The London Borough of Wandsworth v M & Ors (Rev 2) [2017] EWHC 2435 (Fam)

[2017] EWHC 2435 (Fam)

Case No ZC15C00620

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 3 rd October 2017

Before

MR JUSTICE HAYDEN

Between

The London Borough of WandsworthApplicant

MRespondent

ARespondent

CRespondent

JRespondent

Julien Foster (instructed by South London Legal Partnership) for Applicant

Rachel Gillman (instructed by David Tagg & Co) for first Respondent

Lucy Sprinz (instructed by Creighton & Partners) for second, third and fourth Respondents

Hearing Hearing dates: 14, 15, 16, 17 August 2017

Judgment Approved

MR JUSTICE HAYDEN

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Hayden :

[1]I am concerned here with three boys, C (aged 13), A (aged 15) and J who will be 18 in December this year. There are significant jurisdictional consequences to J’s age which I will address, in some detail, below. The children are of mixed ethnicity, white and black Caribbean. The Local Authority’s involvement with the family began in 2015 and culminated in the issuing of proceedings in October 2015. On the 16th May 2016 HHJ Tolson QC made Final Care Orders at an Adjourned Issues Resolution Hearing. The Judge’s orders did not withstand the scrutiny of the Court of Appeal and on the 15th February 2017 M’s appeal was allowed. Though the decision was announced that day, the Judgment was deferred and handed down on 23rd May 2017.

[2]The Judgment criticised the ‘unorthodox and unacceptable approach of the first instance Judge’. Macur LJ, delivering the leading judgment, observed:

“What is more, HHJ Tolson QC proceeded to make his evaluation of M's case which challenged that the necessary 'threshold' had been crossed and opposed the making of a care order in respect of the boys, on the basis that the evidence against her had been established. In fact, it was untested and disputed.”

[3]It requires to be recorded that all the parties supported the appeal:

“It is entirely understandable that this judicial approach raised the collective hackles of all parties. The parties' united stance in this appeal demonstrates an objective unease at the lack of fairness in the process. The burden of proof rested on the local authority throughout, not only in relation to establishing the threshold for the making of statutory orders but also that the intervention in the family's life proposed in the care plans was necessary and proportionate.”

[4]It also must be emphasised that the Local Authority yielded to the appeal solely on the basis of what they accepted to be the procedural deficiencies of the Court below. As Macur LJ said “The local authority sought the outcome delivered but did not support the mechanism adopted to achieve it.”

[5]The criticism of the procedure was identified in unambiguous terms:

“In this case I have had little hesitation in concluding that the proceedings were not fair to M or the children. I am satisfied that the Judge failed to accord to M her Article 6 rights to a fair hearing, and in all the circumstances fell short of safeguarding the procedural and substantive Article 8 rights of the children as provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

[6]Pursuant to the Court of Appeal’s order, on the 15th February, the case was listed before Sir James Munby, (P.) for directions ‘recognising the urgency in listing the case for re-hearing, not least because of the precarious and significant emotional welfare issues affecting at least one of the boys’. The earliest available date was before me on 14th August 2017 with an estimated hearing time of 4 days. The President authorised the case as suitable for vacation business.

[7]HHJ Tolson QC had fallen into error because he considered the ‘threshold criteria’, pursuant to s31 (2) Children Act 1989, were met in such abundance as to render any contrary submission unarguable. In that view he was, in my judgement, entirely correct. The fact remains however that M and the children are entitled to proper procedural fairness. At this hearing M has once again challenged the threshold criteria. Sadly, it has to be said, the very fact of this opposition serves to undermine her own assertion that she has ‘moved on’ and ‘progressed’ in her understanding of the issues, since the commencement of these proceedings.

[8]The Local Authority, pursuant to my direction at a Issues Resolution Hearing, filed a Schedule of Findings identifying the particular evidence on which they rely in support. It is convenient to set this document out here: Item Narrative 1(a) The children have suffered neglect, appearing unwell, fatigued, with body odour and old, ripped and ill-fitting clothes. 1(b) The children have suffered physical and emotional harm attributable to stress, inadequate food and a failure by M to cause them to attend medical appointments and administer medication. 1(c) The children have suffered neglect attributable to chaotic, untidy and unclean living conditions. 1(d) The children have suffered neglect and a risk of physical harm attributable to M failing to allow housing officers access to their accommodation on various occasions including 22.06.15, 10.11.15, 12.11.15 and 10.12.15. 1(e) The children have been at risk of physical harm due to a lack of appropriate food, exercise, outdoor activity and unsafe and unhygienic home conditions. 2(a) The children have been at risk of emotional harm due to M’s failure to obtain suitable medical/professional help. 1(b) The children have been at risk of emotional harm due to being anxious, withdrawn, extremely nervous, watchful and afraid during visits by social workers and believing there was no purpose to attending school, leaving the home or socialising with others. 2(c) M has failed to ensure that the children’s general and mental health, developmental and emotional needs were met. 2(d) The children have suffered emotional harm from their environment: lack of stimulation; lack of access to normal childhood experiences; and living as isolated recluses. 3(a) All three children have missed school/adequate educational provision. 3(b) C was withdrawn from school completely in February 2015. When at school, he had a poor diet, exhibited withdrawn and anxious behaviour and declined attendance. 3(c) A was withdrawn from school completely in July 2014. Prior to that, his attendance was extremely low. When at school, he exhibited anxiety, low weight, poor diet, panic attacks and stomach problems. M failed to follow recommendations to improve his educational provision. 3(d) J ceased to attend school in 2015. When at school, he exhibited a poor diet and poor presentation. 3(e) M caused the children to take the view that education was not important. 3(f) M failed to ensure that the children accessed appropriate education and their development has consequently been seriously affected. 4(a) M failed to allow the children to attend school, socialise with other children or extended family members, play outside or go to activities. 4(b) M left the children in the care of their older sibling N, who had learning difficulties and a developmental age of much younger than an adult. 4(c) M failed to provide reasonable guidance to J and/or failed to supervise his access to inappropriate material, causing his educational development to be impaired. 4(d) As a result of the children’s isolation, the children’s social and emotional development and functioning has been harmed. 5(a) From 25 August 2015, M failed to allow professionals entry to the home or access to the children. 5(b) M has been verbally aggressive, physically intimidating and threatening towards professionals. 5(c) M has mental health issues severely restricting her from meeting the children’s needs and causing them significant harm. 5(d) M has demonstrated a lack of insight into the effect of her parenting and the home conditions on the children.

[9]This Schedule gives no hint at all of the central issue in the case. Following the hearing in the Court of Appeal there was a full psychiatric assessment of M. M had until shortly before the conclusion of the original care proceedings, been strenuously resistant to any assessment of this kind. She guards her privacy jealously.

[10]The assessment, which identifies the real issues in the case, was undertaken by Dr Duncan McLean, a Consultant Psychiatrist, based at the Anna Freud National Centre for Families. Dr McLean filed a report dated 7th July 2017 and gave evidence before me. I found him to be measured, reflective and thorough in his approach. The following observations I found to be particularly helpful:

“…Getting specific information from her was very difficult, as she tended to talk in generalities. She did not appear anxious or depressed. Of those people that she was or had been close to, she only spoke in superlatives and seemed incapable of having any mixed feelings or critical thoughts about them. On the other hand, in relation to professionals whom she felt have been critical of her, such as Social Services, she talked in very angry tones. At these times, she could seem paranoid in the sense that she attributed to them malicious motives for their actions. She was quite unable to see that they might have been acting in a professional or caring fashion. These paranoid ideas are not delusional and seemed to be a consequence of her fear of an authority that can act in a way that she sees as being against her interests. When she does not feel threatened in a relationship, she can present as both friendly and warm. These different responses may explain why she has been perceived very differently by her GP and Social Services.”

[11]This analysis accords entirely with my own assessment of M in the witness box. Two further conclusions need to be recorded from Dr McLean’s assessment. Firstly he noted that ‘[M] has a difficulty not only in expressing feelings, but also in managing negative feelings. This is particularly so in the case of loss. There were a number of incidents of loss she related that she had clearly not managed well and in particular, it seems that the loss of her [mother] in 2014 was destabilising for her. She described this event as ‘devastating’, but was unable to talk further…’

[12]Later Dr McLean recorded that M had been ‘… socially isolated during her life’ which was ‘evidenced as far back as her mid-teens, with both her GP and her school expressing concern about this’.

[13]A number of questions were identified by the parties to form the framework of Dr McLean’s report. These were, if I may say so, particularly well focused. I do not need to set them out in full but some require to be highlighted. Dr McLean considered that M’s presentation and history ‘would suggest a diagnosis of Asperger’s Syndrome’. This is defined as a developmental disorder that appears in early life which causes social and relational difficulties attributed to underlying deficits in reading, recognising, managing and communicating feelings. In evidence Dr McLean said that it is generally regarded, diagnostically, as having been absorbed into the broad spectrum of autism at what he termed ‘the higher end’. As I understood his evidence, the label given was less important than the underlying features of M’s personality, which he identified and to which I have referred.

[14]Asperger’s Syndrome, Dr McLean considered, is not known to respond to any significant degree to any treatment. He advised and in my judgement this really requires to be emphasised, that such individuals‘…can be helped by support if their deficits in communication and managing feelings are understood. However, this support would not be likely to bring about any significant change in their functioning.’

[15]Again, I saw this analysis illustrated in M’s responses to cross examination. Clear, short, seemingly unthreatening questions frequently elicited a thoughtful, sometimes insightful reply. By contrast, overtly challenging questions provoked genuine confusion (at times), hostility and occasionally wild and seemingly paranoid allegations. More widely, I consider it likely that this explains why M forms functional relationships with some of the professionals and highly dysfunctional ones with others. Given that the threshold criteria are advanced in the way they are and, to a great extent, have to be, (as criticisms of M’s parenting) it is perhaps unsurprising that M has been unable to respond constructively to them.

[16]The central issue here is the impact of M’s functioning on her parenting. Here Dr McLean’s views require to be set out in detail:

“…This condition is life long, and will have affected her parenting style from the children’s birth. [M] has a little understanding of children’s physical, behavioural, and educational needs. In practice, however, evidence from the court bundle and the children’s presentation on reception into care suggest that she was unable to maintain a clean home environment or to promote the children’s physical self-care such as brushing teeth, keeping clean, or providing themselves with food. For example, on reception into care at the age of 16 [J]had no idea how to use money or make his own breakfast. In terms of their behavioural needs she appears to have been unable to set boundaries on them, and in terms of education, though she values this, she was unable to promote their school attendance or the development of relationships with teachers or peers that might promote this. ” “In addition, M has no understanding of social and emotional development, and therefore is unable to appreciate others’ concerns about her children’s severe disturbance in these areas. From the beginning, she has been unable to develop her children’s capacity to identify and regulate their own feelings. When the children were in her care she was unable to help them with their communication difficulties, their difficulties in social relationships and their consequent isolation. All three children assessed for our original report showed very serious deficits in their capacity to think about their own internal states of mind, or to communicate or manage their feelings.”

[17]In evidence Dr McLean told me that though M has her own particular way of analysing herself and though she finds this difficult to communicate she also has a tendency either to ascribe or superimpose similar feelings on to her children. In short she has difficulty seeing her children as separate and autonomous individuals. I have noticed congruence in the evidence between the children’s perceptions of themselves and M’s own belief structures. She and they consider themselves (i.e. the boys) to be ‘brilliant’ and ‘geniuses’. Each of the boys has great strengths and talents but the inculcation of this sense of superiority has had a corrosive effect on their capacity to forge relationships.

[18]On another occasion M told me that she had noticed mould growth in the second bedroom. In her evidence she described how she had researched this on the internet and come to believe that it presented a significant health risk to herself and her children. She explained how, in due course, she concluded that the bedroom should not be utilised for sleeping in and so moved the boys into her own room or into the sitting room. The bedroom later evolved into a store room and its chaotic nature, she reasoned, led to the ‘unfair’ allegations made against her of untidy, chaotic and unclean living conditions, which remain within the Schedule, set out above. I relate this in some detail because I believe it helps in understanding M’s thinking and illustrates both why it is not appropriate to identify this case as one of simple neglect and better to understand M’s enmeshment with her children. C has also spoken of the ‘poor air quality’ in the flat which coincides directly with M’s view of the impact of the mould.

[19]Dr McLean considered that M had particular difficulty in managing separation or loss of any kind. The most significant loss was that of her mother which all agree including, to some extent, M herself, led to a significant diminishment of her capacity to manage from day to day. Undoubtedly there is deterioration in the care given to the younger boys, particularly following their grandmother’s death. This encompasses not merely their school attendance but also medical and dental care. It is right to say, as Ms Gillman, counsel on behalf of M, has identified, that in the children’s earlier years there is impressive school attendance and appropriate visits to doctors and dentist. I agree though with Dr McLean, Ms Sophie Rayner (social worker) and the Guardian that this falling off is not solely due to the loss of M’s primary support but also rooted in her difficulty in understanding her children’s emotional and developmental needs as they approach adolescence.

[20]M told me in the witness box that the children’s attendance at school required a ‘balance’ to be struck between educational benefits and social ‘dangers’. In truth however, she sees school attendance as very dangerous for her children. She perceives it as a place where they are ridiculed and bullied and from which they must be protected. Her eldest son N, not subject to these proceedings, continues to live with his M. He is 21 years old and has only left the flat on one occasion in over 3 months. M told me that she tried to encourage him to do so but I did not gain the impression that she had much commitment to this. In common with her sons M has come to regard the flat as a place of refuge and safety. Within it and precipitating the Local Authority’s intervention the family had become extremely socially isolated.

[21]One significant feature of the Local Authority’s threshold document is that it alleges that A and C have not received appropriate food and nutrition. Underlying this is the children’s own level of functioning to which I will turn presently. C, in consequence of his own autism is highly sensitive to food smells and textures. J experimented, for a time, with veganism. All this made it very difficult for M to manage. The consequences, I find, were unacceptable. I am satisfied that the children’s diet was poor and reflected in their low weight. What is significant however is that this too occurred in consequence of M’s inability to regulate the physical and emotional needs of her children in consequence of her own developmental difficulties.

[22]Ms Minna Daum, Senior Family Therapist, assessing the children, told me that having discussed the case with Dr McLean she had no doubt that M was strongly attached to her children. I would wish to highlight this because I sense that it has not always been fully appreciated by some of the professionals, nor properly factored into their understanding of the case. So many of the concerns the Local Authority has expressed have their root in M’s distortedly positive view of her children’s abilities and her own incapacity, partly in consequence of this, efficiently to identify or meet their physical and emotional needs. I am satisfied that the threshold criteria is met here as particularised in the Local Authority’s document but I emphasise that these circumstances came about in consequence of the overwhelming challenges faced by a mother with developmental difficulties herself, variously managing four boys, two of whom were on the autistic spectrum and one of whom may also have been. It seems to me to be crucial here for M, the children and the professionals involved to identify not merely the factual findings but their underlying dynamics. I do this not to render my findings as to threshold ‘less incendiary to the mother’, to borrow Ms Sprinz’s phrase but because I consider mother’s frequently benevolent intentions will have, on some level, been absorbed by the children and will likely have ameliorated the harm they have sustained.

[23]The Local Authority seeks Care Orders in relation to C and A, planning that they remain in residential care and contemplating a regime of contact between the children and their mother as well as between the siblings. It is unnecessary for me to set these proposals out as they became, substantially, uncontentious in the event that the M does not succeed in her ambition to secure the children’s return. The Guardian supports the Local Authority’s care plans.

[24]Minna Daum and Tim Baker, Child and Adolescent Psychotherapist, are the co-authors of a report dated 15th March 2016. One passage has elicited significant comment, not least because it is expressed in uncompromising language:

“‘[the boys] formed a group identity in which they saw themselves as intellectually superior and separate to the rest of the world… to varying degrees, this experience has massively compromised their ordinary emotional, social, behavioural and educational development… what is evident is the level of varying degrees of disturbance. In our opinion, this ‘cult mentality’ could not have developed if these brothers had been cared for in an ordinary parental way. By this we mean that the boys have experienced an almost complete absence of supervision, ordinary boundaries, or a relationship with a parent who has actively helped them make sense of themselves and the world. In addition, they clearly share their [mother’s] mistrust’”

[25]As I have heard about this family I have gradually come to believe that the use of the word ‘cult’, which I have emphasised above, is accurate. I was initially resistant to it because of its highly pejorative connotations. Ms Sophie Rayner has been the boy’s social worker. I was very impressed not only by the objectivity of her analysis but the extent to which she knew the eccentricities, foibles and personalities of both boys. Her affectionate descriptions of them both brought them alive at this hearing.

[26]Though the Local Authority had initially sought to place the children together in a foster placement that proved ultimately to be unsatisfactory. Ms Rayner told me that despite the efforts of the carers both boys, particularly A, found the intimacies and intense interactions of ordinary family life to be overwhelming for them. They have fared far better, she told me, in separate residential units which have enabled their respective talents and strengths to begin to flourish. A and C’s progress and engagement with education and general welfare has revealed stark improvement. Ms Raynor makes the following observations: i) A ‘has settled in extremely well and he wishes to remain there until he is 18 years of age’ ii) ‘A is in year 10 and attends school… A thoroughly enjoys school and the PEP held on the 01/12/2016 was extremely positive. A has excellent attendance at school at 100%. A is achieving academically and is on target to achieve C+ in his GCSE’s. He speaks about going to university and is definitely capable to do so. He has been nominated for a University Taster trip to Oxford and Cambridge’; iii) ‘A has made friends at school and is reportedly very popular with his peers’; iv) ‘A has lost weight and become physically fitter over the past year. He enjoys going out on walks, jogging and gardening. He is also enjoying PE at school… A’s enuresis is now resolved and he is no longer taking Desmopressin. A has a good personal hygiene routine, he takes daily showers and brushes his teeth twice a day’; v) ‘C’s attendance [at school] is excellent and he states he enjoys school very much. C is continuing to achieve academically; he is on target in all of his subject [sic].’ vi) ‘C is healthy, active and eating a well balanced varied diet. He sleeps well and is able to concentrate in school’. vii) ‘There is an improvement in [C’s enuresis] and there has been no bed wetting for the past 2 months’.

[27]Ms Sprinz, on behalf of the boys, has placed great emphasis on A’s school report from a few weeks ago. Having drawn my attention to it twice during the course of evidence she has replicated it in her written Closing Submissions. She is right to do so and I follow her example here:

“‘[A]is making fantastic progress against his targets, I am very happy to see 100% attendance, very few can say they have done this. [A]’s work ethic has clearly paid off; I would encourage him to come back in September with the same determined attitude. Well done!’”

Ms Sprinz contends this speaks volumes as to A’s improvement. I agree.

[28]At the time of the commencement of the Care Proceedings A had not attended school at all for a period in excess of 15 months. Ms Raynor describes him now as ‘bubbly and affectionate with a lively, dry and sarcastic sense of humour’. This is something that M has long been aware of too and takes great delight in. As Ms Minna Daum and Mr Tim Baker emphasised in their report, A is not severely autistic, he has mild, moderate autistic traits which have enabled him effectively to respond to the educational and social stimulation he is receiving.

[29]Now aged 15 years, A has provided a statement explaining that he would like to remain in his current placement where he recognises he is settled and is enjoying school. As Ms Daum pointed out this young boy whose life was for so long circumscribed by the parameters of M’s flat, recently went on a school trip to China. Mr Campbell, A’s Guardian, described A as a very thoughtful young man with a calm temperament. I note that he has also told his M in kindly but unequivocal terms that he wishes to remain where he is.

[30]In my judgement and in the particular circumstances of this case A’s wishes should be regarded as effectively determinative given the careful and reflective way in which they have been articulated. In any event the evidence as to his welfare interests points overwhelmingly to his remaining where he is.

[31]Like his brother A, C also does not wish to go home. I was reminded in evidence that at the time of the Local Authority’s intervention C and A were speaking to each other in a language that they had devised. There was an elaborate and quite rigid structure to their interactions predicated on an achievement and award system. Achievement of particular tasks enabled time on the computer or an opportunity to pet and stroke the cat. The extensive chronology prepared by the social services plots an escalation of concern encompassing those matters set out in the Schedule in the months leading up to statutory intervention.

[32]In understanding C’s present circumstances Ms Sprinz has highlighted a number of important sources. To my mind, the most significant of these is a note prepared by C himself in the course of the Anna Freud assessment. On a piece of paper in which he describes ‘My previous home’ he records the following, set out in a tight linear format:

‘poor air quality; limited food; limited drink; limited resources; garbage on floor’

. I have not included the entire list but it is difficult to resist drawing obvious comparisons between this and that compiled by the Local Authority in their threshold criteria document. The latter was a recently produced document, C’s document was written on the 18th February 2017 (C put a date on the document himself). I should also record that I do not regard the assertions in C’s list as conclusive proof of their contents, they require to be evaluated alongside the evidence more generally. Some of C’s descriptions reflect his age, functioning and level of maturity but, in my judgement, illustrate his ‘feelings’ as opposed to accurate descriptions of fact, nonetheless they reveal a consistent picture. Thus, included in the descriptions I have set out above are: ‘Mutant horrible creatures; spiders; horrible…’.

[33]C also spoke to Dr Sillifant, a Child Psychiatrist, about his former home life. He described ‘havoc’, ‘clutter’, ‘black sacks of rubbish’, ‘spiders’ and ‘cobwebs’. C is far less benevolent than A. He talked of having ‘his lungs exploded by the dirty and stale air in the flat’. In his report the Guardian makes the following observations:41. In questions about the risk to him going home C identified that he could be negatively influenced by his brothers, his education would be affected. He said it was kind of depressing if J returned home as nothing would change his or [N’s] views. Even if the risks he identified could be mitigated or managed he does not want to be there.

42. With regard to sibling contact [C] would like to see his brothers at their placements twice a year. I asked what if [J] were to return home and he responded that he would not see [J] in that event. He does not want to come to Wandsworth and he feels [J] would not travel to see him. [C] clarified that when he was talking about contact with his brothers he was not referring to N as he knows he will not leave the house so there is no point is asking. [C] would like to have contact with [J] before he returns home and I have already raised this with the Social Workers and placement to try and get a contact to happen in the week beginning 14th August.

[34]C is now settled, secure and flourishing in his placement. He has displayed an enthusiasm for education. He is developing his social skills and has shown considerable skill on keyboards which I understand he has great enthusiasm for. Though he recoils from team sports I am told he enjoys cycling, running and boxing. He has expressed a strong wish to stay where he is, in reasoned and compelling language. In this he is supported by all the professionals from their respective disciplines. I am very clear that his best interests lie in remaining where he is and I am entirely satisfied that the Local Authority’s care plan and proposal for contact serve his welfare most effectively. Child J

[35]One of the unfortunate consequences of the delay in this litigation is that this Court no longer has jurisdiction to make orders in relation to the eldest child J, either under The Children Act 1989 or in Wardship. The Local Authority is extremely concerned that if J is not protected by the Court he will be vulnerable. This situation is a consequence of the delay caused by the litigation and was not the situation confronted by HHJ Tolson QC.

[36]In order to understand the situation fully it is necessary to assess J’s circumstances in the way that I have done with his brothers above. The Guardian described J as having a very pleasant personality but his views of the world are more rigid than those of his younger siblings. The Guardian notes that J’s thinking can be ‘concrete’ and often ‘inflexible’. I note that like his brothers he has a sense of humour which is variously described as ‘witty and dry’. When asked to describe ‘feelings’ Ms Daum noted that he was ‘non-plussed’, ‘gazing at me quizzically as if I was slightly mad’. When she confronted him with this he was able to perceive humour in his own limitation. He was asked whether he missed his brothers. I set out Ms Daum’s description of his response verbatim:

‘he frowned as if bewildered by the question and eventually said (as if this should be self evident) that he did not’

. Ms Daum and J’s social worker Ms Ellie Shortall have told me that J much prefers life at his residential unit. He too found the demands of family life overwhelming. Ms Daum assesses J as being extremely disturbed. She considers he has little grasp of reality and observes that ‘the prospect of having to face this by looking after himself and living a life in the social world appears to have led him to think that suicide is the only solution. He can not imagine any future for himself either in education, work or in relationship to others. He does not want to go out, saying he is frightened of more than one person at a time’. J considers that ‘only inside is real, nothing important happens outside’.

[37]It is necessary in order properly to understand the range and extent of the challenges J faces to incorporate significant passages of Ms Daum’s assessment within this judgment. The material is of a sensitive nature and makes uncomfortable reading: Emotional a) [J] has an extremely poor ability to recognise any emotional state; for example when it was suggested to him that he appeared ‘sad’, he had to look this up on the internet. He does not acknowledge any feelings about his situation or his relationship to others. When more in touch with feelings, he appears to have extremely low self-esteem, thinking that he cannot be liked or cared for. When more defended against these feelings he expresses contempt for others. It offers some hope that his narcissistically defensive stance of superiority can, at times, break down, and he can express some vulnerability. b) [J] defends himself against traumatic, frightening situations by avoiding them. For example he cannot remember anything before the age of seven, and his memory of the events surrounding his leaving the foster home is extremely limited. Everything outside his home was seen as frightening, and he avoided this by staying indoors. He depersonalises most feelings, saying for example, “it’s logical to miss someone who has been helpful.” He is unable to tolerate any feelings of dependence, and denies his need for anybody when asked. His sudden exposure (when removed to a foster placement) to more ordinary family life, in which people attempted to engage him in relationships, was experienced as extremely traumatic, and in this context it is unsurprising that he appeared to suffer an emotional breakdown when he walked out of the placement in a fugue-like state. In emotional terms, [J] is functioning better in his current residential placement, where fewer demands are placed upon him and there is some sensitivity to the severity of his difficulties in relating to the world. While he was in the environment of his home, [J] was able to avoid the realities of preparing for life as an adult. He explicitly lacks any concept of a future in which he functions in the real world. This has implications for his future care, in that if he is confronted with this too quickly he may become more, rather than less, disturbed. [J] must be seen as an extremely vulnerable individual who is seriously disabled in relation to coping with the ordinary demands of everyday life in almost all its aspects. Attachment organisation c) [J] refers to his M… …as ‘stupid’, and shows considerable contempt ... He is very clear about not wanting to go back to live with his [M]. He is attached to his siblings, but not as separate psychological beings who may not share his opinions or thoughts. He sees his aunt Sharon in a similar way, in that “it’s like being with [his] siblings, she’s just not as intelligent.” He defends himself against the need for a caregiver by seeing himself as all-knowing and more intelligent than anyone else. It is likely that [J] has developed this way of functioning in the absence of any reliable caregiver or a parent who helped him face the world. [J]’s development has been greatly compromised in addition by the narcissistic cult that developed between himself and his siblings that replaced any ordinary attachment relationship. Cognitive/educational d) [J] presents as an intelligent and articulate individual. He is not currently attending school, and has missed a very significant amount of education. By his own account there is no one as intelligent as him, and he finds it difficult to tolerate the dependent relationship that learning from others entails. His loss of memory is quite striking, but appears to be linked to his emotional state, in that it seems to be related to his defending himself against events that he has experienced as traumatic. Because he has spent so long out of school, and spends his time accruing information via Wikipedia, his cognitive functioning has not been enabled to develop in an ordinary way, neither has it been tested in the real world. Autism /Asperger’s e) It is quite likely that [J] would meet the criteria for diagnosis with an Autistic Spectrum Disorder. He has a very poorly developed theory of mind, is rigid in his thinking, displays quite idiosyncratic use of language, and has great difficulty with social relationships. However, he makes good eye contact and does not appear to have obsessive rituals of any kind, or any sensory difficulties. The deficits referred to above could also be attributed to severe neglect; in other words the lack of an ordinary reliable caregiver who has helped [J] relate to and make sense of the world…

[38]Contrary to his position incorporated into this report, J now expresses a wish to live with his M. What I found difficult to understand is that he is at present refusing to see her or availing himself of the opportunity of the telephone contact which has been offered. I am told he sees no inconsistency in this position. The Guardian addresses it thus: “I put the scenario to him that after nearly two years of being away from home and a year of not speaking to his [mother] or [N] he would just pitch up on the doorstep to resume his life there. This seemed quite reasonable to [J] and he did not feel he needed to speak with his [mother] or [N] and he could adapt once he is home. Even if he needed a bed or wardrobe provided he would not want the Local Authority to be involved to assist him. I don’t believe [J] was being at all facetious and I also don’t believe that he has been having any surreptitiouscommunication with his [mother] or siblings that would have paved the way for anyreunion. His inability to weigh up the pros and cons of the choices facing him wasconcerning.

[39]It is self evident that J’s assessment of his own situation is fraught with danger both immediately and in the longer term. Ms Daum, Ms Shortall and Mr Campbell (the Guardian) have unpicked the apparent contradiction in J not wishing to see M but wishing to return to live with her. Ms Daum told me that it is driven by what she describes as ‘a form of suicidality’ by which she explained she considers J ‘is giving up on the whole idea of having or developing any thing other than a very, very narrow and isolated life’. She concluded ‘I worry about that’. Sad though this is, it strikes me as a convincing rationalisation of J’s apparently contradictory position. Ms Shortall and Mr Campbell endorse and share this analysis. Ms Shortall adds to this her view that it is his elder brother, N, who is the real attraction for J’s return. I agree with her. N appears to have achieved precisely the refuge that J seeks. J has also volubly articulated a deep seated resistance to ‘the intervention of the state’. This, though it is more deep seated, is in part due to the protracted nature of the legal proceedings.

[40]The professional consensus is that J is making modest but important advances in his residential unit. As to the objectives as to what can be achieved I return to Ms Daum’s report. There she tells me ‘J needs to have a home environment separate from his brothers, as they have encouraged and supported his cut-off and unrealistic approach to life’. His home environment should remain, ‘for the time being, a group home rather than a foster placement, as currently the intimacy of a foster relationship is more than he can tolerate’.

[41]To achieve these objectives Dr Daum makes the following observations in her report:

“There should be a slow and gradual exposure to external reality, including social relationships and education, so that [J] very slowly becomes accustomed to this and able to manage. To what extent he will be able to make progress in this is currently unknown. There are one or two hopeful indicators… …but it is possible that his personality structure has become so rigid as to make him feel unable to adapt and learn to become an independent, autonomous adult with a meaningful relationship to the world. ”

[42]Though it is thought that J may benefit from individual psychotherapeutic help, he is resistant to it at present. Educationally, he has made ambitious attempts to participate in an Open University course for a PPE degree that has now been cast aside and he is resisting any formal education. Given J’s continuing reluctance to involve himself in what has been described as ‘external reality’ and his persistent self aggrandisement, Ms Daum considers that there remains a serious risk of his developing severe personality difficulties such as ‘Narcissistic Personality Disorder’. When Ms Daum assessed J, it was his position, expressed very strongly that he did not wish to see his M and he did not wish to live with her.

[43]Whilst the above analysis is profoundly troubling and rather bleak, this can be tempered by the fact that J’s ‘pleasant personality’, to use the Guardian’s phrase, has attracted the staff team members to him. They are encouraging, fond of him and have worked at his pace to enable him to make tentative engagement with the outside world. Disturbingly, I am told that progress in relation to the outside world can only cause J to confront ‘his extreme vulnerability’ and, paradoxically, elevate the risk to him.

[44]It is to my mind very significant that in the early assessment of J by the Anna Freud team there appears this sentence:

‘It is not possible to envisage that he will be able to live independently from the age of 18, and we would recommend that he remain in his current placement well beyond this age.’

That proved to be prescient and is the dilemma that I must now confront.

[45]All the advocates agree that given J’s age I am not able to make orders within the framework of family law. However, in the light of J’s obvious and pressing needs, the Local Authority seeks permission to pursue proceedings on J’s behalf in the Court of Protection. To this end they have undertaken an ‘Assessment of Mental Capacity’ which has been produced to me during the course of this hearing. This purports to have been made with reference to the Mental Capacity Act 2005 (MCA) and specifically to the Codes of Practice 1 2 & 4. It concluded that due to J’s ‘lack of insight’ and ‘inflexibility of thought’, he ‘on the balance of probabilities lacked mental capacity to make the decision as to where he should live’. The social worker added to this in oral evidence that J was unable to ‘sift and weigh the issues’ underlying the decision. However, she did not illustrate her assertion by reference to identified difficulties.

[46]I do not mean to be discourteous to those involved in this assessment. I suspect that the process was almost entirely driven by a determination to secure that which is undoubtedly in J’s best interests i.e. continued placement at this residential unit. However, I am convinced that the assessment displays insufficient forensic rigour to justify its conclusion. Neither do I regard its determination that J lacks capacity as adequately reasoned.

[47]Furthermore, having listened to the evidence from those who undertook the assessment I am far from satisfied that they explained the purpose of the assessment to J. Indeed I would go further, I do not think they did. One of the key principles of the Mental Capacity Act is that a person should not be treated as unable to make a decision until everything practicable has been done to help the person make their own decision (see s1 (3)). The code of Practice dedicates an entire chapter to providing guidance and prompt consideration of a range of practical steps which might assist in this objective. It seems to me to be fundamental to the assessment process that P is informed of the purpose of the assessment. Mr Cheung insinuated that he had done this but, if he will forgive me for saying so, I did not find him convincing. In the written assessment there appears, at (5), the following question: have you explainedthe purpose of the assessment to P? The answer, which I repeat in full, reads ‘Yes’. J is aware of the current situation and this topic has been brought up and discussed on many different occasions.’

[48]There can be no question that assessment of mental capacity is a very recent issue in this case. It only came to light at all a few weeks ago at the IRH. Self evidently therefore it could not have been discussed ‘on many different occasions’. What has been the subject of intensive investigation however is where J should live. I am very clear that what is being referred to here is the substantive decision rather than the capacity to take it. J, as I have alluded to earlier, is fiercely and politically resistant to what he considers to be disproportionate state intervention in private life. This is a consistent preoccupation in his conversation. As I said in the course of evidence, if it had been properly explained to J that an assessment of his capacity to take decisions as an autonomous adult was being tested I would have expected a voluble and unambiguous response on his part, none is recorded.

[49]It seems to me that a prerequisite to evaluation of a person’s capacity on any specific issue is at very least that they have explained to them the purpose and extent of the assessment itself. Here, that did not happen. In my view, it is probably fatal to any conclusion. In any event, it, at least, gravely undermines it. I have very much in mind PC and Anor v City of York Council [2013] COPLR 409 where Peter Jackson J (as he then was) made the following observation:

‘… there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates.’

[50]Earlier in the proceedings J’s solicitor, Mr McGovern, considered whether in the light of J’s age, he was competent to instruct and participate in these proceedings. That was a thorough and detailed assessment which had been carefully planned and sensitively undertaken. Mr McGovern was clear J did not wish to be directly involved in the proceedings or separately represented. He considered that even if J had wished to, he found it difficult to give reasons for his views and was ‘concrete’ in his thinking. Ultimately, he considered that despite his chronological age, J was not competent to instruct and that ‘integrating him into these proceedings would have … adverse impact … on his already fragile state’.

[51]What is significant however is that during the course of his assessment Mr McGovern spent sometime considering the question of where J should live. I emphasise that this assessment was directed entirely towards the issue of competence to instruct and participate in proceedings. Nonetheless, J’s observations on the issue I am considering here are interesting. J said he wanted to return home, not to be with M or N but to the ‘home itself’. J amplified this, saying he sees being at home as ‘freedom – not in the sense of being allowed out as he does not wish to go out’. He said, ‘at home there is freedom not being homogenised by society’. He also observed that education was ‘indoctrinationby the State to make people slaves’. He considered that being in the unit was ‘like being in a prison’. He expanded on this saying ‘not in the physical sense but the emotional’. He continued, that he was ‘forced to communicate in a way with people that was not beneficial to him’.

[52]I am left with a real anxiety as to whether these remarks illustrate a lack of capacity to take the decision in focus or merely an illogicality or general unreasonableness on J’s part. It is necessary to set out, in full, the five guiding principles underpinning the Mental Capacity Act 2005. (At section 1): The principles(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

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

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

[53]The Mental Capacity Act also defines people who lack capacity. Section 2(1) sets out the definition: 54. People who lack capacity(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to— (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

[54]It follows that Capacity must be regarded as both specific to a particular decision as well as to a particular time. It must also be intrinsically linked to a disturbance in the ‘functioning of the mind or brain’. Crucially, that disturbance must be causally linked to the inability to make the particular decision.

[55]The Court of Protection is empowered to make declarations as to a persons lack of capacity to make decisions pursuant to Section 15 of the Act: Power to make declarations(1) The court may make declarations as to— (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.

(2) “Act” includes an omission and a course of conduct.

Power to make declarations

[56]However, the Act contemplates that circumstances may rise where the Court may not have the requisite material to make a declaration of Section 15 but maybe required to authorise some protective action on an interim basis. Section 48 is intended to provide for the situation. It states: Interim orders and directions The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—(a) there is reason to believe that P lacks capacity in relation to the matter,

(b) the matter is one to which its powers under this Act extend, and

Interim orders and directions

[57]Once that test is met the Court must nonetheless, both at a final and an interim stage, consider the criteria within Section 4, ‘the checklist’. Best interests(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which— (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10) “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11) “Relevant circumstances” are those— (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.

Best interests

[58]Counsel have referred me to two authorities: Re F(Mental Capacity: Interim Jurisdiction) [2009] EWHC B30(Fam):

[2010] 2FLR28

and Re: FM and ANR

[2016] EWCA Civ 645

. In Re: F HHJ Marshall QC, sitting as a judge of the Court of Protection, identified the evidential test as follows: 36. What is required, in my judgment, is simply sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard. There are various phrases which might be used to describe this, such as "good reason to believe" or "serious cause for concern" or "a real possibility" that P lacks capacity, but the concept behind each of them is the same, and is really quite easily recognised.

[59]HHJ Marshall QC was sitting in an appellate capacity considering an order made by a District Judge. On the legal argument

the Judge concluded as follows:

“37. I therefore accept Mr Cragg's submission that the "gateway" test for the engagement of the court's powers under s 48 must be lower than that of evidence sufficient, in itself, to rebut the presumption of capacity. If and insofar as this was the test applied by the District Judge (as seems to have been the case), this was incorrect.” 38. If the learned District Judge did not in fact ask herself whether the evidence before her was enough to rebut the presumption of capacity, but applied some lesser test, did she nonetheless apply too high a test? In my judgment she did, because it appears that she regarded nothing less than the positive opinion of a specialist medical practitioner to the effect that F did lack the relevant capacity as being sufficient to found her jurisdiction even to direct a psychiatric assessment of F.”

[60]More broadly,

Judge Marshall analysed what she referred to as ‘a lower threshold’ in these terms:

“43. A lower threshold for engagement of the court's powers under s 48 is not at all inconsistent with the emphatic approach of the Mental Capacity Act 2005 that every adult is to be treated as entitled to make his own decisions, and is not to be interfered with in that regard without good reason to suppose that he is vulnerable through lack of capacity. The jurisdiction under s 48 has two stages, and, in my judgment, it is the second stage rather than the first which provides the real protection for P against undue interference with his affairs and his right to make his own decisions.”

The Judge sought to define the test as concisely as she felt able to do so:

“44. The proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P's affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P's right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where capacity itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined.”

[62]Finally she made the following concluding observations:

“46. To my mind, the unclear situation certainly suggested a serious possibility that F might lack capacity in relation to decisions about her own care needs, whether temporarily or on a more long term basis. That possibility was also, in my judgment clearly sufficiently serious, or real, that the court was entitled to take jurisdiction under s 48. The obvious matter needing determination was, in particular, whether F's attitude to her care arrangements did indeed stem from lack of capacity in that regard or not. The case therefore invited a direction appropriate to the circumstances, to enable this issue to be resolved with dispatch, even though the situation might not have been serious enough to justify making any further direction or order with regard to F's living conditions at that stage. .”

[63]In Re FM (supra) King LJ, has been regarded as endorsing Judge Marshall’s definition of the test. However, her judgment was handed down on an ex parte application for permission to bring a second appeal allied to an application for a protective costs order. The Applicant appeared in person. The Judge, sitting alone, heard no argument in relation to the test in Re F. and was not directed to any law. She made the following observations:

“12. I should say that the jurisdiction to make such declarations were considered in the case of Re: F (Mental Capacity: Interim Jurisdiction) [2010] 2 FLR 28 which established or sets out the proper test. It indicates that the evidence required to make an interim declaration under section 48 is at a lower threshold than the evidence required to make a final declaration and that the proper test in the first place is (a) whether there is evidence giving good cause for concern that the person might lack capacity and (b) when that was raised as a serious possibility, the court should take and decide what action, if any, was in the person's best interests before a final determination of his or her capacity could be made. ”

[64]Later, King LJ, observed: “23. Section 48 of the Mental Capacity Act 2005 allows the court, pending the determination of an application, to make an order if there is reason to believe that IB lacks capacity, no more, no less at this stage. ” 24.The much lower threshold test in relation to interim declarations were well in mind, as is exhibited by the judgment of Her Honour Judge Carr. On the papers that I have seen, according to Judge Carr's judgment and given the [M]'s own submissions as to the nature of IB's disability, such an interim declaration was not only correct, but inevitable. Short judgments given in Applications for Permission to Appeal are rarely, if ever, regarded as citable authorities. King LJ, is here reciting only what she considers to be uncontroversial law, she plainly did not regard herself as endorsing any formulation of the test. The gateway Judge in the Court of Appeal is directing him or herself only to the relevant criteria relating to permission to appeal. That is why such judgments are not to be regarded as citable authorities.

[65]There can be no doubt that the cogency and quality of evidence required to justify a declaration of incapacity, pursuant to Section 15, will be greater than that required to establish the interim test. However, it is important to emphasise that the presumption of capacity is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the ‘Mental Capacity Assessment’ did that a ‘possibility’, even a ‘serious one’ that P might lack capacity does justification to the rigour of the interim test. Neither do I consider ‘an unclear situation’ which might be thought to ‘suggest a serious possibility that P lacks capacity’ meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act. In exchanges with Counsel the test has been referred to as ‘a low one’ or ‘a much lower threshold test at the interim stage’. Additionally, when I look, for example, at the words of the Judge in Re FM I am left with a real sense of unease, particularly as the facts in that case appear to have some similarity to those here.

[66]At para 17, King LJ, records the following: “The judge was, therefore, amply satisfied that the test under Re: F was satisfied, saying:” i. "It is absolutely clear and plain that the test was amply satisfied on any basis, in fact, even on what the M has to say in that she accepts that her daughter is autistic, that she will not do things and cannot do things. So even what M submits to me, it is absolutely plain that section 48 is satisfied."

[67]In the passage quoted the trial Judge appears to be saying that the Section 48 criteria could be met adequately on the sole basis of what the M said in evidence i.e ‘her daughter is autistic … she will not do things and cannot do things’. This contains a worrying and in my view, dangerous elision between autism and incapacity. As such, it threatens individual autonomy, the importance of which was emphasised, in striking language, by Lord Reid in S v McC: W v W

[1972] AC 25

"English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d'état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions."

[68]This principle, if it requires further illustration, finds it in various authorities e.g. Sidaway v Board of Governors of the Bethlehem Royal Hospital

[1985] AC 871

; Re B (Adult: Refusal of Medical Treatment)

[2002] 2 All ER 449

. A conclusion that an individual lacks capacity on a given issue may have a profound impact on his liberty, both physically and intellectually. J is, as I have recorded above, jealous to guard both his intellectual and emotional freedom. It is only right that the Court should do so with similar vigilance.

[69]Ultimately whilst I recognise that, for a variety of reasons, it will rarely be possible at the outset of proceedings to elicit evidence of the cogency and weight required by Section 15, I think it is important to emphasise that Section 48 is a different test with a different and interim objective rather than a lesser one. ‘Reason to believe’ that P lacks capacity must be predicated on solid and well reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.

[70]In the course of exchanges Ms Sprinz, whose careful reflections on these issues I found to be both impressive and helpful, suggested that there was an analogy to be drawn between the inter-relationship of these provisions with those of Section 38 and Section 31(2) of Children Act 1989. Each of these two important pieces of social welfare legislation has much to learn from the jurisprudence of the other. However, as Ms Sprinz recognised as she developed her submissions, this particular comparison is unhelpful. Section 38, of the Children Act, is set at a low threshold in order to take protective intervention for children, whilst Section 48, Mental Capacity Act, directly engages the autonomy of an adult in a legal framework where the presumption of capacity on individual decisions remains central throughout. Thus whilst the posited analogy does not hold, it serves, paradoxically to illustrate the extent and significance of the difference.

[71]Having honed the test in the way that I set out above, I am entirely satisfied that it is not met in J’s case. In summary: the purpose of the assessment was not explained to J; the analysis of the extent of J’s understanding of the relevant information is superficial and incomplete; the ultimate reasoning underpinning the conclusions of the assessment is vague and unsatisfactory. It would be entirely disrespectful to J to curtail any aspect of his autonomy on the basis of such unsatisfactory evidence. I am entirely unclear as to whether J has capacity to decide where he lives or not. Accordingly, even on an interim basis, the presumption of capacity has not been rebutted. These are important principles which must never be eclipsed by a paternalistic emphasis on welfare. To do so, lets in the dangers Lord Reid alluded to in S v McC: W v W(supra). Further, I would add, to conclude otherwise, on this evidence would serve only to reinforce J’s own heightened anxieties about the unmarshalled power of the State and thus potentially undermine the welfare objectives.

[72]Having concluded that the Section 48 test is not met, I have considered whether I can exercise the declaratory and injunctive powers of the High Court under its inherent jurisdiction. I may do so if I am satisfied that J is a vulnerable adult, at risk of harm, whose autonomy has been compromised in relation to his decision making processes and who may be sufficiently protected by this relief.

[73]The No Secrets Guidance 2000 issued by the Department of Health defines a vulnerable adult at paragraph [2.3] as a person- “who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation”. Mr Justice Munby (as he then was) defined a vulnerable adult in the context of the inherent jurisdiction in the following terms in Re SA (Vulnerable Adult with Capacity: Marriage)

[2006] 1 FLR 867

“[82] In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.”

[74]Munby J was clear that it would be inappropriate to define or circumscribe any group of people who might fall into this category. He put it in this way:

“It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”

[75]Munby J was also keen to emphasise that this categorisation was not to be regarded as existing separately nor restraining the jurisdiction:

“I am not suggesting that these are separate categories of case. They are not. Nor am I suggesting that the jurisdiction can only be invoked if the facts can be forced into one or other of these headings. Quite the contrary. Often, indeed, the facts of a particular case will exhibit a number of these features. There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.”

[76]It is also helpful to consider Munby J’s reasoning as to the scope and ambit of the inherent jurisdiction in this sphere:

“It will be noticed that I have referred to the inherent jurisdiction as being exercisable not merely where a vulnerable adult is, but also where he is reasonably believed to be, incapacitated. As I have already pointed out, it has long been recognised that the jurisdiction is exercisable on an interim basis "while proper inquiries are made" and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention. That principle must apply whether the suggested incapacity is based on mental disorder or some other factor capable of engaging the jurisdiction. As Singer J put it in Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [9], and I agree, the court has power to make orders and to give directions designed to ascertain whether or not a vulnerable adult has been able to exercise her free will in decisions concerning her civil status”

[77]Inevitably, the Court of Appeal came to consider the challenging issues presented by vulnerable but capacitous adults. McFarlane LJ, endorsed the approach taken in Re SA,in Re L(Vulnerable Adults: Court’s Jurisdiction)(No.2)(CA)

[2012] 3WLR1439

[78]Considering the intrinsic threat posed by the imposition of protected welfare measures on an adult with capacity McFarlane LJ, concluded: “I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of 'vulnerable adults' for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there. ” “The appellant's submissions rightly place a premium upon an individual's autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA): ” a) Under constraint; or b) Subject to coercion or undue influence; or c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.

[79]Munby J’s exegesis of the case law was also approved:

“I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case. ”

[80]Similarly, the Court of Appeal did not seek to delineate the category of cases to which the jurisdiction might apply. The following paragraph of McFarlane LJ’s judgment requires to be highlighted:

“For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court's protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily.”

[81]Finally, Maurice Kay LJ, encapsulates the balance that requires to be achieved between the competing rights and interests that have been analysed above, in an enviably succinct paragraph: “Where a person lacks capacity in the sense of s2(1) of the MCA 2005, he has the protection provided by that statute. A person at the other end of the scale, who has that capacity and is not otherwise vulnerable, is able to protect himself against unscrupulous manipulation, if necessary by obtaining an injunction against his oppressor. This case is concerned with a category of people who, in reality, have neither of those remedies available for their protection. It would be most unfortunate if, by reference to their personal autonomy, they were to be beyond the reach of judicial protection. For the reasons given by my Lords, they are not. The inherent jurisdiction continues to exist. I have nothing to add as to its scope”.

[82]It would be unconscionable and socially undesirable if, due to the weaknesses of an assessment which failed satisfactorily to resolve whether there are reasons to believe that J lacks capacity, he were to find himself beyond the reach of judicial protection. I am clear that he is not. The question that arises is how he can most effectively be protected with the least intrusive and most proportionate curtailment of his autonomy.

[83]The starting point is that a thorough, MCA compliant assessment of capacity be undertaken immediately. All agreed in exchanges, that in the circumstances of this case, this should be undertaken by a Consultant Child and Adult Psychiatrist. This judgment should not be taken as requiring an assessment to be conducted by a psychiatrist in every case of this kind. Frequently, that will simply not be possible in the time available nor will it always be necessary.

[84]When the report is available, it will be necessary to revisit the question of capacity and therefore jurisdiction. I am entirely satisfied that the inherent jurisdiction of this Court permits J to be protected whilst these investigations resume. I have already set out the benefits of J remaining in the unit and have no doubt at all that to do so is in his best interest. Without revisiting these issues I would emphasise that the primary advantage that the unit offers to J is the opportunity of interacting with other people, precisely that for which he has no appetite and would wish to avoid.

[85]Having established jurisdiction, a question then arises as to how to frame the injunctive relief. The wide scope of this relief was considered in detail in the Court of Appeal in Wookey v Wookey[1990]1Fam126 and revisited in P v P [1999]2FLR857. Whilst the relief available will invariably be bespoke, there are some identifiable characteristics to it which cast light on its application. Injunctive relief is a discretionary remedy, it acts in personam and it is derived from equitable principles. Furthermore, it may only be granted to those amenable to its jurisdiction and it must be capable of being put into effect. It follows logically from these general propositions that the injunction must serve a useful purpose and have a real possibility of being enforced in personam.

[86]Central in considering the extent of the relief to be granted is the requirement to identify a balance between the protection of the individual and respect for his liberty. Thus, the order must reflect the tension between these two competing rights and obligations. The interference must be the minimum possible and proportionate to the identified objectives. It should also be for the shortest duration. It follows that the need for the restriction should be kept in regular review.

[87]Miss Gilman, who has acted on behalf of M, has put her case with great fidelity to her client’s instructions and with considerable sensitivity. M, as I have referred to earlier in this judgment, has functional difficulties. These render her almost uniquely unable to care for her children because she is unable to disentangle her own distorted anxieties from theirs. The effect is to reinforce their instinct to recoil from the world. It is plain to me, as Miss Gilman has effectively highlighted, that M loves each of her children greatly, even though J struggles to reciprocate the emotion or understand it. She delights in their dry and ironic humour and though her actions can have adverse consequences, she is highly motivated to protect them from the world. The threshold criteria pursuant to Section 31(2) is met abundantly here, it does not, in this case, connote blame or attract censure. It is the unfortunate coincidence of the distorted functioning of M and her boys.

[88]As J has emphasised, he is motivated to protect “freedom of mind”, always an illusive concept. He is not concerned with freedom of the body. There is no evidence that he feels his physical movements to be restricted in the unit in any way at all. The identified danger to his welfare development is a return to M’s home which, I repeat, has been identified by the experts as a ‘kind of suicide’ for him. Accordingly, I do not consider the injunction should be drafted in terms which compel him to live in any particular place but I do want to restrain him from living at M’s home. This I believe to be the proportionate intervention having regard to the principles I have set out above. It is to endure only until I reconsider the question of capacity further and inevitably that of jurisdiction too when a detailed capacity assessment has been completed.

Cited in 12 later judgments

and 3 more of the most senior