See also: [2007] EWHC 2689 (Fam)
Mr Justice Munby :
- This is a case under the inherent jurisdiction in relation to vulnerable adults. It raises at least one important point of principle.
Background
- MM was born in August 1968. She suffers from paranoid schizophrenia. Her illness is characterised by prominent visual, auditory and tactile somatic hallucinations and appears to relapse rapidly at times of stress. She has only limited insight into the nature of her illness. She has a full scale IQ of 56, a moderate learning disability and poor cognitive functioning. She has significantly impaired or non-existent verbal recall and is functionally illiterate.
- MM's childhood appears to have been chaotic and emotionally deprived. She was taken into care at the age of 13 having been sexually abused by her elder brother.
- For something of the order of 15 years MM's partner has been KM. They met in or around 1992 whilst living at a homeless person's hostel. KM has in the past been diagnosed with a psychopathic personality disorder and alcohol misuse. Attempts in the past to provide him with support have failed due to his abusive conduct towards professionals. He has led an unstable and nomadic life, to which MM has been exposed. He has been violent towards her and is alleged to have used her benefit money to buy alcohol. He has encouraged MM to follow him to various addresses and to disengage from psychiatric services resulting, according to the local authority, in deterioration in her mental health. The extent to which he is at present receiving medical or psychiatric support is unknown.
Precipitating events
- On 1 March 2006 MM took up residence in supported accommodation at the W unit. An agreement provided that KM would not attend at the unit, that MM would inform the staff if she intended to go out and that she would return by 8.30pm. On a number of occasions, and encouraged by KM, MM left the unit without warning and for extended periods of time, apparently sleeping rough and not receiving her medication.
- On 6 June 2006 the local authority received information indicating that KM was proposing to take MM to stay with his brother in a different part of the country.
The proceedings
- The local authority issued a Part 8 claim form on 8 June 2006. Earlier the same day it had obtained ex parte relief from Her Honour Judge Bevington (sitting as a judge of the High Court). Interim declarations were granted that MM lacked the capacity to decide where she should reside and with whom she should associate and that it was not in her best interests to be removed from the W unit or to have unsupervised contact with KM. An order was made that she was not to be removed from the W unit. The Official Solicitor was invited to act.
- That interim relief was continued by an order made by Black J on 16 June 2006, save that the specific references to the W unit were replaced by more general references to any supported accommodation provided to MM by the local authority. Black J's order provided for KM to have supervised contact with MM not less than twice a week for not less than two hours each session.
- The matter was next before Bodey J on 14 July 2006. By then MM was missing from the W unit. Bodey J continued the interim relief until the final hearing. His order gave the local authority power to terminate contact at its discretion if KM was under the influence of alcohol, abusive or aggressive or was putting the local authority's staff at risk of harm. KM was ordered to assist the local authority and the police in achieving the return of MM to the W unit. Bodey J also gave directions, including directions (subsequently varied by Singer J on 28 September 2006) for the preparation and filing of expert reports.
- On 24 July 2007 Holman J made various disclosure orders with a view to finding MM.
- On 27 July 2006 MM was found by the police and returned to the W unit. She was in a dishevelled and unkempt condition. A relapse in her mental health was resolved by medication, but her behaviour deteriorated. She was aggressive and abusive towards staff and other residents. The placement at the W unit was at risk of breaking down.
- By 6 October 2006, when the matter came before Wood J, the local authority had identified an adult family placement which it was felt would meet MM's needs. Wood J was told that the local authority planned to move MM from the W unit to the adult family placement should her placement at the W unit break down. Her challenging behaviour at the W unit continued and on 10 October 2006 MM was 'sectioned' pursuant to section 2 of the Mental Health Act 1983.
- On 27 October 2006 the matter came before Kirkwood J. MM was due to be discharged on 30 October 2006 and the local authority's plan, approved by Kirkwood J, was for her to move immediately into the adult family placement. Kirkwood J reduced MM's contact with KM to once a week for up to two hours. KM was prohibited from removing MM from the adult family placement, from approaching within 100 yards of it and from contacting MM's carers at the placement. Kirkwood J gave further directions with a view to a final hearing on 7 February 2007.
- MM moved to the adult family placement on 30 October 2006. Unfortunately the placement broke down on 22 December 2006. An emergency placement was found at a residential care home. It was an appropriate interim solution but the local authority was properly sceptical as to whether it would meet MM's long-term needs.
- On 26 January 2007, Coleridge J gave final directions.
- On 6 February 2007 it became apparent that the final hearing (which by then had been listed in front of me) could not be effective. I was invited, but refused, to make an order by consent vacating the hearing. The hearing on 7 February 2007 accordingly proceeded as a directions hearing. I reserved the matter to myself, gave directions for further expert evidence, listed the matter for a case management conference on 22 March 2007 and re-listed the final hearing for 5 June 2007. In the event the matter came back before me on 10 May 2007, rather than on 22 March 2007, when I gave final directions.
- In the meantime, on 19 March 2007, MM had moved into permanent accommodation an independent supported living placement. That had been agreed by all the professionals at a conference on 22 February 2007 as meeting MM's needs. Since moving there, MM appears to have settled reasonably into the placement.
- The final hearing started on 5 June 2007, when I heard oral evidence. Submissions followed on 7 June 2007. I reserved judgment.
The local authority's case
- In accordance with a direction which Coleridge J had given on 26 January 2007 that it was to serve a position statement outlining the declarations and orders it would be seeking, the local authority had formulated the order it was seeking with some precision.
- In the first place it sought declarations that MM lacks capacity to conduct litigation on her own behalf, to make decisions as to where and with whom she should reside, to determine with whom she can have contact or associate with, to manage her own financial arrangements and to enter into a contract of marriage. (The local authority accepted that MM has capacity to consent to sexual relations.)
- Further, the local authority sought declarations that it is in MM's best interests that she resides in supported or other accommodation provided or approved by the local authority, that she is not removed from such accommodation without the prior consent of the local authority and that she does not have contact with KM other than as provided and facilitated by the local authority.
- Finally, and in furtherance of MM's best interests, the local authority sought orders in the following terms: that MM reside in supported or other accommodation provided or approved by the local authority; that the contact between MM and KM be supervised by the local authority and take place once per month for a period of two hours at a venue appointed by the local authority; that the local authority be at liberty to terminate such contact if KM is under the influence of alcohol, is aggressive or abusive to local authority staff; that KM be forbidden from removing or instructing encouraging or assisting any other party, or MM herself, to remove MM from the accommodation provided or approved by the local authority; and that KM be forbidden from making direct or indirect contact with MM or from instructing encouraging or assisting any other party to do so other than as ordered by the court or agreed by the local authority. The local authority wanted penal notices to be attached to those of the orders which were addressed to KM.
- By the end of the hearing the local authority had somewhat modified its position. It accepted that there should be direct, unsupervised, contact between MM and KM once per week and for up to four hours, and such further contact as might be agreed between the allocated social worker, MM and KM. It also accepted that there should be a review of the contact arrangements at a further hearing before me to be listed in October 2007.
The expert evidence
- There are expert reports from:
i) Dr Milne, consultant psychiatrist, dated 4 October 2006, 20 October 2006, 15 November 2006, 18 January 2007 and 12 March 2007 her principal report is that dated 15 November 2006; and
ii) Mr Fowler, social work consultant, dated 21 October 2006, 14 November 2006, 22 January 2007 and 23 May 2007 his principal report is that dated 14 November 2006.
Neither Dr Milne nor Mr Fowler needs any judicial encomium. Both are highly experienced in this kind of work, having given evidence in many of the cases brought under the inherent jurisdiction.
The expert evidence Dr Milne
- Dr Milne's conclusions in relation to capacity as set out in her report of 15 November 2006 can be quickly summarised:
i) Applying the test in Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, MM lacks the capacity to litigate.
ii) Applying the test in Re MB (Medical Treatment) [1997] 2 FLR 426, MM lacks the capacity to decide where she should live and with whom.
iii) Applying the test in Re MB (Medical Treatment) [1997] 2 FLR 426. MM lacks the capacity to decide with whom she should have contact.
iv) Applying the test in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, MM lacks the capacity to marry.
v) MM also lacks the capacity to manage her finances.
vi) However, applying the test in X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, MM does have the capacity to consent to sexual relations.
- In relation to MM's capacity to decide where she should live, and with whom, and to decide with whom she should have contact, Dr Milne added this:
"She has only limited insight into her own care needs and has no appreciation of the fact that living with KM has repeatedly led to a situation where her own mental and physical health is at risk. Her history indicates that she has repeatedly disengaged from involvement with services which are essential to her well being.
It is my opinion that MM does not have the mental capacity, in accordance with the test as set out in Re MB [1997] 2 FLR 541 to decide with whom she should have contact. MM does not have insight into the fact that when contact even by telephone with KM has increased that her mental state has deteriorated and that this has at times led to situations where placements have broken down as was occurring at [the W unit] shortly before her most recent admission to hospital.
MM is additionally in denial about the injuries which KM has caused to her in the past and this further impairs her capacity in both these areas."
- Dr Milne elaborated this in her report dated 12 March 2007:
"I am aware that the view of the Official Solicitor is that in cases of residence and/or contact the information material to the decision which is to be made is:-
1 Information about the level of care which will be available in the home or during contact.
2 Information about the psychological and emotional benefits or satisfaction which the home or contact will provide.
3 Information about any physical, psychological or emotional harm or distress which may be sustained in the home or as a result of the contact.
4 Information about the advantages and disadvantages for the individual and his lifestyle of the opportunities which the home or contact will provide in the short medium and long term.
As I concluded in
my original report MM lacks capacity in these two areas. She does not appreciate her own care needs or understand how these could be met nor does she appreciate that the relationship with KM has been repeatedly harmful to her as has contact with him. If she were purely making an unwise decision but understood and appreciated all of the above points in respect of her relationship with KM then my conclusion would have been different."
- In relation to capacity to marry and to consent to sexual relations, Dr Milne said this in her report of 15 November 2006:
"At interview it was clear that MM understood the nature of sexual intercourse and that she additionally had an understanding of the risks of this including the risks of pregnancy and sexually transmitted diseases. She also would be capable of verbally refusing sexual intercourse although she may not always appreciate that she is in a risky situation. I am assuming here that the legal test for capacity to consent to sexual relations is a general test and is not a question of whether a person could consent to sexual relations with one specific individual, therefore she has the capacity to consent to sexual relations but does not necessarily have the capacity to understand that having a relationship with a particular partner (in this case KM) could be harmful to her.
When examining the capacity of MM to marry she was able to give me a list of words which she told me was what marriage meant. However she did not understand these words or the concepts that they represented. Asking her to explain what a single item from the list of words meant resulted in her repeating the list by rote. It is unlikely that she will in the future understand the duties and responsibilities of marriage in the future."
- Dr Milne elaborated this in her report dated 12 March 2007:
"MM despite having
lived with KM for long periods during their relationship could not adequately describe the purpose of marriage. She produced a list of words during the interview as if this had been learned by rote. She could not describe even in the simplest of terms the meaning behind any of the words which she mentioned. Asking her to give an explanation produced the same list in the same order followed by a number of excuses in an attempt to divert my attention from the fact that she could not answer my questions. This type of behaviour is very common in patients with a learning disability. Even with leading questions MM could not explain in the simplest of terms the purpose of marriage or the nature of the marriage contract. Many of the words in the list which she produced would also describe the situation which pertains when a couple do live together without getting married. This may reflect the fact that she has lived with KM for a considerable period but does not detract from her inability to understand the nature of either marriage vows or the contract of marriage.
MM did understand the nature of sexual intercourse. She was able to accurately describe and name the parts of the human body, could describe the sexual act and was aware that sexual intercourse could lead to pregnancy. She was also aware that sexual intercourse could result in "VD". This was the term that she used and I note that she has had treatment for a sexually transmitted disease in the past. MM is also capable of refusing sexual intercourse. I noted in my original report that she may not always appreciate that she is in a risky situation, meaning that she may not always realise that someone would respect her refusal to have sexual intercourse but this does not mean that she lacks the capacity to make the relevant decision."
- In Dr Milne's opinion MM is unlikely to acquire capacity in the future. She elaborated this in her report dated 12 March 2007:
"You have also asked me to further comment on my conclusion that MM is unlikely to acquire capacity in the relevant areas. MM is 38 years of age. She is no longer in the developmental period and therefore her underlying level of ability will not increase. In time it may decrease. The available information indicates that MM's level of intellectual functioning is very significantly impaired. She would not be capable of living independently without significant assistance. In addition to her learning disability MM also suffers from a psychotic mental illness. This will have two main effects. Firstly during periods of exacerbation of that illness her intellectual functioning and ability to make decisions will be further impaired. Secondly over time patients with severe mental illness can experience an overall deterioration in intellectual functioning outside of periods of acute exacerbation of the illness. At the time that I assessed MM she was not acutely psychotic. It is likely therefore that at the time of the assessment her level of functioning and therefore decision making ability was at its best. It is for these reasons that I drew my conclusion that she was unlikely to acquire decision making capacity in the relevant areas in the future."
- Dr Milne also made the general point that it is the combination of MM's mental illness and her learning disability, combined with her abusive experiences in childhood, which are the major contributors to her vulnerability both generally and more specifically in her relationship with KM.
- In relation to best interests, Dr Milne said that it is not in MM's best interests to reside temporarily or permanently with KM, whether with or without a support package.
"This arrangement has been the situation for many years and has clearly represented a significant risk to MM
it is in MM's best interests to remain in accommodation where she has the opportunity to acquire new skills and she is protected from exploitation."
- In relation to contact Dr Milne recognised that MM has a strong emotional bond to KM, that she would wish to see him and that she would become distressed if all contact were to cease. Based on past events, Dr Milne saw contact as potentially undermining MM's placement and expressed the view that there should be 'maintenance' contact, supervised at all times, "not least because MM has repeatedly failed to return from unsupervised contact in the past." Dr Milne also recognised, however, that MM was used to a large degree of autonomy.
- In her report dated 18 January 2007, Dr Milne said that her opinion as to MM's best interests had not altered.
- Dr Milne gave oral evidence before me on 5 June 2007. On the substance of her reports she remained firm despite probing cross-examination: "nothing has changed." She acknowledged that MM gets pleasure from her contact with KM and that they care for each other deeply. If her long-standing sexual relationship with KM were to be stopped, it would be "very, very distressing" for MM.
The expert evidence Mr Fowler
- Mr Fowler's principal report is that dated 14 November 2006. He expressed the view that MM's wish to move out of local authority care and resume her relationship with KM was not in her best interests:
"It is my view that MM should not move to reside either temporarily or permanently with KM.
MM has not accessed appropriately medical or social work support systems when she has been living with KM and I do not believe that they would accept any form of support package designed to support and monitor them living together in the community.
I cannot imagine any package of support which could appropriately safeguard and promote MM's welfare if she was living in the community with KM."
- In relation to contact, Mr Fowler said this:
"There is in my view significant historical evidence to demonstrate the power which KM exercises over MM and the extent to which she is influenced by his behaviour and comments. That influence does not serve her best interests.
It is my view that KM's actions in relation to MM are predominantly informed by his needs and where that conflicts with MM's best interests he will prioritise his own needs over those of MM.
I believe that overtly or covertly he will attempt to undermine MM's placement within local authority arranged accommodation because his primary goal is to be reunited with MM.
The frequency of contact and the nature of contact should at all times be informed by this.
The potential for KM to cause MM emotional distress and upset during telephone conversations should not be underestimated. The management of this aspect of their contact is in my opinion a crucial element of any future contact arrangements. The most certain way of dealing with this would be to prevent such contact from taking place.
If direct contact is supervised the possibility of KM compromising MM's placement is greatly diminished. At the moment MM enjoys seeing KM and I would be reluctant to prevent that from happening."
He recommended a level of 'maintenance' contact which he suggested should be monthly for a period of two hours. It should be supervised and, for the time being, be at the offices of the social worker.
- Speaking of his observations of MM and KM together, Mr Fowler made these important comments:
"During the period of observed contact it was apparent that KM is much more competent than MM. At times he used that positively, for example, he corrected her spelling without criticism. He also promoted her self esteem and self image by complimenting her work on preparing Christmas cards and encouraged her generally.
MM responded positively to KM's tactile behaviour and positive comments. There was evidence of a significant emotional connection to him. There must be times when she feels cared for and cared about by him in ways she has never previously experienced. It is likely that she has seen the abusive aspect of their relationship as a price worth paying for these positive emotional feelings.
However, he also demonstrated an ability to pursue his own agenda, for example suggesting [the W unit] was not a good place for MM to be as this would prevent their relationship from continuing.
I believe that KM is aware of the power he has over MM and his ability to manipulate her to satisfy his own needs. Because his behaviour appears clearly to be designed to prioritise his own needs, he has no regard for how his actions impact upon the physical and emotional health of MM. He telephones when he feels low in mood or upset and projects those feelings on to her. At other times he does not telephone and this leaves MM distressed.
At times he appears to create situations which he knows must cause MM emotional distress, for example he gave the brother of MM her telephone contact details. Whether he does this to maintain some dependency upon him or because of a felt jealousy/spite is unclear. Whatever his motivation the consequences to MM is extremely unhelpful.
There is evidence that he undermined her placement at [the W unit] and in my view would continue to do so if she was placed in any situation which he believed threatened the extent to which he is able to control and manipulate her."
- That report was written, of course, before MM's adult family placement had broken down. Mr Fowler's next report, on 22 January 2007, was written after MM had moved to the emergency placement in the residential care home. He recorded that she had not settled well there and appeared to have already developed a fixed idea that she did not want to live there. That view, he thought, was likely to remain. He was concerned about her current presentation and canvassed the desirability of looking for another placement. He commented that "MM is still pre-occupied about living with KM."
- By the time Mr Fowler wrote his final report on 23 May 2007, MM had moved into permanent accommodation in the independent supported living placement. He said:
"It is my opinion that MM's current placement appropriately safeguards and promotes her welfare.
The staff group has the skills and expertise to manage both her learning disabilities and her mental health problems.
I would be concerned that if she was not being looked after in residential accommodation she would be living in circumstances where her mental health would be at risk because she would not be taking her medication and her physical health would suffer because she would be living in unacceptable conditions."
- By then, KM was having contact with MM once weekly for sessions of two hours. Mr Fowler commented:
"MM is reported to look forward to these meetings. Her appearance is improved and she presents as happy. KM has recently supplied MM with a mobile telephone and it is my belief that they have probably been having unsupervised telephone contact. This could well account for the unsettled period she is having at the residential unit.
Given that final orders are required in this matter I do not believe that once weekly supervised contact and the prevention of telephone contact is sustainable in the medium term or in the best interests of MM. The main concern throughout has been to establish circumstances where MM is being looked after in ways which safeguard and promote her welfare. I believe that has been achieved through her current placement. In my opinion the following arrangements are in MM's best interests.
- The continued prevention of telephone contact with the attached penal notice, is likely to be breached and has probably already been so. I feel telephone contact should be allowed to take place on a regular basis, but should perhaps be time limited.
- Restricting actual contact to once a week for a two hour supervised period as a medium and long term strategy prevents any normality being possible within their relationship. It is likely to create ongoing resentment.
- It is my opinion that "managed" periods of unsupervised contact are the most appropriate way forward. For example, a period of unsupervised contact of between 2 and 4 hours could be permitted each week. There would need to be specific and clear conditions in place to inform such an arrangement. For example, a designated meeting and separating point, a geographical restriction within which they can travel and conditions which would ensure that MM's physical and emotional well being was safeguarded and promoted at all times.
- I have spoken with the Social Worker [JS] about MM's sexual health and he has agreed that this would be addressed with her.
- The court may feel that in the event of this being an agreeable way forward, permission can be given to the Local Authority to be flexible about such arrangements in the future depending upon the circumstances which exist at the time. The primary consideration must always be that arrangements are in place which serve MM's best interests."
- Mr Fowler also gave oral evidence before me on 5 June 2007. He supported the local authority's revised proposals. He was not opposed in principle to telephone contact between MM and KM. He thought the contact arrangements should be reviewed after about three months.
The local authority's evidence
- The local authority's main evidence is to be found in witness statements of its social worker, PR. In his statement dated 16 May 2007, PR said that MM was starting to settle at her new placement. Her mental health had been relatively stable and the times when she was anxious and agitated had been few and far between. It was, in his opinion, the most appropriate placement that was able to meet her needs. "I am certain that MM's current placement is the best place for MM."
- PR reported that the consistency of contact between MM and KM had improved and expressed the view that regular contact with KM was beneficial to MM and something that she clearly looks forward to each week. He said:
"the highlight of MM's week seems to be her contact with KM. Recently I happened to see MM while she was waiting for KM to arrive
for the arranged contact; I was very surprised to see that MM had obviously made a lot of effort in her appearance, her hair was well groomed and she was dressed immaculately. She was very upbeat, evidently because she was about to see KM; I would say that I have never seen MM as well presented. When I visited MM at the placement, MM usually asks if I have heard from KM."
- But he expressed concern about what he called the finer details of the actual contact arrangements which involves social workers 'shadowing' MM and KM at a discreet distance whilst they are out for a walk:
"I have shadowed MM and KM previously and found it extremely uncomfortable and unworkable to follow two people so closely. It is impossible to hear what MM and KM are saying to each other, it is made more difficult by the fact that they take part in close intimate physical contact, often sexual in nature.
If it were permitted for MM and KM to have sexual intercourse, legally this would not be allowed in a public place and would therefore have to take place in a private place, such as a hotel. This would mean allowing MM and KM to have time alone unsupervised. They would then be able to collude, enabling KM and MM to exchange as much information as they liked, giving KM the ideal opportunity to unsettle and de-stabilise her placement
The Local Authority would therefore not be able or willing to provide a place in which MM and KM would be able to have sexual intercourse."
- PR recommended that MM should remain in her current placement and that contact between MM and KM should continue unchanged, that is, two hour supervised contact sessions once a week.
- On 22 May 2007 there was a case conference at which the question of contact was discussed. (PR, it should be mentioned, was not present.) It was noted that MM "does not present herself as well when she is not due to see" KM. MM was reported as saying that she was happy at present because KM was turning up for contact. The community nurse, CA, said that contact between MM and KM was good for MM's mental health as it gave her something to look forward to. Mr Fowler suggested arranging for MM and KM to have unsupervised contact each week.
"This may stop the secrecy that [MM and KM] have been forced into and deals with [MM's] right to a sexual relationship."
It was felt that contact should take place within a defined area and on the basis that KM would return MM at an agreed time.
- PR made his final statement on 1 June 2007. He said:
"In terms of supervised contact so far between MM and KM this has been successful recently, the reports from support workers
are usually good and have shown that KM and MM have enjoyed each other's company during their weekly contact sessions. It has also been noted that MM seems to be enjoying her contacts and indeed looks forward to them on a regular basis. Her presentation at the contacts is good and I feel that this does demonstrate the level of care and attention she puts in to her own appearance to ensure that she looks good for KM when they see each other. I also feel that an optimum level of consistency as to contact has been reached, the weekly contact provides a good opportunity for MM to maintain her relationship with KM and at the same time she is developing herself and establishing her presence at her placement which is essential for the placement to be a happy and stable one in the long term."
- He agreed with the view expressed at the case conference that unsupervised contact should be considered, subject to strict conditions (for example, as to the area within which the contact should take place and the need to keep to the agreed times), and suggested that unsupervised contact might be tried on a trial basis for (say) four to six weeks. He voiced his concerns that MM and KM might collude and run away. He continued:
"Clearly, the unsupervised contacts do have consequences if KM chooses not to obey the court order and does things his way. At the same time, I do see an advantage to the unsupervised contacts and recognize that it will allow the couple their own time to be alone together and enjoy a private and intimate sexual relationship. I feel that if the court were to consider varying the original order then it may be worthwhile the couple having an unsupervised contact of say 4 hours on a weekly basis."
He said that if the unsupervised contacts proceed successfully "I see no reason why she should not be allowed to see KM on a regular unsupervised basis." He suggested that telephone contact, which appears to have been taking place surreptitiously, should be permitted on a supervised basis, at set times and possibly for limited periods.
- PR did not give oral evidence.
The Official Solicitor's evidence
- The Official Solicitor has made two statements it is no longer his practice to file reports. The first is dated 5 February 2007 and the second 4 June 2007. By the time he made his first statement the Official Solicitor had the benefit of having received reports from both Dr Milne and Mr Fowler. He was particularly exercised by what at that stage was being recommended in terms of its impact on MM's relationship with KM.
- The Official Solicitor's analysis is perceptive and sensitive and requires to be quoted in full:
"I have borne in mind that the relationship between KM and MM, is one which is longstanding and has included a number of lengthy periods when they have cohabited. MM has strongly held views and has repeatedly stated her wish to reside with and maintain a relationship with KM. As noted by Mr Fowler, MM and KM have been in a relationship for 11 years and there is a high level of interdependence between them. Mr Fowler also noted that MM has a strong emotional bond with KM. For much of their time together, KM and MM have had only sporadic input from statutory services, due to their transient lifestyle. Due to MM's lack of contact with her family, KM has been the one consistent figure with whom she has been able to develop and maintain a strong emotional relationship over this period.
The recommendations made by Mr Fowler and of Dr Milne in relation to MM's best interests include restrictions on MM's particular relationship with KM. However, I question how far it is appropriate for the court to interfere with regard to restricting and regulating MM's relationships with others (in this case specifically KM) in circumstances where the expert evidence is that MM has capacity to consent to sexual relations and would wish to continue her relationship with KM.
In seeking to regulate MM's residence and her contact to KM, the local authority is in effect seeking to regulate her relationship with KM. The current recommendations seek to constrain MM's ability to have any contact with KM other than on a supervised basis and as infrequently as once a month. This is notwithstanding MM's express and strong wish to see KM, speak to KM, live with KM and marry KM. Decisions made in terms of residence and contact will potentially restrict MM's ability to maintain a relationship with KM, including her ability to have sexual relations with him.
It is my submission, if the court finds it is in MM's best interests that her contact with KM should be regulated, that the court should adopt a cautious approach. In conducting the balance sheet exercise, weight must be given not only to MM's need for care and protection but also to fact that her relationship with KM has endured for a significant period of time, that it is a relationship which is important to her, and that the relationship has included a number of lengthy periods of cohabitation. In respect of the periods of cohabitation regard should also be given to all the potential legal and emotional ramifications of such an arrangement. I question whether the court should so restrict and regulate the terms of a relationship, in circumstances where MM has capacity to consent to a sexual relationship with KM, to the extent that such regulation may result in the breakdown of that relationship or impose a change in the nature of the relationship. I further note that to date KM has had no assistance with transport to and from organised contacts with MM, in either financial and practical terms and that this may have been a factor in the difficulty he had in attending contact sessions. I would strongly support such arrangements being put in place by the local authority to further facilitate contacts between KM and MM.
In this case it is proposed that all contact between MM and KM should be monitored and it is the position of the local authority, as supported by Mr Fowler in his November report, that contact should be reduced to once a month. The most recent indication from Mr Fowler is that contact between KM and MM should be reduced to a minimum pending the substantive hearing of the case in February. Any possibility of MM realistically making a decision with regard to engaging in sexual relations with KM is negated by the current arrangements for supervised contact, despite Dr Milne's current assessment that MM does have capacity to consent to sexual relations with another person.
I note that Dr Milne has commented on the distress to MM if all contact with KM were to cease, although she supports the decision to curtail telephone contact and to supervise contacts away from MM's home. Dr Milne was also supportive of Mr Fowler's proposals regarding contact in respect of his report of 1 November 2006."
- The Official Solicitor referred to MM's:
"eleven year relationship with KM which, for the most part, was akin to marriage, particularly in view of the long periods of time for which they resided as a couple."
He added:
"It would appear from the available records and the couple's own account that they were cohabiting for the majority of this period."
He continued:
"I note the need to have regard to questions of proportionality in terms of balancing MM's Article 8 rights and her best interests as regards contact with KM. Accordingly whilst I would be minded to support and adopt the recommendations of Dr Milne and Mr Fowler in respect of MM's best interests, I am uncertain as to whether the restrictions that this would place on MM's ability to maintain her relationship of choice, or the fact that it might fundamentally alter the nature of the relationship or alternatively might bring the relationship to an end, are lawful and I would seek the court's determination of that issue."
- The Official Solicitor returned to these points in his second statement. He reiterated his concerns about the proposed restrictions on MM's contact with KM and about the need in particular to have regard to questions of proportionality in terms of balancing MM's Article 8 rights and her best interests. Subject to certain reservations he supported Mr Fowler's most recent proposals, though questioning the practicability (and indeed the desirability) of limiting the telephone contact and the practicability of confining contact to a defined geographical area. He stressed the need for a detailed care plan.
- Noting that contact could not take place where MM is living, the Official Solicitor commented:
"I am concerned that although the local authority's most recent statement, dated 1 June 2007, supports unsupervised contact between MM and KM, there are no proposals in relation to where they might meet if MM chooses to consent to sexual relations with KM. If a safe environment is not made available for KM and MM to meet, this potentially places MM at risk."
- I share the Official Solicitor's concerns. It is a matter to which I must return. It raises fundamentally important questions of principle, public policy, and human rights.
Evidence of MM and KM
- Both MM and KM gave oral evidence. MM was boisterous and outgoing in the witness box. It was in many ways a bravura performance, though her cognitive, intellectual and other limitations quickly became all too apparent. But she had no hesitation and no difficulty in saying what she wanted: "to live with my partner that's what I want anywhere, with [KM] all I want is to live with him; I should live with him I can think for myself I want to live with him." She said that she loved KM "very much" and "he loves me we both love each other." It was apparent that she meant what she said. But she was in denial about KM's mistreatment of her (see below): "[KM] looks after me very good
he has never done anything to me he did not stab my leg." She said "I never fall out with him."
- KM was likewise in denial about the domestic violence. He was, by his own lights, recognising up to a point of his own problems, but he seemed genuinely attached to and concerned for MM. He said that he wanted to live with MM as husband and wife in a council house: "I love her." He said he would co-operate with social services. He deserved another chance. In relation to contact, if they could not live together, he said "I will go with the judge." He would promise to the court not to go to where MM is living.
The legal framework
- The local authority invokes the court's inherent jurisdiction in relation to vulnerable adults. The existence of the court's jurisdiction is no longer in doubt. Nor is there any doubt or uncertainty as to its essential shape in relation to cases such as this. There is no need for me to go to the authorities. The most recent summaries will be found in St Helens Borough Council v PE [2006] EWHC 3460 (Fam) and in Re PS, City of Sunderland v PS [2007] EWHC 623 (Fam).
- There are essentially two issues. First, does MM have capacity or does she lack capacity in relevant respects? Secondly, if and insofar as she lacks capacity, what do MM's best interests require?
- I turn first to the question of capacity.
Capacity the law
- Some things are now too well established to require citation of authority.
- First, an adult is presumed to have capacity until the contrary is established.
- Secondly, capacity is 'issue specific,' so someone may have capacity for one purpose but lack capacity for another purpose. That is why in cases of this kind it has now become the practice to grant separate declarations (for example) as to a vulnerable adult's capacity (i) to litigate, (ii) to decide where she should reside, (iii) to decide whom she has contact with, (iv) to decide on issues concerning her care, (v) to consent to sexual relations, (vi) to consent to marry and (vii) to manage her financial affairs.
- Thirdly, capacity is not merely issue specific in relation to different types of transaction; capacity is also issue specific in relation to different transactions of the same type. Thus a vulnerable adult may have capacity to consent to a simple medical procedure but lack capacity to consent to a more complex medical procedure. In the same way a vulnerable adult may have capacity to conduct some simple piece of litigation but lack the capacity to conduct more complex litigation. As Lord Donaldson of Lymington MR put it in In re T (Adult: Refusal of Treatment) [1993] Fam 95 at page 113, the question is:
"whether at that time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required."
So too, in principle, a vulnerable adult may have the capacity to consent to one kind of sexual activity whilst lacking the capacity to consent to some other (and to her unfamiliar) kind of sexual activity.
- The general principle is helpfully and accurately encapsulated in para 4.4 of the Mental Capacity Act 2005: Code of Practice:
"An assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general."
- What is also clear, and again I need not cite authority in support, is that the general rule of English law, whatever the context, is that the test of capacity is the ability (whether or not one chooses to exercise it) to understand the nature and quality of the relevant transaction.
- That puts the point at a very general level of abstraction. A more focussed test is to be found in Re MB (Medical Treatment) [1997] 2 FLR 426. But first I must go back to In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, where Thorpe J said this at page 295:
"I consider helpful Dr Eastman's analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, secondly, believing it and, thirdly, weighing it in the balance to arrive at choice."
- That was a case involving the question of capacity to consent to medical treatment. So too was Re MB ( Medical Treatment) [1997] 2 FLR 426, where Butler-Sloss LJ at page 437 explained the test as follows:
"A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
(a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question;
(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C
, a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Banks v Goodfellow (1870) LR 5 QB 549, 569:
'
one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration.'"
- As Butler-Sloss LJ had earlier pointed out at page 433, the Law Commission had suggested in 1995, in Law Com No 231, Mental Capacity, at paras 3.16-3.17, that the test of capacity should be as set out in clause 2(2) of the annexed draft Mental Incapacity Bill, namely that:
"a person is at the material time unable to make a decision by reason of mental disability if the disability is such that at the time when the decision needs to be made
(a) he is unable to understand or retain the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another or of failing to make the decision; or
(b) he is unable to make a decision based on that information."
Hale LJ pointed out in R (Wilkinson) v Broadmoor Special Hospital Authority and others [2001] EWCA Civ 1545, [2002] 1 WLR 419, at para [66], that Butler-Sloss LJ's formulation was closely modelled on the Law Commission's proposed test.
- What is essentially the same test as that set out in Re MB, albeit expressed in slightly different words, applies where the question is whether someone has the capacity to litigate: see Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, at para [26], where Kennedy LJ said:
"the mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision."
- Now on one level of abstraction each of these formulations is simply a statement of a general theory of what is meant by 'understanding' a problem and having the capacity to decide what to do about it. And this general theory, as I commented in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [134]-[135], applies, in principle, to all 'problems' and to all 'decisions'.
- What is in essence, as it seems to me, the same theory or principle is now to be found in the statutory test of capacity set out in section 3(1) of the Mental Capacity Act 2005:
"
a person is unable to make a decision for himself if he is unable
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means)."
- Mr Vikram Sachdeva on behalf of the Official Solicitor submits that there is no relevant distinction between the test as formulated in Re MB and the test set out in section 3(1) of the Act. I agree. As Mr Sachdeva points out, this is apparent from a mere comparison of the language used.
- Under section 16 of the Mental Capacity Act 2005, the (new) Court of Protection is empowered to make decisions about an incapacitated person's "personal welfare." Section 17(1) provides that:
"The powers under section 16 as respects P's personal welfare extend in particular to
(a) deciding where P is to live;
(b) deciding what contact, if any, P is to have with any specified persons;
(c) making an order prohibiting a named person from having contact with P;
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
(e) giving a direction that a person responsible for P's health care allow a different person to take over that responsibility."
- Section 27 of the Act, however, provides that:
"(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person
(a) consenting to marriage or a civil partnership,
(b) consenting to have sexual relations,
"
- It has generally been assumed and many examples of the assumption will be found in the books that the test as set out in Re MB applies not only where the question relates to capacity to consent to medical treatment or (in the terms as formulated in Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511) to capacity to litigate, but also where the question is whether a vulnerable adult has capacity to decide where she should reside, to decide whom she has contact with and to decide on issues concerning her care.
- One of the issues in this case is whether that assumption is in fact correct. In my judgment it quite plainly is. Here, as so often, the common judicial assumption accurately reflects the law, even if clear authority may hitherto have been lacking. Re MB and Masterman-Lister, as I have said, reflect a general theory which, moreover, has now been given statutory force in section 3 of the Mental Capacity Act 2005. And, as we have also seen, the test in its statutory form applies to all the aspects of "personal welfare" referred to in section 17 of the Act. It would be most unfortunate if the common law were to draw distinctions alien to a statutory scheme which is, in significant part, built on common law foundations. And it would be worse than unfortunate if a judge of the Family Division exercising the inherent jurisdiction had to adopt an approach significantly different from the approach to be adopted by the same judge when sitting in the Court of Protection exercising the statutory jurisdiction.
- Counsel helpfully drew my attention to para 4.32 of the Mental Capacity Act 2005: Code of Practice where it is pointed out that there are several common law tests of capacity covering capacity to make a will, capacity to make a gift, capacity to enter into a contract, capacity to litigate and capacity to enter into marriage (references being given to, respectively, Banks v Goodfellow (1870) LR 5 QB 549, In re Beaney (deceased) [1978] 1 WLR 770, Boughton v Knight (1873) LR 3 PD 64, Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511 and Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326). Para 4.33, to which my attention was particularly directed, is as follows:
"The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions."
- A question was raised as to what was meant by the words "When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate" (emphasis added). I do not for my part see any difficulty. The meaning of the observation is clear and the sentiment unexceptional. It is not being said it could not properly be said that a judge sitting in the (new) Court of Protection and exercising the statutory jurisdiction under the Mental Capacity Act 2005 is in some mysterious and undefined way entitled to disregard the statutory test in section 3. Certainly not. What is being said is that judges sitting elsewhere than in the Court of Protection and deciding cases where what is in issue is, for example, capacity to make a will, capacity to make a gift, capacity to enter into a contract, capacity to litigate or capacity to enter into marriage, can adopt the new definition if it is appropriate appropriate, that is, having regard to the existing principles of the common law. And since, as I have said, there is no relevant distinction between the test as formulated in Re MB and the test set out in section 3(1) of the Act, and since, as it were, the one merely encapsulates in the language of the Parliamentary draftsmen the principles hitherto expounded by the judges in the other, the invitation extended to the judges by the Code of Practice is entirely understandable and, indeed, appropriate.
- Before I leave Re MB and section 3(1) of the Act, there is one other point to be made. It will have been noticed that in Re C Thorpe J identified, as the second of three ingredients of the test, the ability or capacity to "believe" the relevant information, whereas that ingredient is seemingly missing both from the formulation of the test in Re MB and from section 3(1) of the Act. The answer to this seeming lack of correspondence between the tests in Re C and Re MB was provided by Mr Joseph O'Brien on behalf of KM. It is to be found towards the end of the passage which I quoted above from Butler-Sloss LJ's judgment in Re MB. If one does not "believe" a particular piece of information then one does not, in truth, "comprehend" or "understand" it, nor can it be said that one is able to "use" or "weigh" it. In other words, the specific requirement of belief is subsumed in the more general requirements of understanding and of ability to use and weigh information.
- Butler-Sloss LJ referred in this context to cases of "compulsive disorder or phobia." But the same obviously applies in cases of simple delusion. A striking example is provided by NHS Trust v T [2004] EWHC 1279 (Fam), (2004) 80 BMLR 184, a decision of Charles J at an earlier stage in the litigation which subsequently came before Bracewell J in NHS Trust v Miss T [2004] EWHC 2195 (Fam) (as to which see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [45]-[47]). Charles J held that an adult lacked capacity who believed (see para [61]) that her blood was "evil" and on that basis had refused consent to a blood transfusion because (see para [56]) "the less blood I've got the less evil there is in me." As Charles J said at para [61]:
"this assertion and belief of Ms T is a misconception of reality which can more readily be accepted to be, and on the present evidence should be accepted to be,
symptoms or evidence of incompetence."
- Because historically they have been closely connected with other branches of the law (in the one case the matrimonial law and in the other the criminal law) the tests of a vulnerable adult's capacity to consent to marry and to consent to sexual relations have been expressed in terms somewhat different from those set out in Re MB: see, respectively, Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968.
- This does not mean that the test in Re MB is irrelevant in these contexts. After all, what I have called the general theory is in principle as applicable in a situation where the question is whether X has the capacity to marry as it would be if the question was whether X has the capacity to litigate or the capacity to consent (or refuse consent) to medical treatment. It is simply that such a refined analysis is probably not necessary where the issue is as simple as the question whether someone has the capacity to marry or the capacity to consent to sexual relations: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [135]-[136], and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at paras [89]-[90].
- It was not suggested before me that either Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, or X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, was wrongly decided. The opportunity for further reflection which the present case has afforded me does not lead me to think that they were.
- When considering capacity to marry, the question is whether X has capacity to marry, not whether she has capacity to marry Y rather than Z. The question of capacity to marry has never been considered by reference to a person's ability to understand or evaluate the characteristics of some particular spouse or intended spouse: Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [83]-[85]. In my judgment, the same goes, and for much the same reasons, in relation to capacity to consent to sexual relations. The question is issue specific, both in the general sense and, as I have already pointed out, in the sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.
- A woman either has capacity, for example, to consent to 'normal' penetrative vaginal intercourse, or she does not. It is difficult to see how it can sensibly be said that she has capacity to consent to a particular sexual act with Y whilst at the same time lacking capacity to consent to precisely the same sexual act with Z. So capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character the sexual nature and character of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse: see X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84]. It does not depend upon an understanding of the consequences of sexual intercourse with a particular person. Put shortly, capacity to consent to sexual relations is issue specific; it is not person (partner) specific.
- I add only this. Mr Sachdeva correctly pointed out that there is no necessary requirement that the civil (family) law and criminal law should adopt the same test for capacity to consent to sexual relations, though plainly the civil law's test of consent cannot derogate from the protections afforded to the vulnerable by the criminal law. So it is at least possible to contemplate the civil law imposing a different and more demanding test of capacity. But, as Mr Sachdeva says, it adds clarity if the civil law and the criminal law do share the same test.
- Moreover, and of equal if not greater importance, there are sound reasons of policy why the civil law and the criminal law should in this respect be the same, why the law should, as it were, speak with one voice and why there should not be any inconsistency of approach as between the criminal law and the civil law. In this context both the criminal law and the civil law serve the same important function: to protect the vulnerable from abuse and exploitation (see further below). Viewed from this perspective, X either has capacity to consent to sexual intercourse or she does not. It cannot depend upon the forensic context in which the question arises, for otherwise, it might be thought, the law would be brought into disrepute.
- I remain of the view I expressed in X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [84], that the test of capacity to consent to sexual relations must for the purposes of the civil law be the same in its essentials as in the criminal law.
- Nor, as will be apparent, is there any conflict between the law as laid down in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, and the statutory test in section 3(1) of the Act. Quite apart from all other considerations, the Court of Protection, as section 27(1) of the Act makes clear, is not concerned with decision-making in relation to either marriage (or civil partnership) or sexual relations.
- To summarise:
i) Re MB (Medical Treatment) [1997] 2 FLR 426 sets out the test where the question is whether someone has capacity to consent to medical treatment.
ii) Re MB (Medical Treatment) [1997] 2 FLR 426 also applies where the question is whether someone has capacity to decide where and with whom to live and who to have contact with (and, indeed, whether someone has capacity to manage his financial affairs).
iii) Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, sets out the test where the question is whether someone has the capacity to litigate.
iv) Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, sets out the test where the question is whether someone has the capacity to marry.
v) X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, sets out the test where the question is whether someone has the capacity to consent to sexual relations.
Moreover, there is no relevant distinction between the test as formulated in Re MB and the test set out in section 3(1) of the Act.
- It follows that Dr Milne applied the correct legal tests.
- I have dealt with this in a little detail because, as we have seen, Dr Milne concluded, applying these tests, that MM does have capacity to consent to sexual relations although she does not have capacity to decide matters of contact. It was suggested during the course of argument that there was something inconsistent, indeed illogical, about this: as a matter of logic, it was suggested, a person must have the capacity to consent to contact with a potential sexual partner in order to have capacity to consent to sexual intercourse, because contact, however fleeting, is, in the nature of things, a necessary pre-requisite to sexual intercourse. It was further suggested that there are really only two alternatives: either MM does not possess capacity to consent to sexual intercourse, or she does have some capacity to determine contact with KM and has capacity to consent to sexual intercourse.
- I confess that I was myself at one stage puzzled by this. But Mr Sachdeva provided the answer. As always, the question of capacity is issue specific. As I observed in Sheffield City Council v E [2004] EWHC 2808 (Fam). [2005] Fam 326, at para [105], because questions of capacity are issue specific, capacity to marry is not the same as capacity to look after oneself. Someone may have the capacity to marry whilst lacking capacity to take care of her own person. In the same way, someone may have capacity to consent to sexual relations whilst lacking capacity to decide more complex questions about long-term relationships. There is, as Mr Sachdeva points out, no necessary dissonance between the lack of capacity to consent to contact and capacity to consent to sexual relations. The former is a potentially complex concept involving a range of considerations arising in the context of a potentially wide variety of situations, for example, from having a cup of tea with someone to going away with them for a long holiday, whilst the latter is often, and of its very nature, much less complex. MM may well understand what is involved in sexual intercourse with KM Dr Milne's opinion is that she does whilst being unable, for example, to appreciate and evaluate all the possible implications and risks for her of staying contact with KM: the risk, for example, that he will persuade her to leave her placement and go off with him and the consequential risks to her physical, mental and emotional well-being were she to do so.
- This is not of course to dispute that there is a connection between the two. For Mr Sachdeva also made the important point that if a person has capacity to consent to sexual relations but cannot consent to contact, the capacity to decide on sexual relations is a material factor in my judgment a highly material factor in the court's assessment of what is in the best interests of that person in terms of her contact with her sexual partner. And as Ms Roshi Amiraftabi correctly accepted on behalf of the local authority, MM's capacity to consent to sexual relations, and the exercise of that capacity (emphasis added), become relevant to the determination of best interests in relation to contact issues. They are factors to be weighed in the balancing exercise along with all other relevant factors. Mr Sachdeva, picking up on this point, comments that, ironically, although the local authority supports a general, rather than a person-specific, test of capacity to have sexual intercourse, and indeed accepts Dr Milne's evidence that MM does have such capacity, it is seemingly not making or proposing to make any arrangements for MM to exercise that capacity in private.
Capacity the facts
- The Official Solicitor accepts Dr Milne's evidence. So do I. Dr Milne's evidence was clear and convincing. It stands unchallenged, even if MM and KM do not accept it.
- In the light of Dr Milne's evidence I find that MM has the capacity to consent to sexual relations but that she lacks the capacity to litigate, to manage her finances, to decide where and with whom she should live, and to decide with whom she should have contact. MM also lacks the capacity to marry.
Best interests
- It is clear and again there is no need to refer to authority that the court exercises in relation to vulnerable adults a welfare jurisdiction akin to that which it exercises in relation to wards of court and other children. MM's welfare is the paramount consideration. The focus must be on MM's best interests, and this involves a welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, emotional and welfare considerations. Where, as will often be the case, the various factors engaged pull in opposite directions, the task of ascertaining where the individual's best interests truly lie will be assisted by preparation of a 'balance sheet' of the kind suggested by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at page 560. This will enable the judge, at the end of the day, to strike what Thorpe LJ referred to as "a balance between the sum of the certain and possible gains against the sum of the certain and possible losses."
Best interests the Convention
- The inherent jurisdiction must, of course, be exercised in a manner which is compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms.
- Article 8 of the Convention is central to the issues in this case. Subject to the exceptions in Article 8(2), including importantly for present purposes the exception of what is "necessary in a democratic society
for the protection of health
or for the protection of the rights and freedoms of others," Article 8 protects the right to "respect" for "private and family life." MM and KM may not be married but, in the sense in which these expressions are used in Article 8, they have hitherto enjoyed a family life together and each of them quite plainly also has a private life.
- So far as concerns private life I can conveniently start with what the European Court of Human Rights said in Pretty v United Kingdom (2003) 35 EHRR 1 at para [61] (citations omitted):
"As the court has had previous occasion to remark, the concept of "private life" is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees."
The Court stressed at para [65] that:
"The very essence of the Convention is respect for human dignity and human freedom."
- In Niemietz v Germany (1993) 16 EHRR 97 at para [29] the Court indicated that "private life" includes at least two elements. The first is the notion of "an "inner circle" in which the individual may live his own personal life as he chooses"; the second is "the right to establish and develop relationships with other human beings".
- The Strasbourg jurisprudence thus recognises that the ability to lead one's own personal life as one chooses, the ability to develop one's personality, indeed one's very psychological and moral integrity, are dependent upon being able to interact and develop relationships with other human beings and with the world at large.
- Niemietz v Germany shows that private life includes the right of a person to define the "inner circle" in which he chooses to live his life, including in particular the right to choose those with whom he does and those with whom he does not want to establish, develop or continue a relationship in short the right to decide who is to be included in or excluded from his "inner circle".
- Article 8's guarantee of respect for an individual's "private life" therefore embraces, in principle, both X's right to decide to establish and develop a relationship with Y (qualified, of course, by Y's right to decide that he does not wish to establish a relationship with X) and X's right to decide not to establish or continue a relationship with Z. Putting the same point somewhat differently, Article 8 thus protects two very different kinds of private life: both the private life lived privately and kept hidden from the outside world and also the private life lived in company with other human beings or shared with the outside world. (See generally in relation to this paragraph and what follows the discussions in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, and E (by her Litigation Friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913.)
- Now in the case of a competent adult, the personal autonomy which is inherent in Article 8 means that it is in principle for the individual to decide who is to be included in or excluded from the "inner circle." So if both X and Y are competent, it is for X to decide whether she wants a relationship with Y and for Y to decide whether he wants a relationship with X, and since neither can impose on the other, each in effect has a veto. But what if X lacks capacity? X may want to have a relationship with Y, and the wish may be mutual, but others concerned for X's welfare may take the view that it is X's best interests that she does not have a relationship with Y. X may have strongly expressed wishes and feelings which conflict with what her carers believe to be in her best interests. How is such a difference of view to be adjusted? Y's Article 8 rights have to be assessed and weighed in the balance against X's Article 8 rights and because the principle which, consistently with the Convention, animates the court's inherent jurisdiction is the need to protect and further X's best interests, then in the final analysis the question of whether X should have a relationship with Y must be determined by reference to X's best interests. The court on her behalf, as it were, decides, and by reference to her best interests, how X's right of choice under Article 8 is to be exercised.
- In domestic law the governing consideration is the welfare of the child or vulnerable adult. So it is under the Convention. Strasbourg jurisprudence has long recognised that, in the final analysis, parental rights have to give way to the child's that the case may be one of sufficiently pressing necessity as to justify, in the interests of the child's welfare, the supercession and assumption by the State of parental rights and responsibilities. The answer can be no different where the child, although now an adult, remains unemancipated because mentally incapacitated. Parental rights and responsibilities, and the rights and responsibilities of partners or other carers, have in the final analysis to give way to the best interests of a vulnerable adult.
- As Sedley LJ said in In re F (Adult: Court's Jurisdiction) [2001] Fam 38 at page 57 (a case involving an incapacitated adult child):
"The family life for which article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare."
- The Strasbourg court has long recognised that the "respect" for private and family life guaranteed by Article 8 may impose on the State not merely the duty to abstain from inappropriate interference but also, in some cases, certain positive duties. The State may be obliged to take positive action to prevent or stop another individual from interfering with someone's private life; the State may be under an obligation to intervene in the relationship between purely private individuals in order to prevent 'private' violations of rights protected by the Convention: see Botta v Italy (1998) 26 EHRR 241. Thus the State, in the form of the local authority, may not merely have the power but may also be under a positive obligation to intervene, even at the risk of detriment to Y's private life and in such a way as interferes with the family life which Y shares with X, if such intervention is necessary to ensure respect for X's rights under Article 8. And where X is a child or a vulnerable adult the State, in the form of the High Court, has a positive obligation to act in such a way as to ensure respect for X's rights.
- How is the propriety of the State's interference in such a case to be assessed and evaluated? The answer is provided by two judgments of Hale LJ which although they concerned care proceedings in relation to children brought under Part IV of the Children Act 1989 are, in my judgment, equally apposite when the court is exercising its inherent jurisdiction, either its inherent jurisdiction in relation to children or (as here) its inherent jurisdiction in relation to vulnerable adults.
- In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 at para [33] Hale LJ said:
"under Art 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be 'necessary in a democratic society'."
She continued at para [34]:
"There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."
She reiterated that in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, adding at para [28] important observations as to the State's positive obligations:
"Proportionality, therefore, is the key. It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a response to the risk presented, a supervision order can be made to work, as indeed the framers of the Children Act 1989 always hoped that it would be made to work. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully."
- Likewise highly relevant in this context are the penetrating insights of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para [50]:
"Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:
'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'
There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."
- He continued at para [51]:
"Only exceptionally should the state intervene with compulsive powers
Such an approach is clearly consistent with Article 8
Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment, Art 8(2)
contemplate[s] the exceptional rather than the commonplace."
- Now all that was said in the context of a consideration of the concept of "significant harm" as that phrase is used in section 31(2) of the Children Act 1989, and I recognise of course (see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at paras [45]-[46]) that there is no corresponding threshold for the exercise of the inherent jurisdiction in relation to vulnerable adults. But as Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, itself shows, the inherent jurisdiction is animated by the principles expounded by Lord Templeman and Lord Oliver of Aylmerton in Re KD. As I said in Re S at para [48]:
"I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in Re KD
, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution however benign and enlightened the institution may be, and however well integrated into the community and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State."
- We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State typically, as here, in the guise of a local authority is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden not the legal burden but the practical and evidential burden of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.
- At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council [2002] 1 FLR 217 at para [43].
- The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at paras [90]-[92], and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [27]. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444, at para [8].
- There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm the risk of future abuse or future exploitation so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk.
- A great judge once said, "all life is an experiment," adding that "every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge" (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good in particular to achieve the vital good of the elderly or vulnerable person's happiness. What good is it making someone safer if it merely makes them miserable?
- One of the most important factors to be taken into account is the vulnerable adult's wishes and feelings. The fact that MM lacks the relevant capacity does not mean that her wishes and feelings simply fall out of account. The court must nonetheless pay close regard, in particular, to her undoubted wish to have an ongoing relationship including a sexual relationship with KM. If it is elementary that the inherent jurisdiction is exercised by reference to the vulnerable adult's best interests, it is equally elementary that in determining where such an adult's best interests truly lie it is necessary, just as in the case of a child, to have regard to his wishes and feelings insofar as he is able to express them: see section 4(6)(a) of the Mental Capacity Act 2005 and compare section 1(3) of the Children Act 1989.
- MM is more than capable of expressing her wishes and feelings, as her oral evidence and the manner in which she gave it so vividly demonstrated.
- In this context the observations of Hale LJ in Regina (Wilkinson) v Broadmoor Special Hospital Authority and others [2001] EWCA Civ 1545, [2002] 1 WLR 419, at para [64], to which Mr O'Brien rightly drew attention are particularly apposite:
"The wishes and feelings of the incapacitated person will be an important element in determining what is, or is not, in his best interests. Where he is actively opposed to a course of action, the benefits which it holds for him will have to be carefully weighed against the disadvantages of going against his wishes, especially if force is required to do this."
- And there is also the important point recognised by Thorpe J in In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 at page 292, that "the further capacity is reduced, the lighter autonomy weighs." The converse is also true. The nearer to the borderline the particular adult, even if she falls on the wrong side of the line, the more weight must in principle be attached to her wishes and feelings, because the greater the distress, the humiliation and indeed it may even be the anger she is likely to feel the better she is able to appreciate that others are taking on her behalf decisions about matters which vitally affect her matters, it may be, as here, of an intensely private and personal nature.
- That brings me to what is in many ways the single most important and difficult issue in this case: the question of MM's relationship specifically her sexual relationship with KM.
- Pretty v United Kingdom (2003) 35 EHRR 1 demonstrates, as we have seen, that the private life protected by Article 8 encompasses choice about personal and sexual relationships with others and that Article 8 requires respect for an individual's sexual activities. Moreover, the Strasbourg jurisprudence recognises that sexual activity is "a most intimate aspect of private life" (Dudgeon v United Kingdom (1981) 4 EHRR 149 at para [52]) and that it involves "fundamental values and essential aspects of private life" (X and Y v The Netherlands (1985) 8 EHRR 235 at para [27]). Accordingly (Dudgeon v United Kingdom (1981) 4 EHRR 149 at para [52]):
"there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of Article 8(2)."
- As against this, of course, unwanted or inappropriate sexual attentions will involve an interference with the physical and moral integrity which is itself protected by Article 8: see X and Y v The Netherlands (1985) 8 EHRR 235 at para [22]. So the State is perfectly justified in taking appropriate steps against, including the imposition of criminal sanctions on, those committing sexual assaults.
- But consistently with Article 8, the State is equally entitled to control even seemingly consensual sexual acts in private where it is necessary to
"safeguard
against exploitation and corruption
those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence."
See Dudgeon v United Kingdom (1981) 4 EHRR 149 at para [49], where the Strasbourg court adopted the well-known language in para 13 of the 1957 Report of the Departmental Committee on Homosexual Offences and Prostitution chaired by Sir John Wolfenden (Cmnd 247).
- Indeed, as the decision of the Strasbourg court in X and Y v The Netherlands (1985) 8 EHRR 235 demonstrates, the State may, by virtue of Article 8, be under a positive duty to take such steps. In that case, where a mentally handicapped young woman had been sexually assaulted, the State was held to be in breach of its positive obligations under Article 8, having failed in its duty to provide an effective criminal remedy to ensure deterrence in relation to sexual assault.
- In this connection, Mr O'Brien helpfully took me to certain highly pertinent passages in Rook & Ward on Sexual Offences Law and Practice, ed 3, 2004. At para 7.03 the learned authors observe that:
"Although there is a clear need to protect the mentally disordered from sexual abuse, it is important that the law is not drawn so restrictively that it denies the mentally disordered their right to engage in sexual relationships
There is in this area an inherent potential conflict between legislative paternalism and sexual freedom; what is clear is that there is a delicate balance to be struck between undue state interference in an individual's sexual life and the state's responsibility to protect an individual from exploitation and abuse."
I entirely agree. The learned authors proceed, in further passages in paras 7.03, 7.04, 7.12 and 7.14 which there is no need for me to set out, to suggest that the appropriate role of the law here is to protect the vulnerable, who as such may become easy targets for abuse or who may find themselves in exploitative contexts, from exploitative sexual activity. Again I agree. In this particular aspect, as more generally, the inherent jurisdiction exists and is to be used in this type of case to protect the vulnerable from abuse and exploitation and from relationships which are abusive or exploitative.
- There is in fact a vitally important social, ethical and indeed moral principle at stake here. As Glanville Williams put it in his Textbook of Criminal Law, ed 2, at para 25.12:
"it is necessary
not to forbid sexual expression to women of low intelligence. Every offence has the effect of diminishing the liberty of the defendant, but when a person is convicted on account of a consensual activity the practical result is to restrict not only his liberty but that of the person with whom he acts."
I myself made much the same point in Sheffield City Council v E [2004] EWHC 2808 (Fam). [2005] Fam 326, at para [144]:
"There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled."
Best interests residence
- As Ms Amiraftabi correctly observes, the court is faced with a stark choice between two alternative proposals: MM says that she should live with KM; the local authority, supported by the Official Solicitor, says that she should continue to live in the independent supported living placement where she has been since 19 March 2007. The local authority submits that this is the only way in which MM's best interests can be met.
- The local authority's case can be summarised as follows:
i) MM is, as the evidence of Dr Milne and Mr Fowler demonstrates, a highly vulnerable individual who requires consistent social, medical and psychiatric support to meet her needs.
ii) The relationship between MM and KM has been of a volatile and at times violent nature, which has caused emotional and at time physical harm to MM. Ms Amiraftabi helpfully attached to her skeleton argument a schedule listing some 23 occasions between August 1997 and February 2006 in relation to which there are records of domestic discord, often seemingly involving domestic violence, some of it quite serious and sufficient to leave bruising or other visible marks on MM's body. In the worst, in March 2000, KM stabbed MM in the leg. He tried in the witness box before me to pass this off as an accident; MM, he said, had slipped against a knife he was pointing. The fact, however, is that he was convicted of wounding her and received a sentence of four months' imprisonment.
iii) When living with KM, MM's compliance with medication and support services has been compromised and has, indeed, broken down, resulting in a deterioration in her mental health and, on occasions, the need for hospitalisation. In the view of the local authority this has been either at the instigation or under the influence of KM or because of his hostile and abusive behaviour towards support staff. Again, Ms Amiraftabi has helpfully provided a schedule summarising the numerous problems there have been during the period from September 1997 to July 2007.
iv) Because of the volatile relationship between MM and KM causing disturbance, or the conduct of KM towards others, MM has frequently found herself forced to leave her accommodation, resulting in frequent periods of homelessness. This in turn has resulted in further neglect of MM's physical and psychiatric needs and prevented support agencies from monitoring MM's well being. Moreover, KM has been unable to secure accommodation for himself since the commencement of these proceedings and has had continued periods of homelessness. He cannot currently provide secure accommodation for himself and MM, and no proposals have been put before the court, other than KM's suggestion that the local authority should provide them with a council house.
v) Assessment of KM, and his conduct during the course of the proceedings, demonstrate that he has been unable to accept responsibility for his conduct, that he has limited insight into MM's needs, and that he is unable to prioritise those needs, to act consistently with her needs and in her best interests or to co-operate with support agencies to ensure that they are met. The local authority points to such matters as:
a) KM's denial of ever having been violent to MM, when he has in fact been convicted of assaulting her;
b) his telling MM's brother (convicted of sexual offences against her) of her contact details at the W unit, resulting in distress to her when her brother telephoned her;
c) his undermining of MM's placement at the W unit and encouragement of MM to leave the W unit in circumstances where no provision had been for accommodation, medication or support agencies to be involved, as a result of which MM's needs were neglected;
d) his undermining of the adult family placement, including his attending there on two occasions in breach of the injunctions which had been imposed;
e) his hostile and antagonistic behaviour (including threats to kill) towards professionals, including MM's allocated social worker; and
f) his failure to comply with contact arrangements.
- All in all, says the local authority, pointing in particular to the evidence of Dr Milne and Mr Fowler, there is substantial evidence that MM's physical, emotional and mental health has suffered significantly whilst living with KM and that she will be at risk of suffering such harm in future if she lives with him again.
- MM and KM disagree. They want to live together on their own. KM's view is that he and MM can and should live together, in a flat. He acknowledged that they would require the assistance of the local authority in finding appropriate housing for them and that MM would need help from CPN services. But his belief is that he would not need help or assistance in looking after MM as he is able to manage her competently. The local authority points to this belief on KM's part as indicative of his limited insight into MM's difficulties and his inability to prioritise her needs.
- The local authority accepts that it is MM's wish to live with KM and not as proposed by the local authority. It submits, however, that the court should 'override' her wishes. In the first place, the local authority relies upon the clear support for its position provided by both Dr Milne and Mr Fowler. Second, the local authority asserts that MM's wishes, though relevant, have to be weighed with all the other factors relevant to her welfare principally the risks it says MM will be exposed to if she again lives with KM and that the balance comes down in favour of overriding her wishes. Finally, the local authority points to the fact that whilst expressing the wish to live with KM, MM has in fact been accepting of and, absent KM's influence, compliant with its plans.
- In summary the local authority submits that its proposal is the only safe, viable, plan for MM's accommodation and care, preventing a relapse in her mental illness and protecting her from abuse and exploitation. Her needs for consistent social support, housing and psychiatric intervention are best met when she is accommodated by the local authority. Mr Fowler is of the view that when accommodated and supported by the local authority, MM's physical and mental health, and indeed her presentation generally, have improved and been stabilised. The local authority, it says, has shown itself committed to meeting her needs. And no-one, other than KM and MM themselves, and neither of the experts, is suggesting that MM should live either alone or with KM.
- Subject to his important concerns in relation to contact, the Official Solicitor agrees with the local authority. He sees the present placement as suitable and believes it to be going well. He is content to accept Mr Fowler's recommendations.
- For my part, and subject to one important indeed vital qualification, I agree with the local authority. For the reasons given by Dr Milne and Mr Fowler, I agree that the balance comes down, and subject only to the qualification I have mentioned comes down fairly heavily, on the side of the local authority.
- I stress that I have not been conducting a detailed fact-finding hearing in relation to past events, and it should not be assumed that I have found the facts to be in every respect as they are set out in Mr Amiraftabi's two very helpful schedules. I have not. But whatever nuances and qualifications there may be, and even if it were to be shown that some of the events referred to are wrongly described or should be seen in a less damaging light, the overall picture is clear enough and it is a very worrying picture of a vulnerable woman whose physical and mental health has on numerous occasions been significantly prejudiced because of the lifestyle which, under KM's tutelage, guidance and direction, she has chosen to live. It is a lifestyle from which, in her own best interests, she needs to be rescued.
- That is, as we have seen, the very object of what the local authority is proposing. And the local authority's proposals, endorsed as they are both by Mr Fowler and by the Official Solicitor, seem to me to further MM's best interests and to do so in a way which is, subject to the qualification I have mentioned, proportionate in all the circumstances. The independent supported living placement found by the local authority and where MM is now living is, in principle, admirably suited to meeting her needs, and doing so, moreover, in what is, having regard to what is feasible and practicable, the way most suited to meeting those needs.
- The qualification to all this and it is, I repeat, absolutely fundamental derives from the fact that the plan being propounded by the local authority interferes, in my judgment to a quite unacceptable extent, with the long-standing relationship between MM and KM. The local authority's plan is that MM should live, without KM, in a place which he is forbidden to visit. And although the local authority has, very recently, come to accept that their contact should no longer be supervised, it is not prepared to do anything to enable MM and KM to continue their sexual relationship. For all the reasons given by the Official Solicitor, that plan involves what is, in my judgment, a wholly disproportionate interference by the local authority both with the family life which exists as between MM and KM and, in any event, with MM's private life and, indeed, with KM's private life.
- In my judgment, any judicial approval of the local authority's plan in relation to MM's future living arrangements has to be dependent upon contact arrangements which show proper respect, as the local authority's current contact proposals in my judgment do not, for MM's and KM's family and private life.
- It is therefore to the fundamentally important question of contact that I finally turn.
Best interests contact
- The local authority's final proposal, in line with Mr Fowler's most recent report, was that contact between MM and KM should continue to take place once a week but for a period of up to 4 hours and unsupervised. The local authority believed that the following conditions were necessary:
i) KM must not be under the influence of alcohol;
ii) KM must not be verbally or physically threatening towards MM or staff;
iii) there should be a defined meeting point at which contact would commence and terminate;
iv) contact should take place within the area of the local authority;
v) KM should not attend at MM's residential placement; and
vi) the contact should be on a trial basis, to be reviewed after 6 weeks.
- Seeking to meet the Official Solicitor's concerns, the local authority accepted that:
i) MM and KM have been involved in a relationship for a number of years and have co-habited for periods of time;
ii) there is a level of interdependence between MM and KM;
iii) MM has an emotional bond with KM;
iv) regular contact with KM is beneficial to MM's mental well being and something she looks forward to;
v) MM would wish to continue her relationship with KM, including a sexual relationship;
vi) the local authority's initial proposals for supervised contact would effectively negate MM's ability to exercise her capacity to engage in sexual relations with KM, which would impact upon the nature of their relationship;
vii) MM's and KM's Article 8 rights are engaged.
- Nonetheless, the local authority submitted that some regulation of contact was justified and proportionate, and that caution continued to be required for the following reasons:
i) KM is not supportive of the local authority's plans. There is evidence that in the past he has used unsupervised contact to undermine MM's placements, and (in the light of Mr Fowler's assessment) that he will continue to do so. Such conduct is likely to result in disruption of placements, causing MM unnecessary distress and anxiety and risk of psychiatric deterioration.
ii) MM failed to return to the W unit after unsupervised contact with KM, and was without proper provision for her physical and psychiatric needs. The result was deterioration in MM's physical and psychiatric well being.
iii) During observed contact sessions KM has made inappropriate comments likely to cause distress to MM.
iv) KM has not demonstrated consistency or commitment to contact.
The local authority says that the priority for the court must be the protection of MM's physical and mental health. The expert evidence is that she lacks capacity to make decisions, which would enable her to protect herself. The evidence supports the view that wholly unsupervised and unregulated contact would expose MM to the risk of harm from which, in the circumstances, the court should protect her.
- I might add that much the same arguments were deployed at an earlier stage in support of the local authority's then contention based on Mr Fowler's initial advice that contact, having been reduced from once a week to once a month, should be maintained at that level.
- The Official Solicitor was rightly questioning of the suggestion that the very limited contact then being recommended by Mr Fowler was enough, given the longevity of the relationship between MM and KM. He questioned whether one supervised two-hour contact per month could truly be said to be in MM's best interests. He suggested that it would constitute a disproportionate interference with her rights to private and family life within Article 8. Furthermore, he said, it was difficult to see how such limited contact would permit the proper exercise by MM of her right, assuming she had capacity, to have sexual relations. So on that ground also it was difficult to see how such limited contact could be in MM's best interests.
- I entirely agree with that analysis.
- Although the local authority's final position in relation to contact had moved some way towards meeting his concerns, the Official Solicitor remained unconvinced. His fundamental concern remained, that the local authority's plan involved a disproportionate interference with MM's right to respect for her private and family life, in particular that it was denying her an ongoing sexual relationship with KM. But he also had the specific concerns to which I have already drawn attention in paragraph [54], commenting in addition that the order I had made on 10 May 2007 requiring the local authority to prepare a final care plan had not been complied with.
- The Official Solicitor asked rhetorically what positive steps the local authority proposed to take to facilitate MM's ability to have an opportunity to have sexual intercourse with KM. He emphasised how important it is that the final order on contact reflects the longevity of the relationship between MM and KM so that it is truly in MM's best interests and does not interfere disproportionately with her right to a private and family life. Through Mr Sachdeva he observed that it was testament to the strength of MM's relationship with KM, and its importance to her, that it had survived the artificiality of the arrangements to which it had been subjected and the very limited contact which had been permitted for much of the recent past. Furthermore, unless the arrangements for contact are modified sensibly so as to meet MM's reasonable wishes and feelings the very constraints imposed upon her may put her placement under such strain as to induce her to 'vote with her feet.'
- The local authority's original thinking was, in my judgment, deficient in three respects, though in saying this I appreciate that it has throughout sought to act in accordance with Mr Fowler's advice.
- In the first place, 'maintenance' contact once a month involved, in my assessment, a wholly disproportionate and unjustified interference with the long-standing and mutually desired relationship between MM and KM. It placed too much weight and emphasis on the need to protect MM from various risks and far too little weight on the emotional and other benefits that MM derives from the relationship. It failed to strike the balance proportionately, fairly and, dare I say so, even humanely between the proper need to minimise the risks to MM's physical and mental health and safety and the equally pressing need to further her emotional welfare her happiness. Even leaving on one side altogether what MM and KM said in the witness box and of course I do not there is much in Dr Milne's and Mr Fowler's reports and in their evidence which goes to show not merely how important the relationship is to MM but also how in some important respects it is actually very beneficial to her.
- In the event, both Mr Fowler and the local authority now accept that contact should be both more frequent weekly rather than monthly and for longer periods four hours rather than two hours. That, I have to say, seems to me to be the minimum that is acceptable. Neither Dr Milne nor Mr Fowler nor the local authority is prepared to go so far as to say and I can well understand why that her relationship with KM is so damaging to MM, so fraught with danger and so contrary to her welfare, that it should be terminated altogether. Plainly, in my judgment, it should not. But after all that has gone before, and given the duration and intensity of the relationship, to reduce it to 'maintenance' contact once a month is not merely wholly disproportionate to what the circumstances imperatively require but so drastic as to be, in effect if not in intention, almost cruel. What is now proposed is, as I have said, the minimum that is acceptable. Its adequacy will need to be kept under review.
- Second, and for much the same reasons, the proposal until very recently that all contact should be supervised struck a wholly inappropriate and disproportionate balance. It was, if I may say so, a revealing example of the dangers of putting a vulnerable adult's supposed safety before her happiness. I accept that there are risks in unsupervised contact. Of course there are. But one has, as I have said, to evaluate these risks in a pragmatic, common sense and robust way. The risks which attach to unsupervised contact between MM and KM are, in my judgment, manageable and acceptable. They are, moreover, risks which in my judgment need to be run if MM's welfare in all its aspects is truly to be achieved and if there is not to be a disproportionate interference with her rights under Article 8.
- Of course, Article 8 protects MM's right to respect for her physical and mental health and safety that is a vital aspect of the "physical and psychological integrity" which the Strasbourg court referred to in Pretty v United Kingdom (2003) 35 EHRR 1 but it also protects her right to an ongoing relationship with KM. And those conflicting aspects of her rights have to be evaluated and weighed by reference to the Strasbourg principles of necessity and proportionality. In my judgment, the risks to MM's physical and mental health and safety are not such as to make it necessary (in the Strasbourg sense) for her contact with KM to be supervised. On the contrary, to impose a requirement of supervision is to interfere disproportionately with MM's right to an ongoing relationship with KM.
- Thirdly, and the implications of this remain very much in contention, there is the fundamentally important fact of the longstanding sexual relationship between MM and KM. The local authority's plan makes no provision for facilitating the sexual relationship with KM which MM desires and in relation to which Dr Milne agrees, and I find, that she has capacity.
- Given the importance rightly attached by the Strasbourg jurisprudence to this most "fundamental" and "essential" aspect of the private life respect for which is mandated by Article 8, any public body which proposes to interfere with the sexual life of someone who, like MM, has capacity faces a heavy burden. "Particularly serious reasons" must exist. Indeed, where the relationship has lasted as long as this one has, especially pressing reasons must surely be shown to exist. In the present case, in my judgment, they do not.
- There is, in my judgment, no demonstrated justification for preventing MM continuing her sexual relationship with KM and no proper basis for putting obstacles in the way. The local authority, to repeat, is not prepared to say that MM's relationship with KM should be terminated altogether, and it accepts, as it has to in the light of Dr Milne's evidence, that MM has capacity to decide for herself whether or not to continue her sexual relationship with KM. Yet it is seemingly not willing to lift a finger to facilitate this aspect of their relationship.
- Ms Amiraftabi points out that the local authority is under no statutory or other obligation to provide disadvantaged residents with access to facilities a bed, or a hotel room which will enable them to enjoy, as otherwise they might not be able to enjoy, a sexual relationship. Why, she asks rhetorically, should the local authority be required to provide to this particular couple, and at public expense, facilities which others also wishing to have a sexual relationship may not have?
- The answer provided by Mr Sachdeva is simple and compelling. It is, he says, because it is the act of the local authority in putting MM in a placement where KM is not allowed to join her, that indeed he is prohibited from even visiting, which is creating the state of affairs which gives rise to the difficulty, which gives rise to the very problem whose alleviation is in issue. MM is not saying that the local authority is, as such, under an obligation to provide her with facilities to enable her to continue her sexual relationship with KM. She would be perfectly willing and able to make her own arrangements if left to her own devices. But if the local authority seeks to interfere in indeed, control her life by saying where she must live, by placing her on her own somewhere where KM is not even allowed to visit her, and by controlling KM's access to her, then, says Mr Sachdeva, the situation is very different. The local authority is by its own acts creating a situation where, if a breach of Article 8 is to be avoided, the local authority must take certain positive steps specifically, steps to enable MM to continue, in an appropriate and dignified way, her sexual relationship with KM.
- Mr Sachdeva points to R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396 (see especially at paras [47]-[48], [53], [67], [77] and [92]), as providing support for the proposition that where a public authority is by its own acts bringing about the state of affairs or creating or imposing on an individual the regime which results in a breach of the Convention, than the authority must either desist from what it is doing or take such additional (positive) steps as are necessary to ensure that there is no breach. Now that was a case under Article 3, where the duty on the public authority in that case the Secretary of State was absolute, whereas in the present case it is Article 8 which is engaged, so the duty is modulated by the principle of proportionality. But the general principle, in my judgment, remains the same. If the local authority seeks to impose on MM a regime which in fact involves a breach of her Article 8 rights and that, says Mr Sachdeva and I agree, is the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Article 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM's life is, he submits, and I agree, disproportionate. And in my judgment it involves a breach of her rights under Article 8.
- I agree with Mr Sachdeva's analysis and with his characterisation of the local authority's proposals as involving a breach of Article 8. The local authority, in my judgment, has a choice the choice correctly identified by Mr Sachdeva.
- I should add that the local authority cannot in this connection seek to avoid its positive obligations by seeking to toll the bell of scarce resources. As Mr Sachdeva correctly submitted, the additional financial burden which this may impose on the local authority is comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely fiscal considerations.
- In the first instance it is for the local authority to prepare a care plan spelling out in appropriate detail and precision what it proposes to do in order to modify the current arrangements in such a way as to avoid a breach of Article 8; specifically, if it wishes to pursue its plan for MM to remain at her current placement, what it proposes to do in order to facilitate her sexual relationship with KM. The care plan can then be considered by the court. The court cannot be compelled to accept the local authority's plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not is forbidden by section 6 of the Human Rights Act 1998 to endorse a plan which in its view involves a breach of Article 8.
Conclusions
- I shall make final declarations in relation to capacity, including a declaration that MM does have capacity to consent to sexual relations. I shall make interim declarations and orders in relation to MM's placement so that it can continue, at least for the time being, pending consideration of the local authority's care plan. I shall also, and again on an interim basis, make declarations and orders providing for contact in accordance with the local authority's final proposals but modified (as to telephone contact and geographical location) in accordance with the Official Solicitor's observations. I shall direct that the local authority is to file a care plan and evidence in support setting out its final proposals in relation to both contact and the facilitation of MM's sexual relationship with KM. I shall direct that the matter is to be restored before me for further consideration of the care plan on a date in October 2007 to be fixed by counsel's clerks in consultation with my clerk.
- I shall invite counsel to draft an appropriate order to give effect to this judgment.
