London Borough of Southwark v P (by her litigation friend, the Official Solicitor) and AA and South London and Maudsley NHS Foundation Trust [2021] EWCOP 46

Main Issue

In this matter Lieven J was tasked with considering whether to discharge P’s mother, AA, as a party from the Court of Protection proceedings. A balancing act was addressed regarding P’s best interests and AA’s rights as a mother to remain involved in proceedings.

Background

P, at the time of the handing down of the judgment, was 19 years old. This would prove to be a crucial factor when reaching the decision. P suffers from cerebral palsy, atypical anorexia, PTSD and selective mutism. When P was 16 years old and living at home she was made subject to a child protection plan under the category of neglect.

During the course of carrying out assessments it came to light that P had been sexually abused by a visitor to the family home. P’s condition continued to deteriorate and she was admitted to a paediatric ward.

A declaration was made at the first directions hearing on 25 June 2019 that P lacked capacity to conduct proceedings and make decisions as to her residence, care and contact. It was ordered that P was immediately removed from the family home and direct contact between P and AA be supervised and limited.

In October 2020 P revealed for the first time that she was subject to emotional abuse by AA in the form of WhatsApp messages. She also disclosed that AA was aware of the abuse that P had been subjected to but had taken no action. She further alleged that she had been physically and sexually abused by AA’s new partner and father to her half-sister.

It was at this point that P changed her wishes and indicated that she no longer wished to live at home or have any contact with AA. A hearing took place on 3 November 2020 and an order was made that AA should be discharged as a party to proceedings and that all contact between AA and P should cease. This order was successfully appealed to the Court of Appeal.

Decision

A further application has since been made to discharge AA from the Court of Protection proceedings. P made her wishes known that she no longer wants contact with AA and that she would not be able to participate with proceedings if AA remained a party. AA maintained that she wished to continue to be a party to the proceedings and wishes to be involved and give evidence as to what she considers to be P’s best interests.

In considering the correct approach to be taken, it was considered that the process was to be governed by the MCA and not the Children’s Act given P reaching majority. As such, P’s interests must take precedence over AA’s where a conflict occurs.

The full judgement can be read here

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