Posted by Gabe 
· 23/03/2017 
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Re S (an adult) [2002] EWHC 2278 (Fam)

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:

 

  • the court’s role in proceedings such as this, where no element of public law was involved, was to act as a surrogate decision-maker on the incapacitated adult’s behalf, deciding on his behalf where he should live;

 

  • the governing consideration was the incompetent adult’s welfare and the court’s jurisdiction was exercised solely by reference to the incompetent adult’s best interests. This involved a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, emotional and welfare considerations;

 

  • the doctrine of necessity enabled parents of mentally incapacitated children who had reached the age of majority not merely to assume the responsibility for the day to day care of their child, with all the routine decision-making which that entailed, but also to decide, in conjunction with suitable professional advisers where appropriate, more important matters such as where their child should live, who he should see, what services offered by public authorities he should make use of, what medication he should take and what nursing, dental and medical treatment he should receive;

 

  • there was in law no presumption that mentally incapacitated adults were better off with their families. However, the starting point should be the normal assumption that mentally incapacitated adults would be better off if they lived with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who had been looked after within their family would be better off if they continued to be looked after within the family rather than by the State;

 

  • there was no threshold requirement to establish either the risk of significant harm and/or parenting which falls short of the reasonable before the State could intervene;

 

  • if the State – in the guise of a local authority – was to say that it was the more appropriate person to look after a mentally incapacitated adult than his own family, then it assumed the practical and evidential burden of establishing that this was indeed so.

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.
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