RT v LT [2010] EWHC 1910 (Fam)

(1) Applying the MCA 2005 provisions, LT lacked capacity in relation to residence and what contact she should have with her family. (2) Wherever possible, the plain words of the Act should be directly applied to the facts of the case in hand, but there will be cases in which it may be necessary to look at pre- or even post-Act authority on the question of capacity.

Official summary

The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).

13. RT v LT and A Local Authority [2010] EWHC 1910 (Fam)B (Sir Nicholas Wall, President, 27 July 2010). http://www.bailii.org/ew/cases/EWHC/Fam/2010/1910.html LT was born in 1987. When she was 2½ she was fostered by, and subsequently adopted by, RT and his wife. She has been variously diagnosed as having disorders of an autistic nature. Shortly before her eighteenth birthday, she moved into residential care. In October 2009 an inconclusive capacity assessment was undertaken regarding her capacity to return to live with her parents. Her father, RT, applied for a declaration that she had capacity to make decisions about (1) where she should live, and (2) what contact she should have with members of her family. Dr K, a consultant psychiatrist, considered that she lacked the capacity to decide where she should live, but that she did have the capacity to decide that she wanted contact with family members (paragraph 32). RT disagreed, and thought that she also had capacity to decide where to live.

Possibly the two most important paragraphs in the judgment are 40 and 49. At paragraph 40 the President said: “In my judgment, section 3 of the Act is at the heart of the case. The use of the word “or” in section 3(1) (c) demonstrates that the individual capacities set out in section 3(1) are not cumulative. A person lacks capacity if any one of the subsections (a) to (d) applies. In the instant case, I am satisfied that section 3(1) (c) applies.”

In a postscript the President commented briefly on counsel’s submission that pre-Act learning was now all obsolete, and that all that was required was an examination of the terms of the Act. At paragraph 49 he said: “What we now have is the Act (as amended) and the essential judicial task is to apply the plain words of the Statute to the facts of the case before the court. On the facts of this case, reference to authority is otiose: the evidence from Dr K, which I accept, plainly fits section 3(1) (c) of the Act, and there is no need to look anywhere else.”


Hearing: 20/7/10

Judgment: 27/7/10

Before: Sir Nicholas Wall, President of the Family Division

Kate Markus (instructed by Switalskis Solicitors LLP) for the Applicant

Joseph O'Brien (instructed by her Litigation Friend the Official Solicitor) for the First Respondent

Roger McCarthy QC (instructed by LA Legal Department) for the Second Respondent


[2010] All ER (D) 02 (Aug)

Duplicate Bailii citation number: [2010] EWHC 1910 (COP)B

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