J v Luton Borough Council and Others
Summary
This matter related to an appeal from orders made by Roberts J in July 2023, in which she was considering parallel proceedings in the Court of Protection and Family Division. The Court of Protection application related to J, described as being in his early 20s and having severe learning disabilities. J and his family had moved from Afghanistan to the UK as refugees, and J was the eldest of seven siblings. He lived with his parents and attended college, and had been naturalised as a British citizen. His family wished for him to travel to Afghanistan with them for a holiday; this followed the family stating to the local authority in 2022 that there were plans to take J to Afghanistan to visit family members, enter into an arranged marriage and bring his wife back to the UK. Mental capacity assessments were undertaken and J was assessed as lacking capacity to marry and to engage in sexual relations. The local authority obtained a Forced Marriage Protection Order (FMPO) in 2022. The family accepted the capacity assessment, and it is understood that there were not further plans for him to marry.
On 14 July 2023, the family made an oral application for an order that J should be allowed to travel with the family to Afghanistan on 31 July 2023 for approximately five weeks. Considering this application on 26 July 2023, Roberts J made an order that it was not in his best interests to make this trip, and reinforced that decision by continuing an order made by the Family Division that prevented J’s family from removing him from England and Wales. Giving an ex tempore judgment, the judge held that she was satisfied that J lacked capacity to decide whether to undertake the trip. Roberts J had then refused the family’s application for the following main reasons:
- The Foreign Commonwealth and Development Office gives extremely clear advice that there are significant risks to British nationals travelling to Afghanistan. This included a heightened risk of detention for British nationals. There is no access to consular support to assist if the family were to encounter difficulties, and no realistic way of mitigating these difficulties.
- If J were to become stranded in Afghanistan, due to his significant needs for care and support, he would be at particular risk.
- While the court recognised that there were benefits of traveling with family and revisiting the country where J had previously lived, these did not outweigh the risks discussed by the FCO.
Roberts J noted that her decision was one specific to the time at which it was taken, and if the risks were to change, she would not rule out a future trip to Afghanistan.
The Official Solicitor sought permission to appeal on the following grounds:
1. The court failed to properly conduct a best interests analysis as required by s.4 of the Mental Capacity Act 2005. Specifically:
(a) The court placed undue weight on the Foreign, Commonwealth and Development Office ("FCDO") guidance that British citizens should not travel to Afghanistan to the exclusion of other factors in s.4 of the MCA.
(b) The court failed to give any weight to J's wishes and feelings, as they were not mentioned at all during judgment;
(c) The judge failed to give any or any sufficient weight to the specific mitigation that the family described in order to protect J;
(d) The court failed to give sufficient weight to J's values and beliefs, and the views of his family;
(e) The court failed to give sufficient weight to the risk of harm to J in not travelling with his family.
(f) A proper assessment of the above factors would have resulted in the granting of the application that it was in J's best interests to travel to Afghanistan as planned.
2. The decision amounts to a breach of J's Article 14 rights against discrimination in securing his Convention rights, namely Art 8, on the basis of 'other status', namely his disabilities.
Permission to appeal was granted on both grounds, with the court considering that an appeal would not be academic because the issue was likely to arise again for this family. However, at the hearing, the Official Solicitor accepted that Ground 2 did not add anything to Ground 1.
The Official Solicitor argued that Roberts J had given insufficient weight to J’s wishes and feelings, which were that he strongly wished to go on the trips and was excited about it, and had treated the FCDO advice as decisive. The Official Solicitor argued that the court had not sufficiently considered this question from J’s perspective, and that J would have had decided to go (as had the rest of his family, save for his father) if he had capacity. The Official Solicitor further argued that the FCDO advice was ‘generic’ and that the family “may have their own means of assessing risk” (paragraph 18). J’s family noted that people from the UK were now regularly traveling to the Afghanistan.
The local authority argued that Roberts J had been alive to the relevant factors and was entitled to reach the conclusion that she did. The local authority took the position that a determination of best interests would depend strongly on the particular circumstances of the case.
The Court of Appeal dismissed the appeal. Giving the sole reasoned judgment, Peter Jackson LJ noted that “assessing risk in cases of this nature it is important that the fullest consideration is given to the importance of a person's heritage and family relationships, with an awareness that an unduly risk-averse approach can itself cause harm or welfare disadvantage” (paragraph 27). However, he reached the very clear conclusion that Roberts J had done so. Peter Jackson LJ on to note that there likely ought to have been further scrutiny of the risk where “the court had no information about why asylum had been granted to this family, and …J would have had to travel on his British passport as his Afghan passport had expired. Each of these issues was potentially relevant to an assessment of the risks that J might face in Afghanistan” (paragraph 28). Peter Jackson LJ considered that Roberts J had “looked in the matter very fully’ and ‘the judge was fully aware of J’s perspective and the importance of the trip to him, and also of the family’s perspective… the fact that she did not mention them individually in giving judgment did not advance the appeal” (paragraph 29). He found that the Roberts J had not treated the FCDO guidance as doctrine, but had used it to bring to “the court’s consideration a series of facts that were not in reality in dispute. The judge's assessment that those facts gave rise to risks that tipped the best interests balance was no more than a conventional judicial exercise, taking account of the nature, likelihood and consequences of the feared harm. Her decision, clearly reached with regret, was soundly based and amply reasoned” (paragraph 30).
Comment
The case reiterates the wide breadth given to first-instance judges in making decisions on best interests, and the difficulty of bringing an appeal on such a judgment. Indeed, we are aware of only one judgment where the Court of Appeal has reached a conclusion that a first instance judge was flatly wrong in their conclusions as to where P’s best interests lay. While the Official Solicitor looked to Aintree in this matter for support of her contention that greater weight should be given to J’s wishes, we would also note Lady Hale’s discussion in Aintree on the role of appellate courts in reviewing finely-balanced issues of best interests at [42]:
That is not to say that I would have reached the same conclusion as the judge in relation to each of these treatments […] The treatments in question were all highly invasive. […] Cardiopulmonary resuscitation, on the other hand, although it had been used successfully in the past, is designed to restart a heart which has stopped beating or lungs which have stopped breathing, in effect to bring the patient back to life. I can understand why the judge thought it premature to say that it should not be attempted. But given the particular nature of this treatment, given its prospects of success, and particularly given the risk that, if revived, the patient would be even more seriously disabled than before, I would probably have declared that it would not be in the patient's best interests to attempt it. But if the judge has correctly directed himself as to the law, as in my view this judge did, an appellate court can only interfere with his decision if satisfied that it was wrong: Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 1 WLR 1911. In a case as sensitive and difficult as this, whichever way the judge's decision goes, an appellate court should be very slow to conclude that he was wrong.
While the Court of Appeal did not appear to take the view that the Lord Justices would have found differently at first instance (and might have found even greater levels of risk than did Roberts J), it is clear that its findings were in line with the sentiments expressed by Lady Hale above.
