A Council v X, Y & Z
Summary: This decision is the sequel to that reported as HBCC v LG (by her Litigation Friend the Official Solicitor), JG and SG [2010] EWHC 1527 (Fam), concerning the best interests of an elderly lady (now referred to as X) who suffered advanced dementia. At that earlier hearing, Eleanor King J had determined inter alia that it was in X's best interests that she reside at a care home ('QM') and that contact between X and her daughter, now known as Y, be limited and supervised. The judge had accepted that there had been problems with the contact between X and Y and that it often led to X becoming distressed. However, the judge expressed the hope that contact would improve.
Y had continued to attend QM for supervised contact visits with X. In July 2010, there was a further incident during the course of one such visit in which it was contended that Y had become physically abusive to staff. The police were required to attend as Y refused to leave the premises. This incident led the Council to inform Y that contact was suspended and to ban her from attending QM. The Council then made an application that a declaration that contact between X and Z, was no longer in X's best interests. An interim declaration was made by the Court in August 2010 that contact was not in X's best interests but the Council were required to consider what contact could take place away from QM. A further expert report was prepared directly addressing the issue of contact.
Y was unrepresented at the contact hearing but was assisted by a McKenzie friend. Y refused to cross-examine the Council's witnesses, and when giving evidence herself, responded consistently with "no comment". Eleanor King J noted that although it was regrettable that the evidence of the Council was untested, having heard the witnesses and seen the documentation concerning the contact visits, she accepted it. X was now immobile and no longer recognised Y, her dementia had advanced and moving her to a location other than QM would be potentially confusing and distressing aside from posing significant physical difficulties. The Local Authority had been unable to identify any other location where contact could take place, either because the venue itself was unsuitable or because they had declined to have Y on the premises due to her behaviour. Eleanor King J held that if she believed X could make the journey or that contact was otherwise in her best interests, she would not have let the practicalities deter her and would have held the matter over for other options to be explored by the Local Authority.
As noted above, the Judge had the benefit of an expert report prepared by a Miss S expressly to consider the question of contact. Miss S had concluded on the basis of Y's behaviour that direct contact was not in X's best interests. Eleanor King J was not satisfied that if the person supervising contact were to be altered, Y's behaviour would change. In reaching her conclusion, she made it clear that she had considered the Article 8 rights of both Y and X.
Comment: This case is of interest as a rare example of the court deciding that a total prohibition on direct contact was in P's best interests, due in large part to the conduct of a relative. In the authors' experience, the courts will go to great lengths to attempt to preserve contact even where statutory bodies and care providers have long since given up. The total breakdown in relationships in this case, and the apparently inability of Y to behave appropriately not just with X but generally, was sufficient for the court to accept that further attempts to resolve the impasse had no prospect of success.
