A Local Authority -v- SE and Others [2021] EWCOP 44

This matter involved an application made by the Local Authority (LA) for a series of orders in respect of the Protected Party (P) for the Court to the following decisions:

1. Declaration under S.15 of the Mental Capacity Act 2005 (MCA) that P lacks capacity to conduct these proceedings, and to make decisions about her residence, care, contact with others and finances.
2. Determine the disputed facts.
3. Make decisions under s.16 in relation to P’s residence, care and contact with her family. Specifically, the court will be invited to approve the arrangements set out in the final care plan which give rise to a deprivation of P's liberty;
4. Displace P’s Father as P's nearest relative pursuant to s.29(3)e Mental Health Act 1983 (MHA), on the basis that he is not a suitable person to act as such.

By way of background, P was an 18 year old who resided in supported living as a result of being detained under S.3 MHA from June 2016 to August 2020 with a diagnosis of Reactive Attachment Disorder. She was discharged by hospital management and thereafter her detention was upheld by a Mental Health Tribunal. On 5 October 2020 P was moved to her current placement (Placement A).

In making their decision regarding capacity, Justice Lieven considered the Psychiatric Report of Dr O’Donovan as well as the cases of Cheshire West and Chester Council -v- PEK [2019] EWCOP57 and Wakefield MDC -v- DN and MN [2019] EWHC 2306. Ultimately Justice Lieven accepted the evidence of the medical expert that P did not have capacity to make decisions about her residence, care, contact with others and finances.

In terms of P’s best interests, Justice Lieven had 3 areas to consider, care and residence, contact and social media. In respect of care and residence, Justice Lieven considered information provided by P to her and the Official Solicitors representatives regarding her preference. The Judge also considered information provided by P’s parents, however, given previous evidence provided regarding the inappropriate behaviour of P’s parents, Justice Lieven held that they had no insight into P’s needs and held that P should remain at Placement A, depriving her of her liberty.

In respect of contact, the Judge considered P’s wishes to have contact with her siblings but not her parents. Justice Lieven considered the evidence of Dr O’Donovan (who raised speculative concerns) however held that it was appropriate for P to have contact with her siblings on the basis that P’s parents were not present.

Finally, in relation to social media, Justice Lieven followed the recommendations of Dr O’Donovan that P had capacity to make decisions in respect of social media.

In relation to the Nearest Relative Application, it was clear from the evidence previously provided that P’s parents were not suitable to be her nearest relative and as such, P’s parents were displaced under S.29(3)(e) of MCA.

The full judgement can be read here

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