Judge: DJ Eldergill

Citation: [2012] EWHC 4160 (COP)

Summary: These proceedings concerned the appropriate place of residence of Ms K, a 60 year old woman with Down’s syndrome and severe learning disabilities. She had resided in the family home until the death of her mother in 1995. Thereafter, she resided in a number of different care settings. Her sister, HT, was involved in the decisions as to where she should be placed but there was a history of HT raising complaints as to the standard of care K was receiving. Nevertheless, HT had consistently visited K and there had been continuous contact.

In August 2008, K was moved to C care home. In 2009, HT moved house and wished K to be moved to a new placement nearer to her. K was taken on a home visit but refused to enter HT’s home. HT raised concerns about K’s care at C care home and complained to the Care Quality Commission in 2009. In August 2010, the Local Authority concluded that K’s continued residence in C care home was appropriate. The evidence was that K was happy and settled. HT then applied to the Court of Protection seeking:

(i) an order that she be appointed as K’s personal welfare deputy and property and affairs deputy; and
(ii) an interim order that K be moved to a suitable placement within a 20 mile radius of her home.

The application was opposed by the Local Authority.

It was not disputed that K lacked capacity in the relevant regards. By the time of the final hearing, the principal issue in dispute was that of residence. All parties, including HT, accepted that no suitable placement within a 20 mile radius of HT’s home had in fact been identified.

The Official Solicitor, Local Authority and an Independent Social Worker all considered that it was in K’s best interests to remain at C care home. The ISW reached this conclusion on the basis that, whilst family relationships are important, the balance weighed in favour of maintaining the stable, consistent high quality care K had been receiving. In light of this (and other factors), the Official Solicitor sought a final declaration that it was in K’s best interests to reside at C care home. HT accepted that in the interim K needed to remain there but did not wish the Court to make a final order lest a suitable placement be identified in the future.

District Judge Eldergill noted that it is not open to the Court to make a best interests determination on a speculative basis. As there was no suitable placement for K in the area where HT lives, it is in K’s bests interests to remain living at C care home. The Judge set out in some detail the evidence as to K’s wishes and the basis on which he had reached this conclusion. Whilst HT had been dedicated to K, there was evidence that K did not enjoy the contact in its current form and HT’s attitude to the care home had not always placed K’s interests first. Further, District Judge Eldergill concluded that a final declaration would be appropriate on the following grounds:

  • The process of assessing placements has taken place and HT had already had the opportunity to suggest alternatives;
  • A final order would bring finality to a lengthy process and enable the parties to engage with the proposed contact arrangements rather than continue to pursue alternatives;
  • The interference with the Article 8 rights of K and HT were lawful, proportionate and justified.

Comment: This is an example of a case where the Court has to balance the rights of family members with P’s interests in continuity of care. The editors note that this is not the only example of a case in which the Court has declined to find that it is in P’s best interests to be moved where a family member has themselves relocated (see for example NK v VW in which Macur J rejected NK’s application for his mother’s place of residence to be changed at the permission stage). It is also of note that the Court favoured the certainty that would be afforded by a final declaration.

CategoryBest interests - Residence Date


Sign up to our Mental Capacity Law Newsletter

If you would like to subscribe to our newsletters please click the link below.


Call +44 (0)20 7832 1111 for more information

Barrister portfolio


Click the + icon next to any barrister to add their profile to this portfolio.

Barrister Call CV Email