Judge: HHJ Burrows
Citation:  EWCOP 12
In this case, the court considered the residence and contact arrangements for a 37 year old man, and the place within those decisions for his wishes and feelings.
ZK had, as a child, developed Landau-Kleffner Syndrome (also known as acquired aphasia with epilepsy). ZK was not deaf but not unable to understand aural language. Until September 2020, he lived with his mother. In 2017, concerns had been expressed about whether he was to be married, leading to a Forced Marriage Protection Order application. This led to proceedings before the Court of Protection, during which it became clear that, despite ZK’s profound communication difficulties, it was possible for him to make progress in language development.
By September 2020, ZK was consistently expressing a wish to leave the home he shared with his mother. He expressed the wish to leave quickly. He did not wish his mother or family to have notice of his move. The Local Authority conducted a best interests meeting on 11 September 2020, having assessed ZK as lacking the capacity to make the decision. The decision was to move him out. In his evidence, ZK’s nephew, HM, described the shock and sadness it caused to the family when, on the day of the ‘removal.’ ZK “just did not return from his community activities.” HHJ Burrows indicated that he understood that,
The separation after removal was sanctioned by the court (it is not clear from the judgment why an application was not made in advance).
The case then returned to HHJ Burrows for him to consider whether it was in ZK’s best interests to remain away from his family home and, indeed, to move to a new placement, or for him to return to his family home and their care. By that point, it was clear that there had been a big improvement in ZK’s communication skills, a view “shared by everyone who knows ZK and has known him for some time, except his family. In evidence given by HM, ZK’s nephew, he was unable to see the improvement in his uncle’s ability to communicate, his engagement with others or his happiness. I do not think HM was being wilfully blind or churlish in what he said. I am quite sure that he and the rest of ZK’s core family genuinely believe him to be unchanging, entirely incapable of anything but the most basic communication, and that he will remain the same in the future” (paragraph 13).
HHJ Burrows was at pains to emphasise that whilst there was before him sufficient evidence to displace the statutory presumption of capacity, capacity was in ZK’s case a subject requiring “serious consideration and scrutiny in view of [his] progress,” and the court would be returning to revisit the situation with the benefit of a jointly instructed expert.
HHJ Burrows was able to dispose of the question of deprivation of liberty easily, identifying that the arrangements for him at the placement crossed the line to confinement to which ZK could not consent (but also noting that “even if he were to reside at home with a package of care provided mostly or entirely by his family, he would also be deprived of his liberty there” (paragraph 22).
In terms of ZK’s best interests, the position was starkly set out. On behalf of the local authority and the Official Solicitor (for ZK) it was argued that “ZK is doing extremely well where he is, doing what he is, and he wants to remain there. To deny him that wish and send him back to his family would be a serious blow to his confidence and self-esteem, as well as a serious restriction on him continuing to do what he wishes to do” (paragraph 26).
On behalf of the family, three points were made.
First, that the removal had been illegal. HHJ Burrows did not accept that this was the case:
Second, the removal was the cause of a lack of trust towards the family towards the statutory body. HHJ Burrows identified that this was right, but that the law was clear:
Third, it was submitted that the question to be asked was “why not home?”:
HHJ Burrows found, in looking at all the relevant factors as required by the best interests test, that he was “unable to shift the focus of my considerations of ZK’s best interests from the fact that his wishes and feelings seem so clear and consistent. Or, put another way- using Ms Jackson’s terminology “why not let him do what he wants?” He continued:
HHJ Burrows was at pains to emphasise that this was not to rule out a future move home. Indeed, it might well be that with the development of ZH’s communication skills, along with his sense of autonomy, there could come a time when he would be able to make that decision for himself. That was, however, some way down the line.
As regards contact, HHJ Burrows identified that the family’s access to ZH should be regulated by what ZH wanted, with regular reviews of the contact plan in light of his wishes and feelings.
A procedural point arose as to expert evidence. HM, a litigant in person, raised the issue of whether he should be required to fund part of the jointly directed expert report, as he asserted he had too little income and capital. HHJ Burrows accepted his evidence, and directed that the cost should not be split so as to include a contribution from him. More fundamentally, however, HHJ Burrows identified that he could not see why he needed to be a party, because he was “simply another person putting forward the same arguments as his grandmother. I am minded to discharge him as a party, but direct that he be provided with documents in the case, that he be invited to attend future hearings, and to contribute his views on his uncle’s best interests by email in advance of the hearing as he has done until now” (paragraph 37).
This judgment is of very considerable interest for a number of reasons. The first is that the court was led so squarely by ZH’s wishes and feelings which were being asserted, it seems, despite strong familial pressure to the contrary. The second is the neat formulation of a point sometimes forgotten, namely that Article 8 ECHR gives a right to (respect for) family life – it does not impose an obligation upon the person to have a family life with those who they may not wish to. The third is the extent to which the court identified that ZH was on a trajectory towards greater autonomy, and considered it its duty to seek to support that trajectory.
The fourth point is HHJ Burrows’ rejection of the argument that ZH had been unlawfully removed from his home. Not least in light of some observations of Sir James Munby faced with one too many situations where the person had been removed against their will without any application to court, there has been a distinct degree of fuzziness as to whether (and when) such applications are required. This fuzziness is discussed here; this case reinforces the point reached in the paper that an application is not required (even if it may well be very advisable if there will otherwise be an impact upon ongoing relationships) if the primary reason for removal is to give effect to the person’s wishes and feelings.
The last point which bears highlighting is HHJ Burrows’ unfeigned disgust for the fact that at least some of those who had in the past worked with ZK had taken the attitude that a General Practitioner had in March 2017, namely that he wished to confirm that ZK is “mentally retarded, deaf, dumb, unable to speak and unable to express his feelings due to Landau Kleffner Syndrome” (paragraph 4). HHJ Burrows was at pains to record his (remote) judicial visit, the detail of which merit reproduction to show just how wrong this was. Whilst ZK might be unable to understand aural language, HHJ Burrows was clear that: