B Borough Council v Mrs S and Mr S (by the Official Solicitor) [2006] EWHC 2584 (Fam)

Mr S was a 90 year old man who did not have mental capacity to make decisions about his care, treatment, or where he should live.  He received support from B Borough Council.  B Borough Council (the local authority) alleged that his wife, who was in her eighties, had not previously co-operated with the local authority’s care plan and had made unsubstantiated and unwarranted allegations against care staff.  Mr S had extensive care needs. He suffered from incontinence and limited mobility and his behaviour was difficult and challenging.   He had been in and out of care homes and he and his wife had received support packages at home.  Mrs S sought his placement at an EMI home but found it difficult to identify one which was suitable.  Mr S was in a nursing home that could not cope with his care needs and behaviour.  The nursing home staff informed the local authority of this.  No other nursing home was available and the local authority decided that it would be in Mr S’s best interests to reside at K hospital until a suitable place could be found.

Based on her previous behaviour, the local authority anticipated that Mrs S would try to prevent her husband’s move to K hospital or would seek to remove him or interfere with his care once there. The local authority wished to prevent this and therefore made an application to the High Court, without notice to Mrs S, for injunctions prohibiting her interference. Initially the court made interim declarations that S lacked capacity to make decisions relating to where he should live and that it was in his best interests to reside at K hospital. Further, that it was unlawful for him to be accommodated other than at K hospital or at an agreed EMI home and that it was lawful for the contact between Mr and Mrs S to be regulated by K hospital.  Mrs S was permitted to have daily supervised contact with her husband so long as she was accompanied by a member of staff of the local authority. Further interim declarations followed relating to trial periods of home care, once a care package had been agreed by all parties.  A trial period at home was intended to inform the parties and the court as to whether a placement at home was a practicable solution.

Mrs S appealed against the interim injunctions.  She claimed that the local authority should not have commenced the proceedings in the way it did, seeking injunctive relief without prior consultation.  She claimed that her human rights were infringed by the manner in which the proceedings were commenced. She also claimed that the orders sought were too wide and that the evidence in support was insufficient. She further argued that the procedural safeguards which should have been in place to protect Mr and Mrs S were not properly observed.

The court firstly considered the necessity to make without notice applications generally in relation to vulnerable persons. The Court observed that sometimes such applications were inappropriate or not properly supported by the appropriate evidence.  This meant that occasionally insufficient regard was paid to the interest of both the persons in respect of whom and against the orders are made.  Such applications should be fair, balanced and particularised.  A clear explanation should be presented as to why the application was made without notice and what steps the applicant proposed to take concerning service, particularly where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders.
The local authority’s case was that the without notice application was justified because Mrs S might attempt to pre-empt a decision of the court by seeking to remove Mr S from the nursing home if she became aware of its view that he should be placed at the K hospital.  The evidence to support and justify its application had three strands;

(i) the difficulties in caring for Mr S
(ii) the difficulties in providing that care at home or in a nursing home (including the removal of Mr S from nursing homes and exchanges between Mrs S and carers)
(iii) allegations of physical and emotional abuse of Mr S by Mrs S.

The court held that making the application without notice was reasonable and justified.  To have given Mrs S notice of the application in this case would have been inappropriate.  Given Mrs S did not have a representative or professional advisor, if she had been informed of the intention issue proceedings it could have caused her considerable distress.  The Court agreed with the local authority that she might have tried to pre-empt a decision of the court by seeking to remove Mr S from the nursing home if she had been told of the local authority’s intentions. It was unlikely that Mrs S would have agreed to any suggestion that Mr S be moved to a hospital and it was likely that she would have taken immediate steps to try to get him discharged from the nursing home in to her care.  A suggestion that guardianship under the Mental Health Act 1983 might have addressed the issues was unrealistic and would not have addressed the immediate issue of restraining interference with the proposed move to the hospital.

The court accepted that there were shortcomings in the local authority’s evidence, although these fell short of establishing a case in which the without notice relief could be properly set aside.  The local authority had failed to give a balanced account of some of the justifiable complaints and criticisms made by Mrs S about her husband’s care although it could not be said that it gave a materially misleading picture.  The local authority should have made its allegations of abuse towards Mrs S with a much greater degree of particularity and should have explained the impact and relevance of such allegations.    These allegations were at odds with its decision to allow Mr S to remain at home with his wife. Particularisation and the inclusion of a balanced account were necessary to enable Mrs S and the court to know the case made against her.  The local authority was in breach of its duties of full disclosure and fairness although the court held that interim relief would have been justified even without any allegations of abuse being made.

The court held that the local authority’s position in relation to contact was not disproportionate or unwarranted on the evidence.  Although its control was a considerable intervention and interference in the private lives of Mr and Mrs S, it fell a long way short of a termination of contact and a refusal of visits.  The restrictions put in place promoted the best interests of Mr S and were reasonable measures to avoid the risk of harm to him.  However, given the nature and extent of the intervention and interference in their lives, the court should not simply have left matters to the local authority, but rather, it should have given Mrs S permission to apply to discharge or vary the order immediately or, if practicable, on two working hours notice to the local authority. However, this lack of procedural safeguards did not lead to a conclusion that the substantive orders should not have been made.

The court held that the orders amounted to a significant and substantial interference with the family life of Mr and Mrs S and their rights under Article 8 ECHR were engaged. However, the initial interference on a without notice basis by the local authority was justified, pursuant to Article 8(2). The relief sought was not a complete prevention of contact between Mr S and Mrs S but, rather, was regulated and supervised contact to avoid the risk of harm to Mr S and distress to both of the.  No damages were awarded in favour of Mrs S against the local authority in connection with the interim injunction

Judgement for the local authority.

Comment

This case serves as a reminder of various considerations that have to be taken into account when making applications without notice in such circumstances. Not least that without notice applications should only be in exceptional cases. There is therefore a need to recognise the general starting point that persons against whom orders are sought have to be given the opportunity to be heard and that an exception from that approach has to be fully demonstrated and justified.

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