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Judge: Hayden J
Citation: [2019] EWHC 399 (Fam)
Summary[1]
This is the follow up to the permission decision of Baker LJ reported as Re BF, and represents the substantive hearing of the application before Hayden J for declarations from the local authority that they had discharged their obligations to the man in question, now identified as Ronald Meyers, under the Care Act 2014 and Human Rights Act 1998.
The factual background to the case can be found in our previous report, but in short terms the dilemma before the court was what, if anything, could be done to secure the interests of a 97 year old man with physical disabilities who was determined to live with his son in deeply squalid conditions in the father’s home.
Hayden J was satisfied that Mr Meyers “was entirely capable of and has the capacity (within the definition of the Mental Capacity Act 2005) for determining where he wishes to reside and with whom.” Hayden J also made clear that he did not consider that Mr Meyers was vulnerable so as to bring him within the ambit of the inherent jurisdiction merely because he was blind, and he was clear that Mr Meyers did not satisfy the criteria of being of “unsound mind” so as to bring him within the scope of Article 5(1)(e) were his circumstances to amount to a deprivation of his liberty.
Normally, this set of conclusions would suggest that no court could intervene, and that any choices that Mr Meyers made, no matter how apparently unwise, would have to be respected. Hayden J, however, considered that Mr Meyers’ son, KF:
Hayden J therefore required an order to be drawn up to reflect the objective that:
Although Counsel for the parties had agreed in the hearing with this proposition, they had both reconsidered and had subsequently contended such an order would give rise to a deprivation of Mr Meyer’s liberty. Hayden J, however, held that:
Hayden J refused to make the declarations sought by the local authority that it had discharged its responsibilities towards Mr Meyers. He did not then prescribe what the local authority should do, although noted that he considered that the ideal solution would be “for Mr Meyers to return to his bungalow with a suitable package of support, his son having been excluded from the property. I should hope that the Local Authority will endeavour, within the framework of appropriate injunctive relief, to make provision for contact between Mr Meyers and his son.”
Comment
All the comments that we made in relation to the BF judgment stand in relation to the final judgment in this case, although (on its face) the judgment looks even more like a case of ‘be careful what you wish for’ in relation to disability-neutral approaches to intervention predicated upon vulnerability. In practical terms:
As to Article 5 ECHR, we presume that Hayden J took the view that there was no deprivation of liberty whereas Baker LJ had proceeded on the basis that there had been because the order as it stood before Baker LJ had required Mr Meyers to live at the care home, whereas Hayden J was seeking to bring about a restriction in the choices available to Mr Meyers rather that confining him to a particular location. We note that, had this case come before Sir James Munby, he might have taken a somewhat different view as to whether Mr Meyers would be deprived of his liberty by virtue of the order to be made by Hayden J. In JE v DE [2006] EWHC 3459 (Fam), in the long ago days of 2006, he observed in relation to a submission that a local authority:
Finally, those following the Government’s intention to introduce a domestic abuse bill may want to test the facts of this case against the scope of that bill, because it would, on its face, potentially fall within them (the bill, importantly, making clear that domestic abuse can be perpetrated by adult children upon their parents as they are ‘personally connected’). It is perhaps striking, one may think, that there is no suggestion in the context of that bill that orders could ever be made against the victim of abuse, as opposed to the perpetrator.
[1] Katie having been acted for the local authority, she has not contributed to this report.
[2] There is no such right, at least to be spelled out of the MCA: the MCA, rather, provides a person cannot be taken to be unable to make a decision merely because they make an unwise decision. That the decision is unwise may well be a trigger to investigating whether, in fact, they have capacity to do so.
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