Judge: Court of Appeal (Black LJ)
Citation:  EWCA (Civ) 1557
Summary: We make brief note of this case (which is also touched upon in relation to TA v AA, discussed elsewhere in this newsletter) in large part because it was the subject of some media coverage at the time.
In brief terms, a mother wanted to appeal against declarations by the first instance judge made in the Court of Protection that her son did not have capacity to decide upon his residence and educational arrangements and that it was in his best interests to remain in his current placement so that he could continue to attend the school that he had been attending for some time. The son had spastic cerebral palsy from birth and, resulting in significant physical and developmental disabilities. He cannot speak but ways had been found to ascertain what his responses are in various situations. The mother considered that he had capacity under the MCA 2005 to make decisions for himself and her view was supported by Dr Thompson, who was a clinical psychologist. Dr Essex is a consultant neurodevelopmental paediatrician. He disagreed with the assessment of the mother and Dr Thompson and considered that the son did not have capacity to make his own decisions.
In refusing permission to appeal, Black LJ noted that Dr Thompson’s expertise was in assessing people who have suffered a trauma, rather than those who have been mentally impaired from birth. Dr Essex had, in contrast, done very considerable work with people who had been mentally impaired from birth. The judge at first instance had much preferred the evidence of Dr Essex. Black LJ noted (paragraph 9) that “the assessment of witnesses, including expert witnesses is very much a matter for the judge who conducts the hearing.” Interestingly, neither expert had asked the son the central question of where he would live and what he would do about school. Black LJ held that the judge was entitled to prefer the evidence of Dr Essex, and that there was no prospect of a successful appeal against her decision on this point.
Black LJ also refused permission to the mother to appeal against the decision of the first instance judge – founded in significant part upon the evidence of an independent social worker – as to the son’s best interests. It would appear that the mother contended that the son was being deprived of his liberty by being required to attend school and that the judge should have considered the school in that light and concluded that it was not in his best interests to attend it or necessary for him to do so to keep him from harm. Black LJ noted that she considered it to be clear from the judgment that the judge was in fact of the view that the education that the son was receiving was good for him and was in his best interests and that he was happy at school.
Comment: Being a decision upon an application for permission to appeal, this decision cannot be cited as a precedent (see Practice Direction (Citation of Authorities)  1 WLR 1001. It is, however, of some interest as regards the approach that is taken by superior courts to the exercise of evaluation by first instance courts in the CoP sphere. It should, perhaps, be noted that the test is now as laid down by Lady Hale in Aintree v James  UKSC 67, i.e. that “if the judge has correctly directed himself as to the law… an appellate court can only interfere with his decision if satisfied that it was wrong: Re B (A Child) (Care Proceedings: Appeal)  UKSC 33,  1 WLR 1911.”
It would have been interesting to see the arguments relating to deprivation of liberty as they were addressed in the underlying judgment – prima facie (and pending the decision of the Supreme Court in Cheshire West) that it is in someone’s best interests for them to receive education at a particular case goes to whether a deprivation of liberty is justified, not whether it is objectively occurring. Similarly, contentment on the part of an incapacitated adult does not constitute consent. However, it may very well be that the matters were developed at greater length at first instance.