|Declaratory relief – human rights – best interests – inherent jurisdiction
S was a young adult with severe learning disabilities, limited communication ability and some physical disabilities. He had always been cared for at home by his father, DS. It was common ground that S was unable to manage his property and affairs and that he lacked the capacity to decide for himself where and with whom he should live.
Although DS’s relationship with the local authority had been ‘tense and difficult’ for many years, it was accepted that, in the main, DS had provided a “good enough level of physical and emotional care for the majority of the time”. However, the local authority had increasingly become concerned about DS’ ability to continue caring for his son. A Child Protection Conference (CPC), prompted by concerns that S was not being bathed properly, was being kept off school by DS; and by DS allegedly threatening to ‘dump’ S on social services, concluded that S’s name should be referred to the Child Protection Register in the category of ‘Neglect’. S was de-registered three months later, but just a month after that police were called to investigate a serious assault. DS had lost his temper with S, slapped him on the face, and pushed him. S had fallen and bumped his head and hip. Other episodes of physical ill-treatment to which DS had admitted, included occasionally throwing a slipper at S, on one occasion pressing S’s head towards his food to encourage him to eat; and on another occasion “tapping” S on the knee with a walking stick. A second CPC recommended that S should be put on the At Risk Register, that a care plan requiring DS’s full co-operation should be drawn up for S and that, should DS fail to co-operate, then a contingency plan should be put in place to have S removed. With DS’ agreement, S was placed in respite care.
Shortly after S reached the age of 18, the LA sought a declaration that it was not in S’s best interests to continue to reside with DS as there was a risk of further abuse; and because DS was unable to work co-operatively with the local authority to provide an appropriate environment for S that would reduce his social isolation and allow him to develop to his full capacity. The LA was supported in its application by the Official Solicitor
In reaching his decision, the judge noted the following points:
As regards the human rights in play, the judge observed that the father could not pray in aid as a trump card either his article 8 right to respect for family life or his article 8 right to respect for that part of his private life which entitled him in principle to establish and develop relationships with other human beings. His article 8 rights had to be weighed and assessed in the balance against his son’s article 8 rights. In many cases there would be no conflict of any sort. However, if the rights of a father, such as DS, and his son did conflict, then domestic law required the conflict to be resolved by reference to the son’s best interests. In domestic law the governing consideration was the son’s welfare. Equally, ECtHR jurisprudence had long recognised that, in the final analysis, parental rights had to give way to the child’s – that the case may be one of sufficiently pressing necessity as to justify, in the interests of the child’s welfare, the supercession and assumption by the State of parental rights and responsibilities. The answer could be no different where the child, although now an adult, remained unemancipated because mentally incapacitated.
Having assessed all the evidence, including evidence from DS, a social work expert and S’s class teacher, the judge concluded that there was a significant risk to S of increasing emotional damage and social isolation if he remained at home. The judge was satisfied that there was a mass of evidence to support the LA’s application and a declaration was granted accordingly.