Mental Capacity Case

A Local Authority v ED

Roderic Wood J

Summary: This case concerned ED, a young woman in her early 30's. Litigation between the responsible local authority and her parents stretched back to 2007. After a 12-month stay, her parents were granted permission to restore the proceedings in late 2011, seeking, amongst other things, a declaration that it was in her best interests to return to live at the family home. The judgment records that the grant of permission proved to be an "open-sesame" for the re-litigation of a great range of issues. In August 2013 the parents changed their case to seek a declaration that it was in ED's best interests to reside at a residential care home closer to the family home. No explanation for this volte face was provided. The matter was listed for a final hearing for ten days in October 2013, but the day before the hearing was due to begin the court was notified that it was more likely than not that the parents would agree to the orders that were ultimately made. In a short judgment Roderic Wood J referred to the "inordinate" quantity of paper the case had generated (including 740 pages of witness statements and almost 300 pages of expert evidence) and the "astonishing" cost to the public purse since 2011 (approximately £138,000 for the local authority, £82,000 for the parents and £130,000 for the Official Solicitor, who was acting as ED's litigation friend).

Comment: This case underscores the vital importance of conducted and case-managing proceedings in the Court of Protection in accordance with the overriding objective. The very significant costs that were incurred since 2011 represent a portion of the total costs since the litigation began in 2007 and Roderic Wood J noted that the final orders, to which the parents ultimately consented, dismissed any hope of ED coming to live with them and a significant reduction in her contact to them. One point that might be of broader interest to readers is the expert evidence as to the removal of ED's pubic hair, which is an issue that her parents raised in the proceedings and has featured in a number of Court of Protection cases. The parties obtained expert evidence that there was a duty to shave a Muslim woman's pubic hair (both for religious and cultural reasons) but that there is an exemption for those incapacitated, such as ED. This evidence was not challenged by any of the parties.