Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133

Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area).



Neutral Citation Number: [2013] EWCA Civ 1557




                                                         Royal Courts of Justice


                                                                 London WC2A 2LL

                                                      Wednesday, 6 November 2013

                                  B e f o r e:

                               LADY JUSTICE BLACK


                          IN THE MATTER OF L (A CHILD)

                               DAR Transcript of

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The Appellant appeared in person, assisted by a Mckenzie Friend

The Respondent did not appear and was not represented.

                                J U D G M E N T

                           (As Approved by the Court)

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1.     LADY JUSTICE BLACK: This is an application for permission to appeal made by the mother of a young man, T, who is 18 years old now. The mother wishes to appeal against orders made by Her Honour Judge Hughes, sitting in the Court of Protection. The exact date of the judge's order is not entirely clear from the papers; it was either 28 or 29 August, but nothing turns on that.

2.     The order has a long preamble which deals with various matters. The order is then a declaration that T lacks capacity to make his own decisions on, to summarise, welfare matters and that it was in his best interests to continue to reside at a particular placement to attend a particular school and to have contact with his family by agreement between the local authority and the mother. That he is having contact I can see, because I have seen a photograph that the mother has produced today showing T having a happy contact with his family, I think last weekend. The order set out the arrangements for contact and other directions were given by the judge. The directions included provision for the instruction of an independent social worker to comment on alternative residential placements for T and educational provision for him. A further hearing was arranged for March 2014 and a final hearing in June 2014.

3.     The mother wants to appeal against the judge's declaration that T does not have capacity and also against her order that it is in his best interests to remain in his current placement so that he may attend the school that he has been attending now for some time. The mother wishes to advance her appeal on various grounds: firstly, she argues that the judge misinterpreted the provisions of the Mental Capacity Act and expected too much from T before he could be thought to have capacity to make his own decisions in relation to the issues that arose in the proceedings; secondly, the mother wishes to argue that the judge accepted Dr Essex's evidence, rather than that of Dr Thompson, about the question of capacity when, for a number of reasons, Dr Essex's approach was flawed; thirdly, she argues that the judge placed too much emphasis on T attending school when he is now past the compulsory school attendance age; and, fourthly, she argues that she did not have a fair hearing.

4.     I have already said that T is 18. He had the misfortune to have had spastic cerebral palsy from birth and that has resulted in significant physical and developmental disabilities. He cannot speak but ways have been found to ascertain what his responses are in various situations. The mother considers that he has capacity under the Mental Capacity Act to make decisions for himself and her view was supported by Dr Thompson, who is a clinical psychologist. Dr Essex is a consultant neurodevelopmental paediatrician. He disagreed with the assessment of the mother and Dr Thompson and considered that T did not have capacity to make his own decisions.

5.     The judge, as we can see from the judgment, directed herself in accordance with sections 1, 2 and 3 of the Mental Capacity Act. In particular, she set out what is expected before someone can be said to be unable to make a decision for themselves. I will not go through the whole of section 3 but I will mention, for the purposes of this judgment, section 3(1). That reads:

"For the purposes of section 2, a person is unable to make a decision for himself if he is unable:

(a) To understand the information relevant to the decision

(b) To retain that information

(c) To use or weigh that information as part of the process of making the decision, or

(d) To communicate his decision (whether by talking, using sign language or any other means)."

I will also mention section 3(4) because that provides that the information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or the other or failing to make a decision. The judge carefully cautioned herself against requiring too great a level of understanding of T.

6.     Neither Dr Thompson nor Dr Essex actually asked T where he wanted to live. Dr Thompson thought that T was bound to say that he wanted to live with his mother. Dr Essex thought that T functioned at the level of a young child and that he simply did not have the capacity to decide such a matter as that, though he could decide. In contrast, Dr Essex accepted, simple everyday life issues, such as which T‑shirt he wanted to wear of two. It seems that the Official Solicitor's representative had asked T what he wanted about where he should live. It appears that he may have been thought to signify that he did not want to live with his mother but the mother says to me today that the Official Solicitor's representative had not properly understood T's communication system and I do not think she would want me to rely in any way on that piece of evidence.

7.     Dr Thompson's expertise was in assessing people who have suffered a trauma, rather than those who have been mentally impaired from birth. Dr Essex had, in contrast, done very considerable work with people who had been mentally impaired from birth. Dr Essex was clear in his view with regard to T's lack of capacity. The judge recorded in her judgment that Dr Thompson did not know whether T could make complex decisions; that I think must have been the result of the oral evidence that was given. In relation to where T would live, that of course incorporated a number of different possibilities and they were in combinations. So there was, it seems to me, a degree of complexity about the decision that T had to make in that regard.

8.     The judge much preferred the evidence of Dr Essex over that of Dr Thompson. She did so by virtue of the greater relevant experience that the doctor had and she therefore, accordingly, accepted his evidence and found that T lacked capacity. The mother argues that the judge was wrong in accepting Dr Essex's evidence and should have preferred Dr Thompson's. She has explained to me today that she considers that Dr Essex had predetermined the matter. He had already been involved in 2011 and he had a predetermined view about things. He conducted his assessment in T's room and she was not part of the assessment. She argues that the judge gave too much emphasis to the experience that each of the doctors had in preferring Dr Essex. She argues that Dr Thompson was the only one who imposed any testing on T and that Dr Essex had not even asked the central question of T and that that undermined his evidence. She argues that Dr Thompson had collected information in the course of his interview about what T could retain by way of information and what decisions he could make. One example of that is that Dr Thompson had hidden some items and T remembered where they were over a period of time; another the mother gave me today was that T knew when there came a knock on the door that it was going to be her coming to see him because Dr Thompson had said about ten minutes earlier in the interview that that was going to happen and that shows that T had retained that information. She argues that the judge was expecting too much of T by requiring him to deal with complexities where she feels that is not necessary for someone to have capacity. She argues that the judge failed to give weight to the evidence of those who work with T daily who would say that he can make choices. She argues that Dr Essex had not taken all practical steps that could be taken to help T to understand the information that was relevant to the decision to encourage him to participate in making that decision because he stopped short of having asked the relevant question.

9.     The assessment of witnesses, including expert witnesses is very much a matter for the judge who conducts the hearing. These particular experts had very different expertise. The judge concluded that Dr Essex's expertise was more relevant. It seems that neither of the experts had asked T the central question. The mother complains that Dr Essex had not, but neither had Dr Thompson. He had tested T's recall of matters in the ways that I have given examples of but he did not have evidence of T having processed questions such as those involved in the decision as to where he would live and what he would do about school any more than Dr Essex did. Dr Essex explained why he had concluded what he concluded about T's level of functioning in his addendum report.

10.     It seems to me that the judge was entitled, given the evidence of each of the experts, to prefer the evidence of Dr Essex and that there is no prospect of a successful appeal against that conclusion. It follows that T must be treated as not having capacity to make his own decisions.

11.     That takes one to the next stage of the mother's proposed appeal, which is in relation to the decision the judge made about T's best interests. She was considering three options: to stay in the current placement for at least a year and finish at the existing school; secondly, to live with the mother and attend a school near her; or, thirdly, to move to a residential home near the mother and have some education in her area.

12.     The independent social worker who was called at the hearing and the local authority social worker favoured the first option, that is the status quo. The mother obviously sought the second, which was for T to come and live with her. The disadvantages that the judge saw over that were that there was a question mark over whether the mother would enable T to have education and also that he would lose the benefit of a period of that education whilst he acclimatised to his new school. The judge found that the mother does not really support schooling and she had no confidence that the mother would ensure that T had his last year at school. The judge also did not see the point of changing T's school when most of the evidence was that he was happy at the one that he was attending and the judge found that it provided him with good and suitable education. To attend the current school he had to live nearby it and that meant, of the options available, that he had to stay at the current placement, even though the judge recognised that there were shortcomings to that placement. She made provision for T to stay with the mother from time to time by way of contact and for there to be a review in 2014, which would be when T would be ceasing his education.

13.     The mother argues that the judge was wrong in the decision that she made about best interests. She argues that it was wrong to force T to attend school, now that he is over compulsory school age. That argument, I am afraid, rather underlines the correctness of the judge's view that the mother does not really support schooling for T. She argues that he was being deprived of his liberty by being required to attend school and that the judge should have considered the school in that light and concluded that it was not in his best interests to attend it or necessary for him to do so to keep him from harm. It is clear from the judgment that the judge was in fact of the view that the education that T was receiving was good for him and was in his best interests and, as I have said, that he was happy at school. One can see from the judgment that the judge had evidence underpinning her view about that. The independent social worker had reported that T's time at school was extremely important, educationally and socially, and that that was so to the point where the independent social worker considered that the benefits of the schooling to T outweighed the deficits of the placement in the current home.

14.     The judge is criticised by the mother in the written documents, although she has not pursued this matter today, for not finding that living in the current placement is causing a deterioration in T's visible condition. The judge explained, however, why she did not make that finding. It was to do with a reduction in T's physical mobility. There was evidence before the judge that there could be an increase in contracture over time, particularly during periods of growth, and that it was not therefore necessarily the result of a failure to maintain regular stretching. That is why the judge did not make the finding that the mother sought in that regard and I do not consider that she can be criticised with regard to her failure so to find.

15.     Accordingly, I have considered all of the matters that the mother has put before me, both in writing and today, and I am afraid that I cannot identify any reasonable prospect of success in those submissions. Therefore, I must

refuse permission to appeal.

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