Judge: His Honour Judge Nicholas R. Marston
Citation:  EWCOP B26
This was a case that was decided in May 2017, but only appeared on Bailli in February 2018. P was an elderly lady who had cognitive impairments after suffering a series of strokes. P was living in a nursing home and brought proceedings pursuant to section 21A challenging her deprivation of liberty. The options available to the court were (1) for P to remain living in the South West of England in the nursing home close to two of her children, or (2) for P to move to the Midlands to the home of her ex-daughter in law, to be cared for by a range of other family members and friends, most of whom would be providing care voluntarily. The court held that both were viable options.
There was no reliable evidence of P’s current wishes and feelings but the Judge held that it “was however very clear on the evidence that she would, prior to her stroke, have wanted, should anything happen to her, to be looked after by her family and not in a care home.”
P’s representatives submitted that when comparing the two options, the “best interest balance would come down decisively in favour of C’s home in the Midlands.” Given that this option enabled P to be cared for by her family and is the least restrictive option, this is not surprising.
The complicating factor in this case was that two of P’s children who lived in the South West, and whom she saw every couple of days (it was accepted by the court therefore that these were her primary relationships at the time of the decision), had made it clear they would not visit P if she moved.
The factor that weighed most heavily in the balance was what the court understood P’s wishes and feelings would be if she had capacity. HHJ Marston concluded that P’s children’s refusal to visit her in the Midlands would not have stopped her from moving there, and there “would be a strong personal and cultural belief that having looked after her family for 50 plus years it was now the time for them to look after her. ……. I find that would be reflected in what P would want for herself. If it comes to a choice of being looked after in the way that is in her best interests, the way she expected to be looked after or staying in the home I am convinced her choice would be to be looked after by her family.” HHJ Marston therefore held that a move to the Midlands was in P’s best interests.
Unsurprisingly the Court had no difficulty in rejecting their argument that moving P would be a breach of her children’s right to family life because they would not see her, saying “[t]heir refusal to take up contact is the thing which causes contact to break down not anything the court does. If moving P is in her best interests any breach of their right to a family life is proportionate and the remedy for it is in E and S’s own hands.”
Cases where parties threaten to cut off contact with P if their arguments do not succeed are difficult for the courts, and unfortunately, all too common. On the one hand it is dangerous for a court to accede to what could be considered a threat on the part of litigants as to how they will behave if the litigation does not go their way, but on the other, the court must honestly evaluate the impact on P of making any particular decision, whatever the rights or wrongs of the conduct in question. What is interesting about this case is the way the judge felt able to make findings (based on what he had learned about P during the proceedings and her previously expressed wishes and feelings) about what P would want in the circumstances facing the court, if she had capacity.