Re SA; FA v Mr A  EWCA Civ 1128
Court of Protection case. [Summary to follow.]
The transcript is reproduced below (Crown Copyright):
Neutral Citation Number:  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 - - - - - - - - - - - - - - - - - - - - - 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. - - - - - - - - - - - - - - - - - - - - -
(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
Possible Bailii link (not there when checked last night, but might have appeared since)