Judge: District Judge Eldergill
Citation:  EWCOP 25
This case concerned LC’s (Mrs C’s) best interests in relation to residence, contact with her husband and a deprivation of her liberty.
Mrs C was a 74 year old woman with a diagnosis of dementia, diabetes and strike-related illness. Mrs C had been married to Mr C for over fifty years. Until June 2010, they had lived together in their matrimonial home. In June 2010, there was an incident in which a carer reported that Mr C had pushed Mrs C in the face. Mr C pleaded guilty to assault and was given a community sentence. Following this incident, she was taken to a care home as a place of safety and has remained there ever since.
Mrs C did not wish to see her husband for some time after the assault. After 8.5 months, Mrs C wished to see her husband. Gradually, Mr and Mrs C rebuilt their relationship. The current arrangements were that Mrs C goes to the matrimonial home twice a week for up to four hours and her husband is able to visit the care home whenever he likes. The couple have “supported rather than supervised” telephone contact at Mr C’s instigation. Mrs C did not have the capacity to initiate a telephone call.
Mr C contended that it was in his wife’s best interests to return to the family home. However, the local authority disagreed and contended that it was Mrs C’s best interests to remain in the care home and for all contact with her husband to be supervised.
One factor for the judge’s consideration was that the local authority could not afford or would not agree to fund a package of care at home which costs more than £700 per week. In particular, the local authority would not fund 24 hour care for Mrs C in the matrimonial home. Having regard to the level of funding, the judge had to decide which one of three options was in Mrs C’s best interests:
After making detailed findings of fact and weighing up the various competing opinions, District Judge Eldergill decided that it was in Mrs C’s best interests to remain in the care home. Of particular concern was the evidence that Mrs C’s needs had increased since 2010 but the local authority would not or could not fund more than £700 of care per week which was the same level of care that Mrs C received in 2010. The judge concluded that Mrs C would not receive the care at home that she required.
In reaching a best interests decision, District Judge Eldergill carefully considered the various factors set out in section 4 MCA 2005. In particular, he was satisfied that Mrs C’s present wishes and feelings were to live at home with her husband. However, he was constrained by the local authority’s position regarding funding. He stated at paragraphs 26-27
26. This court does not have the power to review the lawfulness of this financial needs assessment and it has not been challenged by any of the parties by way of judicial review.
27.I must proceed on the basis that the local authority’s financial needs assessment in this respect is lawful and binding on me unless and until it is set aside by the appropriate court or modified by the local authority, if ever.”
Therefore, despite finding that it was Mrs C’s wish to return home to her husband, the judge held that it was not in her best interests because she would not receive the care she required on the level of funding that the local authority was prepared to provide. No viable alternative care package, whether from friends, family or volunteers, had been put forward by Mr C.
In addition to the factual issues, District Judge Eldergill made a number of general remarks about Court of Protection procedure and hearings. First, he criticised the local authority’s “unacceptable delay” in bringing the matter to court. Mrs C was admitted to the care home in June 2010 but it was not until December 2012 that the local authority applied for declarations in relation to residence, deprivation of liberty and other issues. After further delay, the matter reached the judge on 7 March 2014, by which time Mr and Mrs C had been separated for almost four years without a hearing of the issues. The judge said:
“Bearing in mind the length of her marriage, any objective view of her best interests should have led a local authority to facilitate an early determination of the issues. That was the overriding procedural consideration.”
The judge was also critical of the documentation that he received:
“The Court received a 1500-page bundle of documents which included applications and application notices, orders, directions, position statements, capacity assessments, witness statements, exhibits, correspondence, a jointly instructed independent social work report… a jointly instructed independent SALT report, Scott Schedules/Particulars of Allegations and preserved Deprivation of Liberty forms. In my view, it is fair to say that the bundles were confusing and the court worked from two different bundles.”
He also expressed several concerns about the way in which the local authority had prepared its care and about the quality of some of its evidence, for example: