S v London Borough of Newham (31 July 2003) (unreported)

Incapacity – declaratory relief – best interests


S was aged 33 at the date of the hearing. She had a moderate to severe learning disability, and also suffered from atypical autism and epilepsy. Since her birth and until 1995 when her mother died, S had been cared for in the family home by both her parents. From 1995, she was cared for by her father with the help of personal care assistants.


In late 2002, an event allegedly occurred which caused Newham to apply to the High Court for a declaration that it would be lawful for them to remove S from the family home, place her in specialist residential accommodation for people with learning disabilities and regulate contact between her and her father. A district nurse who went to S’s home to administer her with a flu injection, said that when S resisted the injection her father punched her several times in the face. In addition, Newham alleged that S’s father had a drink problem which, at times, meant he was not able to properly care for S.


The High Court granted an interim declaration rendering it lawful for Newham to place S in residential accommodation and limit contact between S and her father to supervised contact, and further prohibiting the father from removing S from that accommodation.


The case then proceeded to a full hearing of the issues involved. Newham asked the High Court to declare that it would be lawful for it to continue to care for S and limit contact between her and her father. S’s father resisted the application claiming that he had always provided, and could continue to provide, care to meet S’s best interests. He argued that the local authority could only take his daughter into its care if there had been a finding that he had mistreated her in some way.


Granting the declaration, the High Court found as follows:


It was common ground that that S was incapable of deciding where she should live and how she could best be cared for. S could not be subjected to guardianship under the Mental Health Act 1983 because whilst S sometimes displayed an element of aggression, the only example of “seriously irresponsible conduct” identified on S’s part was her total lack of road sense and a tendency to rush into the road without looking. Accordingly, she could not be said to display “abnormally aggressive or seriously irresponsible conduct” within the meaning of section 1 MHA 1983. The only option available to Newham therefore was to seek a declaration from the High Court that it would be lawful for them to take over responsibility for S’s care.


So long as the adult in question was incapable of making decisions about his/her future care and a ‘serious justiciable issue’ about the adult’s best interests required resolution, then the High Court’s inherent jurisdiction was available to it. Unlike care proceedings under the Children Act 1989, where a risk of significant harm to the child had to be shown, the exercise of the jurisdiction over mentally incapable adults was not dependent upon any threshold criteria apart from the fact of incapacity and a serious justiciable issue. In the present case, it was not necessary for the Court to determine whether S’s father had assaulted her or whether he had a drink problem because, despite those matters, the court was satisfied that it would be in S’s best interests for Newham to take over responsibility for her care.

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