City of Sunderland v MM & Others



Judge: HHJ Moir

Citation: [2009] COPLR Con Vol 881

Summary: This judgment is of some importance because, on the very specific facts of the case, HHJ Moir declared that the Article 8 rights of a person other than P had been breached by the denial of contact between P and a person with whom they enjoyed family life for a period between August 2006 until a period of observed contact directed by the Court took place in July 2008. RS and MM were both 80 and had cohabited for roughly 4 years, having rekindled a childhood acquaintance following the deaths of their respective partners. HHJ Moir found (at paragraph 7) that they enjoyed an intimate personal relationship giving rise to an obligation upon and on behalf of the local authority to respect their private and family life. The local authority justified the interference with that right on the basis that it was necessary to protect MM.

HHJ Moir set out in some detail the chronology following the decision to terminate contact between the two (which appears to have been taken, in the first instance, by the care home at which MM was then residing following an admission to hospital and a subsequent transfer to that facility). In very brief terms, that decision was taken in large part because of concerns raised by MM’s daughters and that, to a very large extent, the dispute as to contact was one between private individuals.

HHJ Moir noted that, without apportioning blame, the history made sorry reading and that the reality of the situation was that for 10 months the whole issue of contact between the two was put on hold (paragraph 18). She accepted the proposition advanced by the OS that administrative difficulties such as had occurred in the case before her did not render the continued and extended infringement of ECHR rights necessary and proportionate (reliant on a ECtHR case of Olsson v Sweden [1998] 11 EHRR 259. She therefore found (paragraph 18) that there was a necessity that “any issue in relation to the upholding of rights must be determined expeditiously as delay in the decision-making process may itself amount to an infringement of rights.” On the facts, she found that there was unacceptable delay, and she also found (paragraph 22) that it was not an adequate answer to the question of whether there was a breach of Article 8 ECHR that the local authority was attempting to monitor a dispute between private individuals. Whilst she held (paragraph 23) that there could be no argument that the local authority had acted with anything other than good faith and a proper motive, this, again, was not relevant to the question of proportionality and necessity. In the circumstances, she held (paragraph 31) that the local authority could and should have made an application to the Court of Protection (which resulted in the period of court-directed contact) much sooner. As damages were not sought, HHJ Moir did not have to rule upon whether she had the jurisdiction to award them.

Comment: This case is of some importance in three respects: (1) the recognition given to the rights of those other than P; (2) the recognition that administrative difficulties alone cannot justify extended interference with Article 8 rights; and (3) the recognition of the positive obligation imposed upon the local authority to secure the private and family life of P and those with whom they enjoy such private and family life (i.e. an obligation going beyond the more frequently found negative obligation imposed on public authorities not to interfere with those rights).

CategoryArticle 8 ECHR - Contact, Best interests - Contact, Mental capacity - Assessing capacity Date

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