Judge: HHJ Marston
Citation:  EWCOP B25
HHJ Nicholas Marston has made findings of extensive breaches of the Convention rights of P, a young woman with severe learning disabilities and autism, and her family, by Somerset County Council, in a highly critical judgment.
P was 19 and had lived with her family all her life. In May 2013 P became distressed and disruptive (possibly due to her menstrual cycle) at school and was returned home early from a school trip. That evening her mother M noticed bruising to P’s chest and reported it to the GP and to staff at the respite placement where P was due to stay during a family holiday M was due to take.
During M’s holiday further bruising on P was noticed and a safeguarding procedure was put in hand. Those investigating the injuries were criticised by the judge for failing to obtain the “easily discoverable” but key information that P had been seen to hit herself heavily on the chest during the school trip. Instead a decision was taken that P should not return home and M was informed of this on her return from holiday. It was plain that P’s whole family sought her return but P remained at the placement where her distress resulted in the prescription of aripiprazole, an anti-psychotic medication with a sedative side effect. In November 2013 she was moved to a second placement and in December 2013 a standard authorisation was granted and the local authority applied to the Court of Protection.
A nine day fact-finding hearing took place in May and June 2014. Shortly before the hearing the local authority decided not to rely on any allegation regarding the bruising which had led to the safeguarding investigation. The findings are set out in the judgment. In giving his findings in relation to M’s parenting style and relationship with professionals the judge said:
“35. Finding 22, inability to accept advice on M’s part, and finding 23 M’s rigid style both of parenting and of dealing with professionals, are important issues when considering if returning home is an appropriate option because they directly relate to issues about the care P would be getting at home. Three points need to be made first. As I have already said, given the longevity of the relationship between M and the social workers and the number of social workers involved, there are bound to be some people who don’t get on and some who do. In her evidence M told me of social workers she had had good relationships with and others (the majority it has to be said) she did not. Second, M has a strong personality, otherwise she would have sunk under the weight of cares and problems in the last 20 years and she perceives herself as having to fight for a good deal for in particular P and A. Third, as will become clear in the later parts of this judgment when I examine the conduct of the LA over the last 13 months, she and her family have had a lot to put up with. In his evidence the senior manager for social services conceded LA failures across the board and the damage that has done to the family and its relationship with the LA. Having said all of that there have in the past, prior to May 2013, been real clashes of personality and failures in communication but I cannot find that it has been proved on the balance of probabilities there has been an irrational refusal to co-operate from the family with the statutory authorities. The best evidence for that is that there was never, in the whole of Ps minority, an application in public law proceedings and no doubt if the LA had had evidence at the time of failure to co-operate on a scale which was causing P or any of the children significant harm such an application would have been made.
36. Two final points before leaving the Schedule, first the relevance to a best interests decision now of historical concerns which have never led to legal action prior to May 2013 has always been, in my view, difficult to demonstrate, so I agree with the comment in the Closing Submissions of the OS for P at paragraph 28 page 7: ‘…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.’ Second, the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.”
The independent social worker instructed recommended a return home by P and this was supported by the Official Solicitor. The judge found that the balance fell decisively in favour of a return home.
On the conduct of the local authority the judge said:
“75. In its position statement of 22/4/14 the LA concede that P was deprived of liberty and that there was a period where that deprivation was unlawful. It’s case is that was from the end of the respite care in early June to the urgent authorisation on 28/11/13. It further concedes that the deprivation of liberty and loss of her society to the family amounted to an interference with respect to their right to a private and family life contrary to Article 8 ECHR and that interference was not in accordance with the law. It argues that if a lawful process had been followed it is likely that P would have remained away from home while the LA pursued its concerns over safeguarding (the bruising issue) and in due course of time P would have moved to a residential home as they now suggest. It is conceded that if I do not think the residential home is in P’s best interests P should have been returned home at a significantly earlier date.
76. There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.
77. The LA seeks to rely on the DOL urgent authorisation it obtained on 28/11/13 to close off the period of unlawful deprivation of liberty. In the case of London Borough of Hillingdon v Neary(2011) EWHC 1377, a case that has many depressing similarities to this one, Mr Justice Peter Jackson said at paragraph 33:
‘The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in that place at all. Using the DOL regime in that way turns the whole spirit of the MCA on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case far from being a safeguard the way in which the DOL process was used to mask the real deprivation of liberty which was the refusal to allow Stephen to go home.’
78. I find that is also precisely what has happened here and the breach of Article 8 rights continues up to now.
79. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.”
The judge noted that the Official Solicitor had indicated the intention to pursue a claim for damages for breach of P’s rights under Articles 5, 6 and 8 ECHR and to make that application within the COP proceedings. We will report upon any determination made in that application if it is publically available.
We have on several previous occasions in the Newsletter – most recently in relation to the Milton Keynes v RR – had cause to note the disastrous consequences that can ensue where (entirely legitimate) safeguarding concerns give rise both to actions taken without proper lawful authority and then applications to the Court of Protection which are founded on an entirely inadequate forensic basis. This further addition to the canon makes singularly depressing reading, especially given that the events that transpired took place so recently. We have every sympathy with local authorities who are under enormous pressure to act on safeguarding concerns, but – as with cases involving children – there can be no substitute for the convening of the relevant expertise to determine the forensic basis of those concerns prior to taking matters to court. Further, and almost more importantly, it is almost impossible to emphasise too strongly the message that acting on the basis of safeguarding concerns gives no additional powers to local authorities to intervene in the lives of vulnerable adults – those powers have to be found either in statute or in the common law.
 Note, this case note draws in part on a case note prepared for the Court of Protection Handbook website by Sophy Miles.