Judge: Russell J
Citation:  EWCOP 17
Summary: The unedifying saga of the Redbridge v G case that we have been reporting on in recent newsletters has come to an end for now at least, in the form of the judgment of Russell J in LB Redbridge v G (No 4)  EWCOP 17. For the full background, see our comment on the first judgment here.
In short terms Russell J has concluded that it is not in G’s best interests for her carer C and C’s husband F to continue to live in her house, or for her to have any contact with C or F. The judgment is, in our respectful submission, compelling for its detail and sympathetic engagement with G as an individual: it is, of particular note, that Russell J’s balance of the current (and inconsistent) wishes and feelings expressed by G – caught in the middle of the ‘spider’s web’ – with her previous past consistent wishes and feelings.
The judgment is of wider interest for two reasons.
The first is the clear holding by Russell J that she had the power to require C and F to leave G’s house:
“93. Whether or not it is in G’s best interests for C and F to continue to live with G is “a matter concerning P’s personal welfare”; s17(1) (c) expressly provides that the court can prohibit a named person from having contact with P. I intend to make an order regarding contact between C and F and G. I consider that I have powers under s 17 to make the order I have that C and F vacate G’s home, as I am making the decision on G’s behalf in relation to a matter concerning her personal welfare as provided for in s 16(1) (a) and s 16(2) (a) and s 47 (1). The latter provides that the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court. I have considered the Court of Appeal case of DL v A Local Authority & Others  EWCA Civ 253 and could under the inherent jurisdiction of the High Court, exercise the power under the inherent jurisdiction to make a mandatory injunction requiring C and F to leave the property. However I do not consider that to be necessary as the powers under the MCA are sufficient.”
The second is the approach adopted by Russell J to the revocation of a health and welfare LPA purportedly granted by G in favour of C. Russell J did not have before her sufficient evidence that G had lacked the requisite capacity at the material time, so could not revoke the LPA on the basis that such capacity is required by s.9(2) MCA 2005. However,
“95. The local authority submits that the LPA should be revoked, and I agree. The argument is put forward that the court can revoke the instrument based on the provisions of s.22(3) (a) (i) and (ii) and/or (b)(i) and revoke by virtue of s22 (4) (b). The need for a further hearing on this matter given the findings I have made in respect of C would seem to be disproportionate. On the findings I have made the provisions of s 22 (3) (a) (i) and/or (ii) are met; as it is more likely than not that C used undue pressure. It offends against logic to suggest that s22 (b) (i) can only refer to the behaviour of a donee when purporting to act under the authority of the instrument when the court has found that a donee has behaved in a way that is not in P’s best interests, particularly when the behaviour relates directly to the specific LPA; in this case health and welfare. In view of my decision regarding the evidence of ML (which I accepted) that he discussed drawing one up granting her brother that power instead, very shortly before the existing LPA was drawn, therefore I revoke the LPA pursuant to s 22(4) (b).”
The approach adopted by Russell J should is consistent with and should perhaps be read alongside the decision of HHJ Marshall QC in Re J (which appears not to have been brought to Russell J’s attention). In that case, HHJ Marshall QC rejected a submission that s.22 embodied a broad concept of unsuitability; she also rejected a that the only conduct that the Court could take into account for purposes of s.22(3)(b) was that of the donee in his capacity as donee. Rather
“11. In my judgment, the key to giving proper effect to the distinction between an attorney’s behaviour as attorney and his behaviour in any other capacity lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Second, one looks at all the circumstances and context and decides whether, taking everything into account, it really does amount to behaviour which is not in P’s best interests, or can fairly be characterised as such. Finally, one must decide whether, taking everything into account including the fact that it is behaviour in some other capacity, it also gives good reason to take the very serious step of revoking the LPA.
13… noting the court’s powers with regard to directing an attorney under s 23 of the Act… on a proper construction of s 22(3), the Court can consider any past behaviour or apparent prospective behaviour by the attorney, but that, depending on the circumstances and apparent gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arises if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course.”