by both sides.

(e) Contact

[85]TG has a large extended family of children and grandchildren. Because of the rift that exists within that group, many family members feel unable to visit TG at JG’s home. They have therefore largely been out of contact with him for the last five or six months. Those family members who have communicated with the court, either by giving evidence or otherwise, have expressed an interest in contact. That being said, FA, the current social worker reported that none of the other family members had been in touch with her on the issue of contact. Her view was that, for the future, ‘it is up to the family to sort out contact between themselves’. That view is echoed by the team at WLBC, who make it plain that they do not have facilities to arrange and operate a regime of contact.

[86]I accept that, in the end, it is indeed a matter for the family themselves to sort out contact issues. One option is for TG’s wife’s to broker an arrangement for contact from time to time. Alternatively, young JaG, who appears to be on reasonable terms with both sides of the family divide, reluctantly accepted in evidence she too might be in a position to act as a channel of communication on the issue of contact.

(f) Monitoring by the local authority

[87]FA recommends that the local authority should continue to monitor TG’s care. Because, she said ‘they need assistance; TG has complex needs and requires a lot of care. Social workers need to monitor the care package that has been provided.’

[88]JG and KR accept in principle that the local authority must have an overview of the care package being provided to TG. They do not object to the concept of there being a care plan, and indeed, they consider that such a plan would be in accordance with good practice and something to which the family is entitled as a result of JG’s needs. The real question, is therefore, is the extent and degree of monitoring.

[89]Once the care plan is up and running, another team at WLBC will take over its operation and monitoring. The level of social work monitoring would, in PC’s view, ‘certainly not be weekly’. The family object to weekly social work visits and, barring a change of circumstances, this position seems to be accepted by WLBC.

[90]If TG’s condition were to deteriorate in the future, the case would go back to the assessment team and be reappraised. Both the family and WLBC accept that in such circumstances the care plan would have to be reviewed. JG stated that if there was a change of circumstances she herself would contact the local authority to discuss a review of the plan.

[91]In the circumstances I do not consider that it is either appropriate or necessary for the court to specify in a declaration the degree of monitoring that should take place. The need for monitoring will in any event vary from time to time dependant, primarily, on the stability of TG’s condition and, other events such as the availability of carers or for example, the period immediately around KR’s confinement and the birth of her baby.

[92]The court, in particular, notes that WLBC, and in particular their witness, PC, now have a very comprehensive overview of this case. PC is not suggesting that the court should impose a fixed regime of monitoring and is relatively confident that the local authority and the family can negotiate on this important aspect of the case.

[93]In due course I will make a declaration to that effect TG is a vulnerable adult and, as such, it is lawful, being in his best interests, for the relevant local authority and its agents to have access to him from time to time as they may reasonably require to secure his welfare and health.

(g) General Practitioner

[94]The GP responsible for TG’s medical care has been changed on four separate occasions over the past twelve months. JG has sought to justify each of those four changes. To analyse that justification, and go into the relevant history, would take time, and now that matters are moving forward, not serve any great purpose at this stage. What is absolutely clear here is that the arrangements for TG both in terms of family care, social work overview and health must now settle down and become yet further established. It is as plain as a pikestaff that it is in TG’s best interests, now that he is to be settled in JG’s home, for there to be continuity of care under one GP. SS stressed the need to stabilise his GP position and stated that that issue was one of his main concerns. SS considered that it ought to be achieved by agreement, but if not should be provided for within the court order.

[95]In her evidence on this point JG was ambivalent and less than plain. I agree with SS’s view as to the importance of this issue. I therefore to propose to make a declaration in the terms sought by the Official Solicitor to the effect that it is in TG’s best interests to remain on the lists as a patient of his current GP unless and until that GP recommends a transfer to another doctor.

(h) Adjourn for six months or report to court

[96]SS, in his final report, put forward the opinion that it may be in TG’s best interests for these proceedings to be adjourned for six months so that the matter could be reviewed again at that stage. It is right to say that this suggestion was not supported by any party to the proceedings. In oral evidence SS explained that one of his prime motives for making this suggestion was that he anticipated that the next six months would produce yet further positive reports of JG’s and KR’s care and would therefore allow the court to endorse the current care package with even greater confidence than it may do at present. The implication was that such an endorsement based on a good track record of a year or so might well enable JG to be much less defensive, and therefore, more able to cooperate with the professionals. SS accepted my own suggestion that a final order could be made at this hearing, but that there be a requirement for the local authority to report to the court in six months as to progress, so that all would know that the judge would be told how matters were progressing; SS felt that this could well meet the need that he described.

[97]Whilst understanding the thought behind SS’s suggestion, all who have been involved in these proceedings for the past year will be aware of the toll in physical, emotional, and financial terms that they have taken. I am clear that it is very much in TG’s best interests for these proceedings now to conclude and for the family and the social services at WLBC to proceed on the agreed basis that now exists. In endorsing the care plan, as I do, I have confidence that it is likely to be effective and will indeed serve TG’s best interests. I do, however, consider that it would be helpful for the court to receive a report in some six months time as to the continued progress of TG.

[98]The optimism expressed in the previous paragraph is genuinely held by the court. The court has been impressed by the commitment of JG and KR and their ability to provide good care for their father/grandfather. The only factor in the case that might compromise TG’s best interest is that of ‘communication’ and the allied concern over JG’s challenging and confrontational approach to professionals. SS actually described this as the potential for JG and KR to ‘shoot themselves in the foot’. It is that aspect of the case that I dwelt on in detail in my March judgment. I hope that JG and KR will take on board what is said in this regard. Human Rights Claims

[99]JG and KR raise the following matters in the context of the ECHR:a. The order requiring that TG be placed in Towerbridge Care Home was such as to deprive TG of his liberty in breach of ECHR, Art 5;

b. The procedure conducted under the inherent jurisdiction of the High Court failed to meet TG’s rights under Art 5(4) to determine the lawfulness or otherwise of his detention;

c. Detention to the extent that it was in breach of Art 5 was neither justified nor appropriate;

d. The enforced removal of TG from the care of his family (JG and KR) amounted to a breach of

ECHR Art 8

which requires respect for rights to family life. That breach, on the evidence now available, was neither justified nor proportionate;

e. TG has not been afforded a fair trial as is required by ECHR, Art 6 in that the Official Solicitor, who acts for TG, has consistently backed the position of the Claimant, despite there being (in JG/KR’s view) insufficient evidence to support that course.

[100]I will deal with these issues under headings relating to the relevant articles in turn. Article 5

[101]The relevant parts of ECHR, Art 5 provide: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: e the lawful detention … of persons of unsound mind…; 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

[102]The first issue that arises is to consider whether the order requiring TG to reside at T Care Centre was a deprivation of TG’s liberty sufficient to engage Art 5.

[103]LLBC submits that the circumstances of TG’s placement at Towerbridge fall outside Art 5 and seeks to draw the distinction between ‘deprivation of liberty’ and ‘a restriction of liberty’; the distinction between the two being one of degree or intensity and not one of nature or substance. Mr Knafler relies upon HL v UK

(2004) 40 EHRR 761

as the lead authority and draws a distinction between the care regime in that case, where the hospital ‘exercised complete and effective control over [HL’s] care and movements’ contrary to the wishe of his carers to have him immediately released, and the circumstances in the present case.

[104]In the light of HL v UK and later cases, Mr Knafler submits that a deprivation of liberty only occurs when – having considered the concrete situation of the individual and the distinction between a deprivation and a restriction of liberty – the court concludes that both objectively and subjectively the individual concerned has been deprived of liberty. Lack of capacity may be sufficient to establish the subjective element, but without there being a deprivation of liberty in the objective sense Art 5 will not be engaged.

[105]In making this determination the court must look at all the circumstances of the individual’s placement. When that is done, Mr Knafler submits that, whilst TG’s circumstances may be close to the borderline, it does not cross into Art 5 territory. Of the submissions made on this point the following seem to have particular weight: i. Towerbridge was an ordinary care home where only ordinary restrictions of liberty applied; ii. The family were able to visit TG on a largely unrestricted basis and were entitled to remove him from the home for outings; iii. TG was personally compliant and expressed himself as happy at Towerbridge. He had lived in a local authority care home for over three years and was objectively content with his situation there; iv. There was no occasion when he was objectively deprived of his liberty.

[106]The Official Solicitor also made submissions on this point in support of the conclusion that the placement did not amount to a deprivation of liberty under Art 5. Whilst the placement at Towerbridge was one that JG and KR opposed, other family members supported it; the Official Solicitor does not consider that the fact that some family members oppose a placement is sufficient to change the character of circumstances which would not otherwise amount to an Art 5 detention.

[107]Against these submissions JG, whilst having no legal training, has skilfully and appropriately drawn upon extracts from a guidebook on carers’ rights to make general submissions which have been helpful, but do not descend to the necessary detail required to determine whether or not Art 5 applies in this case.

[108]Whilst I agree that the circumstances of the present case may be near the borderline between mere restriction of liberty and Art 5 detention, I have come to the conclusion that, looked at as a whole and having regard to all the relevant circumstances, the placement of TG in Towerbridge falls short of engaging Art 5. I agree that the factors highlighted by the Claimant and the Official Solicitor support that conclusion.

[109]It is therefore unnecessary for the court, in an already lengthy judgment, to go further and consider whether the detention was justified under Art 5(1)(e) and that the procedure adopted met TG’s rights under Art 5(4). However in that context it is important to note that throughout TG’s placement at Towerbridge was: i. authorised by the court; ii. in the context that TG lacked capacity to determine the issue of his own residence; iii. made under initial orders that gave the family the ability to apply to the court to vary or discharge the order; iv. continued at the first on notice hearing by consent, at a time with JG and KR were represented by solicitors and counsel; v. continued in the context of a genuine dispute within the family as to where TG should live and in the context that, save for three days, he had never lived in the care of JG and KR and in the context that for much of the initial period JG and KR were not willing to take part in any assessment process; vi. despite the earlier findings to the effect that the Claimant has failed to establish that the without notice application was justified and that the without notice orders were justified, it is, for the reasons already given, likely that following an ‘on notice’ process a period of residential placement would have been sanctioned by the court. Article 6

[110]JG and KR submit that the Official Solicitor has ignored TG’s right to have the lawfulness of TG’s detention under Art 5(4) determined by the court at an early stage. Orally, JG enlarged on this by submitting that TG’s position was unprotected at the hearings in June 2006 as the Official Solicitor was not there to act on his behalf.

[111]This submission is effectively an adjunct to, and depends upon, the Art 5 issues that I have already determined and for the same reason fails, but before passing on it is right to record that the court, following my request, has received a short account from the Official Solicitor of the circumstances that typically apply at the start of best interests proceedings of this type. The document explains that in the ordinary case (where the Official Solicitor has had no prior involvement) there is inevitably a lead in period before any effective representation can be provided; the lead in being caused by the need to consider the initial documents and complete the necessary forms to secure funding for representation. In addition it is pointed out that in the early stages of a case the Official Solicitor, like the court, is unlikely to have any independent source of information outside the material provided by the Claimant authority. The explanation given for the difficulties faced by the Official Solicitor in attending (effectively or at all) early hearings in these cases is understandable. It is also of note, as the document from the Official Solicitor states, that under the Mental Capacity Act 2005, the incapacitated subject of the proceedings will not automatically be a party to the proceedings and it will therefore be a matter for the court to establish an appropriate practice with regard to his/her representation and status in the case. Article 8

[112]JG and KR contend that the actions of the Claimant and the Court in requiring TG to be placed at Towerbridge were in breach of TG’s right to respect for family life under

ECHR Art 8

[113]No point is taken by the Official Solicitor on the issue of whether or not TG’s Art 8 rights are engaged. The Claimant however asserts that as TG had never lived for any appreciable time in JG’s home, ‘family life’ there was not established.

[114]Whilst this issue is plainly debateable, given that TG had not, save for a very short time, lived with the two ladies, JG is nevertheless one of his daughters who, alone of the other family members, wanted to care for her father. I therefore proceed on the basis that the circumstances were sufficient to engage Art 8 in this case.

[115]Rights under ECHR, Art 8 are not absolute and may be justified under the terms of Art 8(2). The Official Solicitor submits that it is indeed the case that any interference with TG’s Art 8 rights was justified in those terms for the following reasons: i. The interference was in accordance with the law, in that it was sanctioned by two court orders; ii. Was for the protection of TG’s health; iii. Was necessary given JG and KR’s refusal to engage with the statutory services; and iv. It was proportionate in that it effectively preserved the status quo in so far as that was possible given the termination of the placement at Limetrees and it permitted free and flexible contact arrangements to family members during the interim period.

[116]I agree with the evaluation of the Official Solicitor on this point and would add that, by the time that the case came on for the first ‘on notice’ hearing there was clearly a genuine dispute between different family members as to TG’s placement and there was a standoff by JG and KR on the question of their being assessed as potential carers for TG. In those circumstances (for reasons that I have already reviewed) it was probable that, whatever the evidential quality of the Claimant’s original pleaded case, the court would have sanctioned the course that it did and provide for a period of residential care while attempts were made to engage JG and KR in the assessment process.

[117]I therefore hold that JG and KR have failed to establish any of the alleged breaches of the ECHR that they have raised. Conclusions

[118]These proceedings were justified on the basis firstly that TG did indeed lack capacity and secondly that there was a legitimate and reasonable dispute between the local authority (and some family members) on the one side and JG and KR on the other as to TB’s best interests.

[119]For the reasons that I have given, the without notice application was not justified and, upon a consideration of the evidence at this hearing, the making of without notice orders requiring TG to be taken to the care home was not justified.

[120]I have, however, concluded that a period during which TG was placed in a care home and not in the care of JG and KR is likely to have been justified had the matter proceeded on an ‘on notice’ basis in June 2006. Put the other way, and in the context of the human rights claims, JG and KR have failed to demonstrate that a period in a care home was unwarranted or unjustified. In this regard I give prominence to the standoff that existed between the family and the authority/the court on the issue of assessment once the proceedings commenced. Given that TG had not lived with JG and KR before his move to them in June 2006, in the absence of an assessment process it is very likely that the court would have held that TG should be placed in a residential home for a period. Thus, whilst the without notice process was not justified, the interim status quo may well have been established at a care home even after an on notice hearing, this being based upon JG and KR’s general lack of cooperation and confrontational approach and upon their refusal to engage in any expert assessment process.

[121]A central theme of the judgment has been to try to understand how it can be that at the time the proceedings were commenced it was being said that TG is at risk of serious harm whilst in the care of JG and KR, yet, at the conclusion of the process, all are either agreed, or at least not opposing, that it is in TG’s best interests to remain in their care, with other family members and the social workers speaking positively of the care that is being provided and, for example, his diabetes now being far better stabilised under JG and KR’s regime than it has been for a long time.

[122]My core conclusion on that question is that there were on many occasions and in relation to many issues significant failures of communication between the local authority and JG and KR and a failure by those two sides to cooperate effectively with each other in TG’s best interests.

[123]Failure to communicate in the context of this case has involved a failure on the one hand by the local authority to transmit information adequately, correctly or on occasions at all. It has also involved, on the other hand, a failure by JG and KR to make themselves physically and emotionally available to receive any communication. In this latter regard, I remain of the view that I expressed in the interim judgment of 16th March as to JG’s presentation when dealing with professionals being one of forcefully expressed and unrelenting criticism.

[124]Thus, whilst I have found detailed and significant failings on the part of the local authority in communicating with the family, with the hospital and with the court, I also find that the difficulties in establishing and maintaining a cooperative and effective working relationship between those, both family and professional, whose sole aim was simply to achieve the best care arrangements for TG, were to a large part caused by JG and KR’s general approach.

[125]The reasons for giving prominence to this aspect of the case are twofold. Firstly because in my view what I have just described goes to the core of much of what has happened around TG’s care over the past two years. Secondly it is obviously extremely relevant at the present time as we look forward to the establishment of new professional relationships between this family and WLBC.

[126]That matters reached the state that they did in June 2006 was manifestly not in TG’s best interests and it is the responsibility of all involved in the future, be they professionals or be they JG or KR or other family members, to make sure that his future care is maintained by relationships that are characterised by a true spirit of cooperation and respect. It is crucial that clear arrangements are made for the professionals and JG and KR to communicate with each other. It must be accepted that communication has been a significant problem in this case in the past and therefore extra time should be taken at this stage for the family and the social services to discuss and establish protocols and procedures by which they will discuss and inform each other of matters concerning TG.

[127]It is unacceptable for social workers to say that they did not raise issues (for example feeding TG with fizzy drinks and crisps) with the family because the family would channel every conversation onto their own agenda. That statement is as much a criticism of the family as it is of the social workers. There must be a clear understanding in future on both sides that each must be entitled to raise or say what they want and the other must make themselves available to listen and take on board what is said. Declarations

[128]The Official Solicitor and the Claimant have sought a list of declarations designed to be safeguards for TG in the future. I do not list them in detail here as matters have to a large extent moved on.

[129]JG and KR do not agree with this approach on the basis that it suggests that the proceedings were justified in the first place, when their view is that they were not. In KR’s words ‘declarations sound heavy handed’. JG seeks a declaration that it is in TG’s best interests to live with JG and KR without interference by the local authority unless there is documented evidence and justifiable reasons for such interference with respect to his health and wellbeing and only when backed up by written confirmation from his GP. Just as the declarations originally sought by the OS and LBC are seen by the family as too interventionist, so, in turn, is the declaration sought by JG too isolationist.

[130]It is common ground that the local authority has a legitimate interest in having an overview of TG’s care. That would be the case with any vulnerable and needy adult. JG accepts the need for this and for her to receive outside help and support. More particularly she accepts WLBC’s approach and feels that she can work with that authority.

[131]Drawing matters to a conclusion my view is that all that is needed in this case are short declarations in the following terms in addition to consolidating the earlier declarations regarding capacity into this

order

i. That it is in TG’s best interests to remain in the care of JG and KR; ii. That TG is a vulnerable adult and, as such, it is lawful, being in TG’s best interests, for the relevant local authority (at present being WLBC) and its agents to have such access to TG from time to time as they may reasonably require to secure his welfare and health; iii. That it is in TG’s best interests for there to be cooperation and partnership between JG and KR as TG’s carers and the relevant local authority. Save in an emergency or in default of reasonable endeavours to achieve agreement, it is in TG’s best interests for such access as the relevant local authority may exercise to him in accordance with declaration (b) to take place in accordance with a care plan that has been discussed and agreed with JG and KR in advance; iv. That in the event of a disagreement with regard to a major element in TG’s care plan, an application may be made by any party to the Court of Protection for further directions; v. It is in TG’s best interests to remain on the lists as a patient of his current GP unless and until that GP recommends a transfer to another doctor. -------------------- Judgment Ends ------------------

Cited in 10 later judgments

and 1 more case

A Local Authority v A (A Child)& Anor 2010