This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court
Case No. 12367003
IN THE COURT OF PROTECTION    

Birmingham Civil Justice Centre
The Priory Courts
Bull Street
Birmingham

7th April 2014

Before

HIS HONOUR JUDGE CARDINAL

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A Local Authority
(Applicant)

-v-

B
(a protected person acting by her litigation friend the OFFICIAL SOLICITOR)

-v-

F

-v-

G
(Respondents)

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Transcribed from a digital audio recording by
J L Harpham Ltd
Official Court Reporters and Transcribers
55 Queen Street
Sheffield S1 2DX
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APPEARANCES:

For the Applicant: MS CAVANAGH

For the First Respondent: MS LATTIMER

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JUDGMENT 
7th April 2014

	A Local Authority -v- B

	JUDGMENT

	JUDGE CARDINAL:

1.		The life of B, who is a young woman of 18 years of age, has been much litigated over.  This is the second time that I have had to deal with her future in a short period of time, the last occasion being the 21st March, when I made a Hadkinson Order with regard to the father.
2.		Her life story is a very sad one.  Social Services were involved with her shortly after her birth, and she was made the subject of a Supervision Order.  In due course her parents separated and litigated over her contact arrangements.  In 2005 she went for contact purposes to see her father in Scotland, and she was retained by him, making allegations against Mother’s partner.  However, he grew unable to care for her and asked his local authority for assistance.  In due course there was an occasion when he was charged with assaulting her.  It was as a result of that that she was placed in foster care, although I note with regard to that assault, that even now and quite inaccurately, she blames herself for the assault that took place.
3.		Thereafter, she remained in local authority care and was first placed in Scotland and then with the local authority with which I am now dealing.
4.		In 2011, the local authority was obliged to seek an injunction against the father, prohibiting his contact with B.  It is said that subsequently there were a large number of breaches of that injunction.  Matters took a turn for the worse, because there came an occasion in October 2010 when the father, in concert with a friend who purported to be his McKenzie Friend, abducted B.  Separate proceedings were taken then against G, the paternal grandmother.  Indeed, I am told within these proceedings that she is still involved in a way adverse, the local authority says, to B’ interests, and only next week I have an application to deal with for her committal.
5.		When I first came to hear this case, there was an outstanding warrant against the father; indeed there still is, and he is subject to a twelve-month prison sentence imposed by another Judge.  He has not served that sentence and remains outside of the jurisdiction of England and Wales.  Indeed, as I quoted in my Judgment in the Hadkinson application, he has written to the Court that he has no intention of returning to this jurisdiction, being aware that he would be arrested by the Tipstaff.
6.		What, then, of B?  She suffers from a lack of capacity owing to an attachment disorder and mild learning difficulties, as diagnosed in the reports I have read of Dr. Halstead.  Although the father argues that she does not suffer from a lack of litigation capacity, and that she can make decisions as to her residence, contact, care, etc., he has adduced no evidence to that effect and been quite unable in written form to challenge what Dr. Halstead has to say.  I note that B exhibits from time to time difficult behaviours and that she has problems in controlling her temper on occasions.
7.		The local authority began its Court of Protection application on the 9th August of last year, and seeks that B should reside in her present care home accommodation in its county.  She is, they say, reasonably settled where she is and relates well to the staff.  I note that she continues regularly to see her mother, her mother’s partner and her two half-siblings, and she tells me that that is “alright” and that she wants that arrangement to continue.
8.		Sadly, it seems that the father and the paternal grandmother, G, have done anything but assist B in settling.  Both seem to have been oppositional throughout.  The father has failed to address the issues before this Court, save to file written documents containing biting and inaccurate criticism of the local authority in general, of the social worker, Miss Y in particular and even the local authority’s counsel, Ms. Cavanagh.  The father has continued even to be difficult over the medication with which B has been prescribed, and I have seen evidence of telephone calls in which he has urged her not to take the medication prescribed for her menstrual problems, and in particular for controlling her temper.  Fortunately to date, B has not been influenced by his urgings, and perhaps that is surprising, given her continued emotional attachment to her father.  Although there must be a fear that if that behaviour continues, she might start to be difficult about that which is plainly benefiting her.
9.		The father continues to be convinced that the local authority is pursuing a vendetta against him, and urges that she should go and live with him in Scotland, despite his parenting failings in the past.  The father seems quite unable, as does the grandmother, to see any benefit at all in B’s present placement and wishes to see her direct and have her live with him.  Even recently, the oppositional behaviour has continued, and I have today been shown Facebook entries in which it seems that father and grandmother are campaigning against the local authority and disclosing photographs of B of a worryingly recent nature which reveals, of course, that they have been in contact with her when they should not have been.
10.		It is important to note that in the proceedings before me, the local authority is not opposed in principle to contact between B and family members who reasonably co-operate.  I have already noted that her mother is seeing her regularly.  However, the evidence I have seen shows me that this father and this grandmother appear to have caused significant emotional harm to B.  That harm resulted in His Honour Judge Orrell, sitting as a Section 9 Judge on the 1st June 2011, making an order prohibiting all forms of contact between B and her father, even though subsequently indirect contact by telephone has been permitted on a four-weekly basis.
11.		There are other grounds to be concerned as to father’s attitude towards this case.  In late 2011 he is recorded as speaking gleefully of “Getting up the back” of the local authority.  The attitude of seeking to undermine the local authority’s plans for a learning-disabled young woman has not dissipated.
12.		Today, the case comes before me for final determination.  Neither the father nor the grandmother have attended Court; perhaps in one case because of the warrant, and in the other because of the future contempt application.  However, there is no doubt that long-term plans now need to be made for B. There is no active opposition to the order sought that B should remain in the care home where she lives.
13.		The evidence points unequivocally to me to the effect that whenever the father or the grandmother interfere in her life, B is disturbed and distressed.  A recent example suffices.  Only recently, she ran away from the home where she lives for a period of five hours.  She broke a window in her bedroom, threatened staff with a broken glass and smashed mugs.  She scratched herself on the arms and threw coffee all over the ceiling of her room.  I am told that when she is distressed, she blames the other young woman who lives in the accommodation with her, but her behaviour seems to relate not to the other young person so much as events in her own life.  These are plainly the actions of an emotionally upset young lady.  I am even told that she has recently been arrested and indeed cautioned, though of course the Official Solicitor will pursue and has my leave to pursue the validity of such Police action.
14.		Dr. Halstead reports that she is unable to translate distress into emotional anguish, hence, perhaps, her behaviour.  Sadly, she continues to have an idealised view of her father, who had promised her she could leave care at the age of 18 and come and live with him.  I am satisfied, on the evidence I have seen, that she has regressed to an extent.  She no longer goes to college and has ceased doing volunteer work.  She is in desperate need of resuming education, learning life skills and receiving therapeutic help, with which she will not presently engage.
15.		The local authority seeks that the father and grandmother should not have any contact with her save by indirect supervised telephone calls once every four weeks and no other.  The local authority takes the view that that position should continue for a period of five years.  The Official Solicitor supports a lengthy period of there being no change to the injunctions I am asked to grant to prevent any other form of contact, save that I am asked to consider both whether the period should be as much as five years, and the extent to which the orders I make are compliant with Article 8 of the Human Rights Convention.
16.		The local authority nonetheless seeks a five-year carapace of peace for B, so she is free of the litigation to which she has been subject for so many years.  There should be no application, for example, seeking direct contact and varying the injunction save with leave of a Judge of the Court of Protection.  In other words, it would remain open to the father or the grandmother to make application for such leave to the Court, or otherwise the matter should not be reviewed during that period.  The local authority offers an undertaking to keep the Official Solicitor fully informed of annual and six-monthly reviews and to return the matter to Court if in some respects, B regains capacity.
17.		So, what of the application for a five-year restriction order of the nature that I have set out?  I have looked at all the circumstances.  The history reveals: the inappropriate telephone conversations, set out by the local authority in its evidence before me; the attempted abduction; the breaches of injunctions; a recent attempt by the grandmother to see B, I think twice, in about February of this year; and of course the attitude towards this case of the father.  All these matters lead me to the conclusion that the best interests of B are served by restrictions in contact and by Injunction Orders of the nature sought by Ms. Cavanagh.  For this is a father and a grandmother who will not engage with the Court properly, and the father remains in serious contempt of Court.  
18.		Neither father nor grandmother have engaged constructively with the Court process.  They have not engaged with the social work team.  I see no evidence that either are considering the welfare interests of B or have begun to show any insight into the effect of their behaviour.  It is plain on the evidence before me that it would need six months of peaceful living, if I can call it that, for B to start to engage fully with the local authority.  Even then, it may take up to two years of careful planning to get her back into education, and learning and relearning the life skills she needs for independent living as well as engaging in therapy.  Fortunately, the care home in which she lives can keep her there until the age of 25, and it is plain to me, as it is to the Official Solicitor, that she relies on and trusts in the security of that home.  It is where she wants to be.
19.		Last Friday I had the privilege of meeting B at her care home in the presence of Ms. McFarlane, the solicitor agent for the Official Solicitor.  I noted particularly she said this of her father.  “If he really wanted to see me, he would come to Court”.  So from time to time she does exhibit a degree of insight.  I believe that could grow if she had the period of peace that I am going to provide her with.  For, after two years of therapy and education, the local authority could devise a transition plan for the future.  
20.		However, should the restriction of applications to Court be as long as five years?  I have borne in mind the very careful submissions of Ms. Lattimer, and I bear in mind, too, that B wants to see her father, even though she does not appreciate the dire emotional effects he appears to have had on her.  I have concluded that it would be right to restrict applications to vary the injunction for a period of four years only.  That is still a very substantial period and quite outside the norm.  
21.		I have, in coming to that conclusion, borne in mind these points.  First, that the period of restricted access to the Court should be at a minimum, compatible with the best interests of the person being protected.  Secondly, as is clear, I have anxiously weighed up all the circumstances.  Third, I am conscious that I am interfering, as Ms. Lattimer reminds me, with the right to respect for family life, but I have also borne in mind the right to respect for private life, and B is entitled to that, too, in her life.  I recall, although the matter was not cited before me, that in the case of K -v- LBX, [2012] EWCA (Civil) 79, Lady Justice Black pointed out the danger of concentrating too much on family life without considering private life as well.  This young lady needs to develop a life of her own.
22.		I have borne in mind, too, the risks in this case and that this is a wholly exceptional one.  I have borne in mind that Father is subject to a Hadkinson Order by me, and that he remains in contempt of Court.  However, I am satisfied that this case goes well beyond the normal.  I do not believe that the father or the grandmother could argue that they are caught by surprise by my decision, for they will have seen documents prepared for this case that have been served on them.  They know the local authority case and what it is seeking.  There is nothing new to them, and they know the local authority is making the arguments that Ms. Cavanagh was to make today.
23.		Finally, I have borne in mind that the restrictions I am imposing are proportionate to the circumstances of this case.  It is essential that B has that period of peace from litigation, and I believe that this is the best way of securing it.  So it will be clear, without going into the matter in any more detail, that I am applying Section 4.6 of the 2005 Act, addressing the best interests of B, and I hope that this case brings to an end the distress, upset and disturbance that she has plainly suffered in her short life.