View source for Re SA; FA v Mr A (2010) EWCA Civ 1128

Court of Protection case. [Summary to follow.]

==Transcript==
The transcript is reproduced below (Crown Copyright):

<pre>Neutral Citation Number: [2010] EWCA Civ 1128
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE RODERIC WOOD
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Thursday 19th August 2010
Before:
LORD JUSTICE MUNBY
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Between:
 	 	 	 	 
FA
Appellant

and

MR A	
First
Respondent	 

and	 	 
 	 	
SA
(by her Litigation Friend, the Official Solicitor)
Second
Respondent

and 

THE LBC	
Third Respondent	 
 	 	 	 	 
- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
The Appellant appeared in person
Mr Alex Ruck Keene (instructed by Irwin Mitchell Solicitors) appeared on behalf of the Second Respondent
Ms Jenni Richards appeared on behalf of the Third Respondent.

- - - - - - - - - - - - - - - - - - - - -
</pre>
Judgment

(As Approved )

Crown Copyright ©

Lord Justice Munby:


1.     This is an application for permission to appeal from a decision given by
Roderic Wood J, sitting as a judge of the Court of Protection on 20 May 2010.
The proceedings relate to a young woman, SA, who was born in December 1989.  It
is said, although this is vigorously disputed both by SA and by her mother FA,
that SA is not merely vulnerable but that she lacks capacity, in particular
capacity to litigate the current proceedings, capacity to decide whether or not
to participate in the process of a statutory assessment by the local authority
in accordance with Section 47 of the 1990 Act and, in the event that the outcome
of such an assessment is a determination by the local authority that she should
be offered services, capacity to decide whether or not to accept those services.



2.     The history of the litigation is lengthy and, in its more recent years,
most unfortunate.  There was litigation while SA was still a child, there being
wardship proceedings in the Family Division.  Following her attaining her
majority, the current proceedings were commenced in the Family Division by her
mother on 4 February 2008.  I must return in due course to elaborate in slightly
more detail the subsequent history of the proceedings, but for the moment it
suffices to record that the reason why the mother commenced proceedings was her
concern -- a concern which she now vigorously disowns -- of what at that time
she seems to have been asserting was the risk to SA of her removal abroad by
SA's father and SA's grandmother (since deceased), perhaps for the purpose of an
arranged marriage.


3.     In consequence, when the proceedings initially came before Macur J in
2008, the mother's concern was to obtain relief against the father and the
grandmother.  Indeed, on 21 February 2008, Macur J made an order (subsequently
extended by her order of 3 June 2008 and still in force, albeit no longer
effective as against the now deceased grandmother) prohibiting the father and
the grandmother from making any arrangements for SA to be married, or removing
or attempting to remove SA from the jurisdiction and other orders of a type
which are familiar in such circumstances.


4.     The mother's stance has more recently been that the proceedings which she
launched in 2008 were based upon a misunderstanding, at least of the
grandmother's own motives, and that the proceedings are serving no useful
purpose and should be discontinued forthwith.


5.     The basis of the invocation of the jurisdiction of the Family Division in
2008 was the mother's assertion that SA was both "a vulnerable adult" (that
expression being used as a term of art, as referring to an adult whose
vulnerability is such as to enable the Family Division to exercise its inherent
jurisdiction) as also an assertion that SA lacked capacity.  Appropriately, on 3

 June 2008 Macur J made an order in familiar terms directing the obtaining of
expert evidence both in relation to SA's capacity or lack of capacity, as also
in relation to her best interests.  Those reports -- the first as to capacity by
Dr Helen Pearce; the second as to best interests by an independent social
worker, Ms Susan Walshe -- were prepared respectively on 17 October 2008 and 20
January 2009.  Astonishingly, when the matter came back before Roderic Wood J on
20 May 2010 there had, despite the evident intentions which lay behind Macur J's
order and despite the fact that the relevant report from Dr Pearce had been
obtained 18 months previously, been no determination by the court of the
fundamental question of whether SA did or did not have capacity.  That question
was by then crucial, because on 17 December 2009 Eleanor King J had directed
that the proceedings were to be transferred from the High Court to the Court of
Protection, had joined the local authority as a party and had directed that it
was to make an application to the Court of Protection.  The jurisdiction of the
Court of Protection being entirely statutory, it has, in contrast to the Family
Division, no jurisdiction in relation to an adult who, although vulnerable, has
capacity.


6.     So when the matter came before Roderic Wood J, more than two years after
the proceedings had been commenced and more than 18 months after the relevant
report as to capacity had been obtained, there had still been no finding of any
sort in relation to that crucial issue.  The questions before Roderic Wood J he
correctly identified as being, first, whether there was material before him on
the basis of which he could, pursuant to Section 48 of the Mental Capacity Act
2005, properly make an interim declaration as to lack of capacity; and secondly,
what directions he should give in relation to the final determination of that
question -- correctly taking the view that he could not finally determine it --
together with the question of what other directions might appropriately be made
to enable this litigation to proceed appropriately.


7.     The only expert evidence before Roderic Wood J in relation to the
question of capacity or incapacity was the report of Dr Pearce to which I have
referred. That report, albeit untested by cross-examination, on its face plainly
entitled the judge to find on an interim basis that SA lacked capacity in the
two respects in relation to which he granted the declaration, namely (1)
capacity to litigate, and (2) capacity to make decisions to decline assessment
and/or support and welfare services.  His judgment, of which I have read the
transcript, gave his reasons for being satisfied that it was permissible and
appropriate for him to make those declarations, and goes on to explain the
further declarations and the directions he made.


8.     In essence, he determined that it was in SA's best interests that there
should be not merely a further assessment as to her capacity to accept or
decline community services but also an assessment as to her eligibility for such
services.  He gave consequential directions with a view to facilitating each of
those two assessments, including a mandatory order requiring the mother to take
certain identified steps to facilitate the undertaking of the assessments.  His
order plainly contemplated that the further assessment of SA's capacity would be
undertaken by Dr Pearce.  He directed that the matter was to be listed for
further directions in the Court of Protection on the first available date after
14 August 2010.


9.     For some reason that direction was ignored and the matter in the event
came before Parker J, sitting in the Court of Protection, on 22 July 2010 -- as
it happens, the very same day Wilson LJ gave directions on paper which led to
the listing before me today of the application for permission to appeal from
Roderic Wood J's order made jointly by SA and her mother.


10.     The Official Solicitor has been acting as SA's litigation friend since
2008, but Wilson LJ directed that SA was to attend in person before me today.
Without objection from either Mr Ruck Keene, instructed by the Official
Solicitor, as SA's litigation friend, or Ms Richards, instructed on behalf of
the local authority, I have heard submissions not merely on behalf of SA from Mr

 Ruck Keene but I have also heard at length from both SA and her mother.


11.     Their stance before me was identical in all respects and forcefully
expressed: the proceedings should come to an immediate end; there is no basis
for the assertion that SA lacks capacity; Dr Pearce's report is shot through
with factual error and professional misjudgement; Roderic Wood J should not have
made the order he did; and, if any order is made or remains in force providing
for any form of assessment, whether by Dr Pearce or by some different expert,
whether in relation to questions of capacity or in relation to any other matter,
neither SA nor her mother will comply.  As the transcript of the proceedings
which I propose to direct is to be prepared will show, they repeatedly told me
in the most emphatic terms that they disputed the need for any assessment and
repeatedly asserted their dogmatic refusal of anything to do with the process.



12.     As it has turned out, most helpfully (although not, so far as I am
aware, pursuant to any direction or indication of the court), both the local
authority and the Official Solicitor have attended today, and indeed, as I have
indicated, been represented by counsel.  That has enabled me to see and
understand the wider picture which might not have been so apparent had only SA
and her mother appeared before me.


13.     One of the features which struck me when I read the papers was that,
with the sole exception of the orders against the father and the grandmother to
which I have referred, and the very recent interim declarations made by Roderic
Wood J, no substantive order of any sort seems to be made in this litigation to
date.  And I confess it was not entirely clear to me, either from the copy of
the bundle (apparently before Roderic Wood J) with which I have been supplied or
from the somewhat exiguous bundle prepared for me by SA and her mother, what
substantive relief was being sought in these proceedings; what indeed the
purpose of these proceedings was as perceived by either the local authority or
the Official Solicitor.  I put it that way because, to repeat, the mother, the
claimant in the original proceedings, seeks no relief and, on the contrary,
wishes the proceedings to come to an end forthwith.


14.     As I understand it, as currently advised and in the light of matters as
they currently stand, the Official Solicitor is not minded to seek any
substantive relief.  The substantive relief, which, as currently advised and in
the light of current circumstances, the local authority seeks is twofold. First,
given the family's unwillingness to cooperate in the process of assessment for
the purposes of Section 47 of the 1990 Act, it seeks appropriate supportive
relief from this court to enable that statutory process of assessment to take
place. Secondly, if the result of the statutory assessment process is such as to
lead the local authority to think that services ought to be provided in
circumstances where the offer of such services is rejected by the family, it
envisages that it may be necessary that it obtain relief from the court with a
view to ensuring that those services which, in its view, are appropriately to be
provided to and accepted by SA are in fact provided to her, notwithstanding any
obstruction from the family.


15.     Lurking in the background there are wider, although at present
unformulated, concerns, which may perhaps crystallise as matters develop and in
particular in the light of what may or may not emerge from the process of
statutory assessment; but, at least for the time being, the ambit of the
proceedings, so far as concerns substantive relief, appears to be confined, as
it were, to inviting the Court of Protection to give auxiliary assistance to the
local authority, to enable it more effectively to perform its statutory
functions arising under or in consequence of Section 47 of the 1990 Act.  And,
so far as I am aware, that understanding of the general shape of the litigation
would have been shared by Roderic Wood J on the occasion which gives rise to the
present appeal.


16.     The grounds of the proposed appeal are twofold.  I go to the substance,
although not, of course, ignoring the further details set out in the papers.
First, it is said that the mother and SA were not given a fair opportunity to
make their case before Roderic Wood J.  I have the benefit of a transcript of
the proceedings before Roderic Wood J which demonstrates, in my judgment, that
this allegation is completely groundless.  The transcript shows that submissions
were made on behalf of the family at some length; the transcript contains
nothing to indicate that the family was denied the opportunity at the
appropriate stage of the hearing of making such submissions as they wish to.  I
say that because it is a feature of that hearing, as a feature of the hearing
before me today, that there were a number of occasions when the mother
intervened or interrupted while others were on their feet.  But it is manifestly
clear from reading the transcript of the proceedings before Roderic Wood J that
the family was given every proper opportunity, an opportunity of which they
availed themselves, of making such submissions as they thought appropriate.


17.     The second and more fundamental attack is on the correctness and
appropriateness of Roderic Wood J's decision to grant the interim declaration
pursuant to Section 48 of the 2005 Act and to give the directions for further
assessments.  The basis of the family's complaint, articulated before me both by
SA and by her mother, in terms which, it is to be noted, were strikingly similar
and repeated on numerous occasions, is that Dr Pearce's report is wrong.  As I
have said, it is said to be factually wrong and erroneous in its professional
judgment.  There are various specific points of detail of which complaint is
made about her report.  More fundamentally, the case made by SA and her mother
is that SA has eight GCSEs, a fact which is apparently accepted by the Official
Solicitor and the local authority; moreover it is said that those GCSEs include
GCSEs in such subjects as mathematics, English language and Spanish.
Furthermore, it is said, and not, as I understand it, challenged, that SA is
currently in employment and has been in that employment for some three months,
that being employment, as they described it to me, which involves her in a
responsible office job, including logging correspondence and answering the
telephone.  SA, with prompting from her mother, which she hardly required, was
very keen to address me and did so at some length in an entirely fluent and
highly articulate fashion, not merely making the various points which she wished
to make in support of her application for permission to appeal, but by her very
performance seeking to make the point that she was not somebody suffering from
the range of difficulties and disabilities identified by Dr Pearce.


18.     In essence, the family says that Dr Pearce's analysis of SA's
difficulties and her limitation simply cannot be squared with objective facts
and realities.


19.     There is concealed within that contention, however understandable it may
be in human terms, a fundamental misunderstanding of the law because (and I need
not cite the authority in support of propositions which are well established)
capacity is always issue-specific; there is, as it were, no certificate of
incapacity which renders you, if incapable, incapable in all respects.  Putting
the point somewhat differently, it has long been accepted, both in the inherent
jurisdiction of the Family Division and in the modern Court of Protection (as in
the old Court of Protection), that there is no logical or legal inconsistency
between somebody lacking the capacity to manage their property and affairs (I
use the traditional terminology) and on the other hand being able to hold down a
highly responsible job, just as there is no logical or legal inconsistency
between somebody having a very high degree of intellectual ability and yet
lacking capacity.


20.     This court can only interfere on a number of limited grounds:  Did the
judge misdirect himself in law?  Was his finding against the weight of the
evidence?  Was his evaluation and determination plainly wrong? "Was the
applicant denied a fair hearing?  Those are, in essence, the grounds upon which
this court can interfere.  So far as concerns the grant of permission to appeal,
permission will be granted only if there is an arguable case -- the applicant
having a reasonable prospect of establishing one or other of those criteria --
or if for some other reason the appeal is one which should be considered by the
Court of Appeal.


21.     So far as concerns unfairness in the process, I have dealt with that
already; there is not even the beginning of any case of unfairness.  So far as
concerns misdirection in law or error of approach, it is quite plain in my
judgment, having read the judgment of Roderic Wood J, that there is likewise not
the beginnings of any remotely arguable complaint in relation to any of those
matters.  Roderic Wood J was careful to explain that he was not making a final
order, that he was exercising the interim jurisdiction under Section 48.  Was
the material before him such as to entitle him in accordance with Section 48 to
make the declarations in relation to lack of capacity that he did?  The answer
is, quite plainly, yes.  It may turn out that Dr Pearce's view will be shown to
be ill-founded, but the judge, properly approaching the matter on an interim
basis, was plainly entitled to have regard to and to base his finding upon a
long, carefully presented, detailed and, on its face, compelling report.
Moreover, none of the matters sought to be relied upon, whether before him or
before me, by either SA or her mother, even if taken together, would, in my
judgment, suffice, even arguably, to disentitle the judge from taking the view
he did.  Dr Pearce's report was the only expert evidence.  There is, as I have
already sought to explain, no necessarily logical or legal inconsistency between
Dr Pearce's professional assessment of SA's lack of capacity and SA's ability to
function intellectually and in the employment market in the way relied upon by
both her and her mother.


22.     Moreover, it is to be borne in mind that Dr Pearce was not the only
witness, albeit she was the only expert, propounding the view that there was a
serious question mark over SA's capacity.  SA's own mother, as I have mentioned,
when she launched these proceedings some two years ago was herself relying upon,
and indeed asserting, SA's vulnerability and identifying questions in relation
to her capacity.


23.     There was ample material before the judge entitling him to make that
declaration and, that being so, there is no arguable basis for any complaint
about his decision to make the declaration, nor any arguable basis for complaint
about the necessary corollary, given that the declaration was an interim
declaration, namely the giving of directions, including declarations as to the
need for further examination and exploration of the question of SA's capacity.
The fact is that Dr Pearce's report is elderly; the fact is that circumstances
have changed.  There was plainly a most pressing need for an early, final
determination of the question of whether SA did or did not have capacity; and
that final determination, in contrast to the interim determination being made by
the judge, was a determination which necessitated the obtaining of further
expert and other evidence.


24.     Mother and SA say the litigation should come to an end.  That is based
upon their assertion that Dr Pearce has got it wrong and their assertion that
there is simply no basis for any suggestion that SA lacks capacity.  It may be
that the outcome of a final hearing, where a judge is able to explore these
issues in detail and crucially with the benefit of oral evidence and
cross-examination, will be a vindication of the stance being adopted by SA and
her mother.  But at present their stance is based in large part upon mere
dogmatic assertion, and dogmatic assertion, however forcibly expressed, however
often repeated and however passionately held the beliefs which underpin it, is
no proper answer to the evidence-based approach on which Roderic Wood J had
properly to proceed, and in my judgment did properly proceed.


25.     There is, however, one aspect of Roderic Wood J's order that causes me
very considerable concern.  It will be recalled that the further assessments
which he directed were not limited to further assessments in relation to the
question of SA's capacity, but included an assessment as to her "eligibility for
services", that is, eligibility for services under Section 47 of the 1990 Act.
That is part of the substantive issue which, as I have described, the local
authority seeks to ventilate in these proceedings.  But, to repeat, the Court of
Protection has no jurisdiction, apart from its interim jurisdiction under
Section 48, unless and until it is established that P (I use the convenient
statutory shorthand) lacks capacity.  If P lacks capacity, then the Court of
Protection has jurisdiction, including the full amplitude of the personal
welfare jurisdiction which is here being invoked.  If P does not lack capacity
then the Court of Protection has no jurisdiction at all.  In other words, the
determination by the Court of Protection as to whether or not SA lacks capacity
is, as a matter of law, a necessary prerequisite to its embarking upon the grant
of substantive relief, except on an interim basis in accordance with Section 48.



26.     What has happened here is that Roderic Wood J, at a time when, as he
accepts and asserts, there has been no final decision in relation to the
fundamental question of capacity, has nonetheless declared that it is
appropriate and in SA's best interests for there to be an assessment of her
statutory eligibility for 1990 Act services and at the same time made orders
directed to facilitating that process.  I do not for a moment dispute his
jurisdiction to do so in accordance with Section 48; but I do have to question
the appropriateness of doing so in circumstances where not merely has incapacity
not been established definitively but where the issue of capacity is disputed
with the passion and vehemence which is characteristic of both SA and her
mother.


27.     I can understand the judge's concern -- a concern which I share -- that
so little of any substantive advantage has been obtained, albeit these
proceedings have been on foot for well over two years, and his understandable
concern to move matters on.  It does, however, seem to me to be at least
arguable that he was wrong, indeed plainly wrong in the unusual and perhaps
extreme circumstances of this case, to embark coercively upon the next stage of
the proceedings before the fundamental question of capacity had been determined.



28.     Accordingly, whereas in relation to the other parts of his order I
unhesitatingly refuse permission to appeal for the reasons I have given, insofar
as his order, whether by way of declaration or consequential direction, relates
to assessment of SA's eligibility for services, it seems to me that there is an
arguable basis of complaint.  So in relation to that part of his judgment and
order I give permission to appeal.


29.     The question then arises as to what should be done.


30.     I must return to the unhappy history of this litigation.  Much of it I
have already had occasion to rehearse.  It speaks for itself.  I have already
drawn attention to the fact that two and a half years since the litigation began
there has been no final determination in relation to capacity, and the unhappy
and indeed deplorable fact that there has been no final determination of
capacity, notwithstanding that the expert's report had been obtained from Dr
Pearce some 18 months before the matter came before Roderic Wood J.  I am
acutely conscious of the fact that this litigation has been skewed by the fact
that it began at the instigation of the mother, who no longer wishes it to
proceed, and has now in effect been taken over by the local authority.  I am
also acutely conscious of the fact, as some of the evidence I have read shows,
that there have been great difficulties in both the local authority and the
Official Solicitor communicating with and obtaining the engagement, assistance
and cooperation of either SA or her mother.  And I am acutely conscious of the
fact that there is no doubt much which, quite understandably and appropriately,
has not been laid before me.  It would not be right in the circumstances to
point the finger of blame at individuals.  It is nonetheless deplorable, as it
seems to me, that this litigation should have proceeded to progress such a very
small distance and at such a snail-like pace over such a long period.


31.     It is a striking feature that, when Eleanor King J directed on 17
December 2009 that this litigation should be transferred from the Family
Division to the Court of Protection, she -- and, if I may say so, entirely
appropriately -- directed that the proceedings "shall be allocated to a High
Court judge nominated to sit in the Court of Protection".  That was a direction
that the case should be allocated to an identified judge.  The direction has
simply been ignored and, I regret to say, ignored by the court.  The litigation
since SA became an adult (I do not refer to the earlier wardship proceedings)
was first before Macur J; it was then before Roderic Wood J; it was then before
Eleanor King J; it was then before Roderic Wood J again; and, most recently,
before Parker J.  Unsurprisingly, with that complete lack of judicial
continuity, the litigation has been allowed to drift in the most deplorable
fashion.


32.     It is now, or will at the end of this long vacation be, seven years
since the Family Division accepted, in the context of care proceedings relating
to children, that the previous delays in the system required as at least part of
their solution a process of judicial continuity and judicial case management.
Unhappily, and not for want concerns expressed by judges, no similar system of
either judicial continuity or judicial case management yet seems to have been
applied to the significant number of cases in the adult jurisdiction, whether in
the Family Division or in the Court of Protection, which are of the scale and
complexity which, as in the present case, requires the use of a judge of the
High Court.  And the consequence -- and the present case, I regret to say, is a
classic if shocking example of the phenomenon -- is that all the vices which we
were familiar with before 2003 in relation to the child jurisdiction are still
too frequently to be found in the adult jurisdiction.  The problem is systemic;
the problem is fundamentally one for the court to grapple with, although, that
said, there are many cases (and I do not speak with the present case in mind)
where a more active stance adopted by the parties might facilitate the process.



33.     I express these views because it seems to me that this court would be
abdicating its responsibility unless in the present case it did something, even
if only in the immediate short term, to remedy the previous lack of consistent
and effective case management.


34.     I therefore enquired of both the local authority and the Official
Solicitor whether, if I was going to grant permission to appeal, as in the event
I have in relation to that one topic, they were content for me to proceed to
deal with the appeal substantively, my anxiety being to avoid the further delay
and the further expenditure of no doubt scarce resources which would be the
consequence of giving permission to appeal but adjourning the substantive appeal
to come on for hearing on some future occasion.  Very helpfully, and entirely
appropriately if I may so, both the Official Solicitor and the local authority
are content that I should deal substantively with the appeal insofar as I give
permission.  I can do so whether or not SA and her mother consent, and I am
prepared to assume that they would not consent, because what I propose to do in
relation to the one matter in relation to which I have given permission to
appeal is to allow the appeal.


35.     For essentially the same reasons as I have already outlined in
explaining why it seems to me appropriate to give permission to appeal, I am
satisfied that in this one limited but important respect Roderic Wood J was
plainly wrong in the decision he came to.  I appreciate that it is a strong
thing for this court to differ from a very experienced judge who was, in a very
real sense, merely exercising case management functions and giving interim
directions.  But it seems to me that lurking behind what in form may be case
management directions is an important point of principle, namely the question of
whether the court should embark upon the substantive phases of the litigation
before it has arrived at a final determination in relation to the question of
capacity.  I am emboldened to take that course because it seems to me, given the
adamant opposition from both SA and her mother, that there is a more than
usually pressing need for this matter to proceed as quickly as possible to a
determination of, and at this stage a determination only of, the jurisdictional
question of capacity or lack of capacity.  Such slight chance as there may be of
obtaining the cooperation of SA and her mother can only be assisted by limiting
the scope of the process at this stage and not, as it were, embarking upon the
wider question of whether or not SA is eligible for statutory services, a
question which, for reasons I have already explained, SA and her mother might
properly think is a matter with which the court should not be concerning itself
at all unless the court is satisfied as to lack of capacity.


36.     Accordingly, in relation to that part of Roderic Wood J's judgment and
order which relates, whether by way of declaration or order, to assessment of
SA's eligibility for services, I propose to allow the appeal.


37.     It seems to me that, having statutory power in accordance with the Court
of Protection rules to make whatever orders could have been made by the judge
below, there is a pressing need for me now to give such consequential orders,
including case management orders and directions, following upon my judgment as
will move this litigation on as quickly as possible.


38.     It is no criticism whatever of Parker J, who was faced with the
impossibility of trying to case-manage this litigation at a time when the
application to this court was pending, that the order she made on 22 July 2010
was an order providing for the matter to be relisted for further directions on
or after 1 October 2010.  I do not propose to go into detail, but, as an
examination of the previous orders made by the court will demonstrate, there
have been all sorts of listing difficulties in this case and there have been too
many occasions for comfort when listings directed by judges have either had to
be vacated in circumstances frustrating the decision of the judge directing the
hearing or indeed have taken longer to arrange than the judge had contemplated.


39.     The pressing priority in my judgment, and in this I am entirely in
accord with Roderic Wood J, is for the Court of Protection to determine as soon
as it possibly can whether it has jurisdiction, namely whether SA does or does
not have capacity.


40.     Parker J's order records that on that occasion, although she could make
no order absent consent by the parties because of the pending appeal, there had
been discussions between the Official Solicitor and the local authority as to
the appropriateness of perhaps employing a new expert to advise on questions of
capacity.  It is quite clear, as Roderic Wood J would acknowledge, that there
requires to be further evidence in relation to the question of capacity, if only
because of the lapse of time.  In my judgment there are powerful reasons, as
matters stand today, why that further evidence as to capacity should come from
an expert who has not previously been involved in this litigation.  Accordingly,
at the end of submissions this morning I announced my decision and indicated
that it would assist if inquiries could be made as to the identity and
availability of such an expert.  I am told that an expert has provisionally been
identified who, it is anticipated, will be able to provide an expert report on
the issues which, in my judgment, require to be explored at this stage in time
for a hearing in October.


41.     The precise details of the order, both as to its content and as to its
timing, is a matter which I will leave initially to Ms Richards and Mr Ruck Keen
to consider when they draft the order which I am going to invite them to put
before me, but which I will finally determine when I have their draft.  However,
in my judgment, and consistent with Roderic Wood J's approach and with the
outcome of this application and this appeal, the first priority is to have a
hearing, ideally in October, at which the question of capacity can be finally
determined.  In relation to that, I will give appropriate directions, including
directions, once the expert has been formally identified and has formally agreed
to act, providing for a report to be obtained from the identified expert in time
for a hearing, I would hope, in October.  Following in large part the language
of Roderic Wood J's order, I will include directions requiring SA and her mother
to cooperate with and facilitate that process.  The precise wording of the order
is something I will consider once I have a draft, but, bearing in mind the
defiance which was repeatedly expressed before me this morning by both SA and
her mother, I am persuaded that the order must be subject to a penal notice.


42.     There is a further question which is very much at the forefront of the
thinking of both SA and her mother.  Their belief is that they are at present
restricted by order of the court from having access to SA's passport, which they
say SA needs, as they explained to me, for two separate reasons: (1) to enable
SA and her mother to travel abroad to North America to visit relatives,
including elderly relatives there; (2) quite independently of that, because they
assert that SA needs to be able to produce a valid passport for the purpose, for
example, of opening a  bank account, obtaining registration with employment
agencies and, so it is said, seeking a driving licence.  Their anxiety -- and
more than once they said this was their main point -- is that they should be
freed from that fetter.


43.     Over the adjournment Ms Richards, who has come very recently into this
case, helpfully went back through all the orders and discovered that the only
order restraining use of or application for a passport is the order originally
made by Macur J directed to the father and the grandmother, and that the only
other order bearing upon the question of the passport is an order made by
Roderic Wood J on 5 October 2009 requiring that the Identity and Passport
Service disclose forthwith to the Official Solicitor's solicitors a copy of any
application made since February 2008 for a passport and identity document for
SA.


44.     This discovery by the local authority and the Official Solicitor, as a
consequence of Ms Richards' industry, caused a certain amount of consternation
because, whereas I had been contemplating this morning that I should perhaps
give directions for the early trial of an application by SA for the return of
her passport, it would now seem more appropriate that any application that is to
be made is an application not by SA to be released from some order which does
not exist, but, on the contrary, an application to be made by those (as I
understand it, the local authority) who seek the making of an order in the terms
which were previously thought to exist but does not.


45.     This difficulty arose after the point at which -- as the transcript will
show -- shortly after I had announced my decision this morning, SA and her
mother left court.


46.     Bearing in mind the currently conceived ambit of the litigation which,
to repeat, is  currently focussed upon facilitating the performance by the local
authority of its duties under Section 47 of the 1990 Act, it is not  immediately
obvious why there is any need to control SA's movement by restricting her access
to a passport.  However, Ms Richards indicates that the local authority's
concern, a concern, as I understand it, shared by the Official Solicitor, is
that at some point in the future the result of the emerging picture, in the
light of the statutory assessment process, may be the adoption by the local
authority of a stance in the litigation which may encourage SA and her mother to
leave the jurisdiction.  The evidential basis for that, as far as I am currently
aware, is thin, and it is a number of stages along the line in relation to the
litigation, the focus of which, as I have said, is at present upon the provision
of statutory services.  It seems to me that it is for the local authority which
wishes to obtain this protection to make an application.  It must do so as a
matter of urgency, and the application must be supported by proper evidence
identifying why it is appropriate for such an order to be sought and what the
basis of the asserted fears and concerns may be.


47.     I am persuaded, albeit I confess reluctantly, to grant an injunction in
appropriate terms preventing SA and her mother from having access to the
passport or a new passport (it appears that the current passport may have
expired), but only for such a period as will enable the local authority to make
its application and have its application listed before the Court of Protection.
I am not prepared to make an injunction pending the outcome of such an
application because I regret to say I have no confidence, whatever the
enthusiasm with which the local authority pursues the matter, that an early
listing will be obtained for such an application.  The question of whether or
not there should be an interim injunction pending the outcome of such an
application is properly a matter for the Court of Protection and not for this
court, but I will grant an injunction in the short term to cover the position
before and pending the point at which the local authority is able to have its
application for interim relief listed by the Court of Protection.  I am not, as
at present advised, minded to grant an injunction for more than, say, six weeks,
my intention being that the matter -- that is to say the matter in relation to
the application for an interim order in relation to the passport -- should be
before the Court of Protection as early as possible in October.


48.     The precise details of the order will have to await the drafting
process, for which I express my anticipatory gratitude to Mr Ruck Keen and Ms
Richards.  Depending upon the expert's timetable, I will decide once I see the
draft order whether the passport matter can be listed at the same time as the
capacity matter or whether it is more appropriate to list them separately.
Ideally they should be listed together, but if for some reason it is not going
to be possible for the capacity question to be determined during October, then
my current view is that the passport issue should be dealt with before then.
Whatever may be the position in relation to foreign travel, it is I think a
matter of which I can properly take judicial notice that in current
circumstances, being deprived of the use of a passport in relation to such
matters as employment and banking is, to put it no higher than this, a very
serious inconvenience.  But it seems to me that if SA, who has not, as it turns
out, been previously restrained is to be fettered in this way, that is a matter
which requires to be considered by the court with the benefit of full evidence
on both sides, which of course I do not have.


49.     There is one final aspect of the matter I must mention.  As I have
already recorded, SA and her mother, on numerous occasions during the hearing
this morning, expressed their complete unwillingness to participate in or
cooperate in any fashion with any kind of assessment, whether by Dr Pearce, by a
new psychiatrist or in relation to anything else, and they made it as clear as
could be that they will not cooperate in that process.  Indeed, on a number of
occasions the mother made comments to the effect that there was no point in
dismissing the appeal and there was no point in proceeding with any kind of
assessment of the kind directed by Roderic Wood J because they would not
cooperate.


50.     As to that, I make two observations. First, the court cannot be held to
ransom by a litigant who simply seeks to determine the outcome by announcing in
advance an intention not to comply with the court's order.  The fact is that
there is a dispute, between on the one hand the family and on the other hand the
local authority and the Official Solicitor, as to whether SA does or does not
have capacity.  That dispute is a fact, and it is a fact despite the mother's
repeated assertion that there is no basis for the local authority's contention;
and it is a fact despite her dogmatic assertion, endlessly repeated, that SA has
capacity.  It goes without saying, but I say it so that SA and her mother, when
they come to read this judgment (they having decided to absent themselves from
court), should understand precisely the basis upon which I am proceeding.  Where
there is a dispute of this kind the law provides for the dispute to be resolved
by a court.  Litigants cannot simply announce in advance that they will defy the
court; that is simply destructive of the rule of law.


51.     Moreover, I am concerned here with a parental jurisdiction which,
subject to the question of capacity, is a jurisdiction to be exercised in SA's
best interests.  The law confers upon Roderic Wood J, as the judge of the Court
of Protection and in the event of an appeal upon this court, the obligation of
making such orders as seem to the court to be proper so that the Court of
Protection can properly exercise its jurisdiction.  I cannot be allowed to be
deflected from my duty by the adamant opposition, however vehemently or
frequently expressed by the mother, to the order which I judicially determine to
be the appropriate one in the circumstances, any more than Roderic Wood J would
have been deflected from doing his duty by anything the mother said to him on a
previous occasion.  I have very much in mind the stated position of both the
mother and SA, that there is no basis for the assertion that SA lacks capacity,
just as I have very much in mind their stated position by way of response to the
court's order.  They repeatedly complain that I did not listen to them, as they
sought to complain before me that Roderic Wood J did not listen to them.  But
that is not so; the transcript will show that they had every opportunity of
expressing their views, and I have their views and what they said to me very
much in mind.


52.     The second point is this, and it flows from the first.  The court
necessarily proceeds, and has to proceed, on the basis at this stage that its
orders will be complied with; and the mere fact that a litigant, perhaps in the
heat of a frenzied battle, may breathe defiance is not to be taken by the court
as necessarily an accurate reflection of what will happen in the future.  The
court assumes, is entitled to assume, has to assume, because otherwise the road
leads to anarchy, that its orders will be complied with.  If it turns out that
my order is not complied with, then no doubt some application will be made to
the Court of Protection for consequential relief designed to ensure that the
court's orders are in fact complied with.  But for the moment it would be wholly
wrong for me to allow myself to be deflected from doing what is right and making
the order that is right by the expressions of opposition and defiance which are
voiced by both SA and her mother.  What it does necessitate, as I have already
indicated, is that my order contains a penal notice.  It seems to me that the
order, following no doubt in large measure the form of order provided by Roderic
Wood J, should not merely contain the appropriate declaration as to the need
for the further assessment (confined to the questions of capacity) but also the
consequential directions requiring cooperation and facilitation by SA and her
mother.  In addition, the order should contain a liberty to apply as to
implementation and enforcement, that is, liberty to apply by the local authority
and/or the Official Solicitor in the event of difficulty, that application to be
made to the Court of Protection.


Order:  Application allowed in part

==External link==
{{#bailii:(2010) EWCA Civ 1128|no}}

[[Category:Judgment available on MHLO]]

[[Category:Best interests]]
[[Category:No summary]]
[[Category:Transcript]]
[[Category:2010 cases]]