Somerset  v MK - Court of Protection,Depravation of Liberty ,Best Interests Decisions ,Conduct of a Local Authority
Important Notice

This judgement was delivered in private. The judge has given leave for this version of the judgement  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 person under a disability and any members of her 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.

In the Court of Protection (sitting at Bristol) 

In the matter of Somerset County Council v WK

Date-6th July 2014

Before His Honour Judge Nicholas Marston.

Between 
Somerset County Council -------Applicants
         and
M.K .                                    -------- First Respondent
M.                                        --------- Second Respondent
F.                                         ---------- Third Respondent
MG.                                     ---------- Fourth Respondent
A.                                        ---------- Fifth Respondent
Robin Tolson Q.C. and Louise O'Neil for the local authority.
Aswini Weereratne for MK
Claire Wills-Goldingham QC and Kevin Farquharson for M
The 3rd and 4th Respondents appeared in person

1.	I heard this case for 9 days in May and June 2014 and after submissions I adjourned to draft a judgment. This is that judgment.  What I intend to do in it is to set out the history of the case and then of the litigation. Then I will deal with the factual issues upon which I have been asked by the local authority to make findings.  I will then deal with the central issue in the case, that of where in her best interests should (P), the subject of this application, live. 

2.	Next I will consider the conduct of the local authority and make findings on the issues as to whether P had been wrongly deprived of her liberty and, if she had, how long did that go on for; and finally what, if any, lessons can be learned from this case. I heard evidence from 9 witnesses over 9 days. If I do not refer to a particular witness in detail in what I anticipate will be a long judgment no disrespect is intended.  All the witnesses helped me immensely in this very complex case and I am grateful for their evidence. 

The Background

3.	P is aged 19, she was born on 10/10/1994 and has severe learning disabilities and autism spectrum disorder.  She has almost no verbal capacity and communicates through gestures and via PECS. Since birth she had lived with her mother (M) and, until her parents’ separation, her father (F) and her siblings. She has 3 siblings, (A) who is 21 years old and also has learning disabilities, autism and complex behavioural problems, (J) and her half-brother (B) who is the mother's child with (E) with whom she has had a long relationship and has from time to time and currently cohabited. 

4.	The local authority, Somerset County Council, have had a long involvement with the family and are the Applicants in this case.  P (represented by the Official Solicitor because of her lack of capacity) is the First Respondent, M is the Second Respondent, F is the Third Respondent, the maternal grandmother (MG) is the Fourth Respondent and A (represented by the Official Solicitor because of his lack of capacity) is the Fifth Respondent. Throughout this judgment I will refer to the parties as LA, P, M, F, G and A respectively.

5.	By May 2013 P was living at the family home in Yeovil with M and E and J and B and attending a specialist school.  A was by this stage living at a residential school placement out of Somerset but visiting the family on a regular basis. On 21st May 2013 P presented at school in an extremely distressed condition, presenting the staff with very challenging behaviour and exhibiting physical discomfort which M thought was due to her menstrual cycle which had certainly caused such distress and discomfort in the past. Her attendance at school was cut short later that day after she had gone on a school trip such was the level of her challenging behaviour and distress. She was returned home to Mr E by two teachers. 

6.	The next day M told the school she had noticed bruising on P’s chest area and she also contacted her GP about this. On the 24th May 2014 M was going on a family holiday for 2 weeks to Turkey and had arranged for P to be in a respite placement in Yeovil. M told staff there of the bruising. Shortly after admission staff identified further bruising on P’s chest area and P was sent to Yeovil District Hospital for an examination by Dr K, a consultant paediatrician. His report (G25) said: "the bruising is felt to be comparable with a blow / blows to P’s anterior chest with a significant force or fall onto an object… this would be an unusual injury pattern to have been self-inflicted but if this was the case then it would be expected that such self-harm, which would have been demonstrably significant and painful, would have been witnessed". These are very significant words given that members of staff at the school had observed on the 21st P breathing heavily and hitting herself on the sternum area (G28). This information was easily available but was never passed onto Dr K nor was further information that on the class trip on 21st P had displayed severely challenging behaviour pulling hair, kicking seats and that staff on that trip had been "taken to the ground" by P and she had had to be restrained in the approved holds for physical restraint on the trip. This information was disclosed to P’s IMCA by P’s class teacher in March 2014 but I find would have been easily discoverable by the social workers if they had carried out a proper investigation between the 21st and the 24th May 2013. Instead, at a strategy meeting on 5th June, as a result of the conclusions of the medical report that it was "highly likely that P has received a significant injury from someone or something other than herself...." so instead it was decided she would not be returned to her mother. 

7.	Looking at the note of this meeting at G29 it is clear that the headmaster of P’s school had told the meeting of P hitting herself (although apparently those who saw it thought not hard enough to cause bruising) but not about the incidents on the class trip. Had the doctor been told that she had been seen hitting herself and had been knocking over members of staff and falling to the floor with them in my view this would have been an important factor in her analysis of possible causes of the bruising. 

8.	Upon M’s return to the UK she was told that there was an investigation of the bruising and therefore due to this safeguarding issue P would not be returned to the family home. M confirmed she wanted P home immediately. Various capacity assessments have made it clear that P does not have the capacity to make decisions about her best interests and in particular an assessment on 7th June 2013 showed she lacked capacity to decide if she should continue at the placement in Yeovil or return home. Even though there was a clear dispute about what was in P’s best interests LA did not at this time make any application to the Court of Protection, nor did they consult with family members in particular F or GM (neither of whom was involved in the safeguarding investigation) to see if any family member could look after P short term, indeed GM who lives in Yeovil had not even been asked if she would like to go with P to the medical appointment with Dr K.

9.	In June 2013 A visited the placement in Yeovil and an incident took place between him and his sister which I will return to later in this judgment which resulted in A's contact to P being suspended. The LA accepts that no formal best interest assessment was carried out on this issue and the family were not consulted.

10.	P was at the placement in Yeovil until 25th November 2013. Her behaviour became increasingly difficult to contain and agitated. Eventually she was prescribed Aripiprazole, an anti-psychotic medication with sedative effect. Again the family were not consulted about this. It is quite clear that this placement which had begun by being for two weeks’ respite care was unsuitable for P. There are usually about 10 occupants at the property, all with learning difficulties, who are there for short periods. These conditions were clearly not appropriate for someone with P’s range of problems. That is not a comment with the benefit of hindsight, this should have been stunningly obvious to any social worker with any knowledge of P’s condition and history.

11.	P was transferred to Somerset Support and Assessment Service (SASS) in Taunton, an assessment and treatment unit, on 25th November 2013 and on 12th December 2013 a standard authorisation was granted by the LA authorising her depravation of liberty. This was the first time a deprivation of liberty assessment was carried out.

12.	The family's contact has been significantly limited to supervised visits to wherever she been living. She has had no contact with her younger siblings and contact to F and G has been supervised, even though neither of them was a suspect in the investigation into the bruising. When I asked P’s social worker Mr M about this he said this was for reasons of administrative efficiency. Again, no consultation and discussion has taken place with the family on this issue.

The Proceedings in the Court of Protection

13.	The LA issued these proceedings on 18th December 2013, 6 months after P was removed from her family and after M had made it clear she wanted her returned. At the start of the case the LA was arguing that there should be no return, relying on the bruising, the past history of child protection issues and concerns about A and the risks he posed to P. 

14.	District Judge Rogers on 18th December 2013 made interim declarations about lack of capacity to litigate and make decisions and also that it was lawful and in P’s best interests to continue to reside at SASS. On 10/3/14 DJ Watson in Bristol transferred the case because of its urgency and the serious issues raised to Mr Justice Baker who on 12/3/14 listed the case before me for a finding of facts/best interest hearing starting on 19/5/14, with the LA being directed to file a schedule of the facts they relied on by 26/3/14. On the 26th March the LA filed its position statement dated 25/3/14 to be found at A12 to 15. In this document the LA conceded that P had been deprived of her liberty (it contended that there may have been some doubt about that before but not after the Supreme Court ruling in the Cheshire West case). 

15.	In addition the LA accepted that there had been a period when they had unlawfully deprived P of her liberty contrary to Article 5 ECHR. It had not been authorised by the Mental Capacity Act 2005 and was not therefore “a procedure prescribed by law”. This it accepted continued from 8th June 2013 (the date when the respite care was supposed to have ended and 28th November 2013 when the first authorisation was obtained. It goes on to concede that P’s deprivation of liberty and the loss of her society to her family was a breach of both P and M’s Article 8 rights and not in accordance with the law.

16.	In addition the LA changed its position on the factual issues so that it was unlikely to pursue factual findings with regard to the injuries sustained by P. Previously the chest bruising seemed to form a vital part of the LA case and one might, for instance, have expected findings being sought about a perpetrator or perpetrators and failure to protect but now it was clear that no such findings were being sought. It is also clear from the document that the significance of the reported hitting by P of herself in the chest on 21/5/13 had been realised (the class trip evidence had not yet been identified). I suspect the realisation of the significance of this evidence in any Finding of Fact hearing and the instruction of very experienced leading and junior counsel just prior to this document being filed are not entirely coincidental. 

17.	The LA make it clear that the best interests decision as to what should happen from now on to P is one to be considered purely in terms of her present and future welfare needs. The document indicates that the LA wish to apologise to the family for its “procedurally inappropriate and unlawful" actions. It still proposes that the best solution is for P to be in LA care and accommodation (up to April 2014 it had suggested a long term placement at a care home in Bournemouth was appropriate). Now it accepts a new social worker should be involved and make another best interests assessment and the case should be returned to court for an interim consideration of where P should be.

18.	There was then a hearing before Mr Justice Baker and he adjourned the matter over to me for another hearing on interim arrangements which took place on 25th April 2014. Both His Lordship and I took the view that it was not appropriate so close to the main hearing to move P and then possibly have to move her back again but both of us were clear that we had in no way endorsed anything that had happened in this case up to that point.

19.	Since the last hearing before me the OS for P has indicated he intends to pursue a claim for damages for breach of Article 5, 6 and 8 rights under the ECHR, which arise out of the unlawful removal and has also applied to have that application heard within these proceedings.

The positions of the Parties at the Start of the Hearing

20.	On where P should live the LA were arguing it was in P’s best interests not to return home, but had now jettisoned the home in Bournemouth as a disproportionate response because of the 2 hours’ travel to and from the family home (see the statement of the new social worker Mrs C at G154 of the bundle) and were instead proposing a placement at Homes Caring For Autism in Somerset, a new facility that is opening in September with P remaining at SASS and continuing her education at her current school until then. 

21.	The LA had, after a fair amount of judicial prodding, filed a schedule of facts it relied on in support of this outcome and also had a contingency plan of 62 nights respite care, 5 days per week care and transport if I was against them and ordered P’s return. It also suggested generous and flexible contact provisions including staying contact for the family save that A should never have unsupervised contact with P, M, F and G all sought return to home for P. By this time M was represented by leading and junior counsel, F and G were litigants in person and the OS had instructed counsel to represent P and A. 

22.	An independent social work expert had been instructed and he had filed a short interim report on 1/5/14 in which he tentatively supported a specialist residential care placement and then filed a full report supporting P returning home as being in her best interests. At the start of the hearing the OS position with respect to P was that she should return home in the interim until fully considered plans for the future were made in consultation with the family. The new social worker had tried to get the family involved but it was not possible to do so near to the final hearing and in such a contentious case. 

23.	As an insight into the family's thinking M says in her witness statement at G207: "I have also lost confidence in the local authority's ability to act in accordance with P’s best interests and human rights ----- when I reflect upon the events of the past year and beyond I come to the conclusion that the LA intervention has been both ill-informed and unjustified". Without, at this point, coming to any conclusions on the merits of that view, I can completely understand why she has come to it and would not have expected any dialogue about P so close to the final hearing. 

24.	By the end of the evidence the parties’ positions had changed somewhat. The family all wanted P home in a managed return with a package of support to be agreed with the LA beforehand. Then the OS for P had come to supporting P’s return home and remaining there for the foreseeable future with an appropriate package of care and support at home and in the community and the LA was now said to be "neutral" on the question of P’s best interests but seeking to have me find the Schedule of Facts it relied upon and weigh up the factors it stressed in the light of the findings I was asked to make. 

25.	The siren song behind the argument is if I make the findings of fact and apply them and all the other relevant considerations to the case I will be driven to find that P’s best interests will be served by her not returning home, but as far as the LA are concerned that is a matter for the judge. An outside observer might ask himself the question if everyone including the independent social worker and the OS for P are agreed on a return home and the LA are neutral why has it taken 9 days to litigate the case? However the reality is that the past conduct of the family and the LA are the context for the best interests decision and also the components of the breach of the ECHR application and thus needed to be carefully examined.

The Schedule of Facts

26.	The LA found themselves in a difficult position when they decided they were not going to seek findings on the bruising, which had actually been the reason for refusing to let P go home. They had not previously issued any public law proceedings while P was a minor seeking removal (they had considered doing so on at least one occasion and not done so) and they had not issued any application in the CoP saying it would be in P’s best interests to reside somewhere other than home. Yet their strategy at that stage was to argue for a placement in a residential home 2 hours away from Yeovil (later amended as I have pointed out). They sought in the Schedule of Facts to support their preferred outcome. 

27.	It has to be recognised that in 19 years of looking after P and a relationship with the local authority some of what the family have done can be criticised and some of the decisions they have made will be wrong; this is a fact of life. All of us get things wrong and all of us don't get on with or have bad working relationships with someone. It also has to be recognised that the family are dealing here with an extreme set of challenges in bringing up both P and A, add to that a very bitter, at the time, matrimonial breakdown, a complex set of relationships between M, F and Mr E and all the other vicissitudes of two decades of human experience mean that you have to have a sense of proportion and perspective about allegations made against the family (see for example Mr Justice Charles comments about this sort of case in A Local Authority v PB and P (2011) EWHC502 at paragraphs 3,4,and 5). 

28.	I am also reminded in the final submissions for M that, as with all issues of fact, the party making the allegation has to prove it on the balance of probability. If it cannot be so proved it did not happen. It is an obvious statement but it needs to be said that facts are proved by evidence. 

29.	Having said all that paragraphs 1 to 7 of the schedule are obviously correct as is 9, but no family would be expected to meet P’s needs on its own. 10 and 11 were true however now A has not lived at home for a long period of time and having heard both M and G’s evidence I find it is virtually inconceivable that he will ever do so again. As for the matrimonial breakdown, I find that it was very difficult but the parties have found a way to work together, particularly over P, possibly as a result of this case. I therefore find that F will be playing a greater role in P’s life in the future and that he is a great source of pragmatic common sense and ability to deal with issues intelligently and in P’s best interest, as has been made clear in the last year and in the way he conducted himself as a litigant in person throughout the 9 day hearing. 12 was true but is not now the case because A is not there. 

30.	The LA have attempted at times to raise some sort of concern about sexual issues but has not proved anything about any family member. 13 is not a request for a finding of violence: "The LA does not seek to prove non-accidental injury upon any specific occasion or generally. It's case is that there are relatively frequent altercations culminating in assaults of a relatively minor nature (worrying but not causative of serious injury) but which occurred to a concerning extent".  This seems to me to be unprovable and irrelevant at the same time.

31.	14 is a finding that the family could not prevent P from striking out at others. The evidence for this is that it happened at home and at school and there is evidence that it was happening on the class trip in May 2013 and has continued to happen at both Yeovil and SASS in Taunton. I cannot therefore see how this is relevant to best interests issues, it's a problem any carer would have. The same conclusion arises from 15 where bruising on P is said to: "reflect a failure to protect from harm in the caring regime including (but not limited to) the family's care”. 

32.	The issue of bruising is one which has been running for a long time (see counsel for the OS/P’s very helpful bruising chronology document) and bruising has continued at school, at Selwyn and at SASS. 17 says it's reduced since removal from the home, but that fails to take into account both P’s isolated state at SASS where she has been the only person there and the effect of her medication on her behaviour for the last 9 months. 17 is factually correct. 18, 19 and 20 are very heavily disputed and I am not able to find that there was a lack of stimulation on the family's part previously. The allegations seem to centre round P spending a lot of time in her pyjamas in her room. I accept M’s evidence that P would change out of her school clothes into her pyjamas and be in her room but she would also come down and interact with the family and I also accept that 1) after a day of stimulation at school she enjoyed some down time 2) her condition means she does not need to or want to interact all the time with others 3) she is behaving like this at SASS now. Stimulation in future will come as it has in the past from a number of sources and P will need that plus a happy home environment where she feels secure in order to benefit from it.

33.	The allegation about food at finding 21 is not proved as being linked to anything the family have done or not done in the past. Finding 25, the issue of Mr E drinking, is one where I don't have sufficient evidence to make any finding of its extent or that it impacted in any way on the care that P has been given. 

34.	Findings 26 to 35 are not in my view findings of fact as I understand them, just a series of generalisations which no one could disagree with, and 36 to 39 are a restatement of the LA case.
 
35.	Finding 22, inability to accept advice on M’s part, and finding 23 M’s rigid style both of parenting and of dealing with professionals, are important issues when considering if returning home is an appropriate option because they directly relate to issues about the care P would be getting at home. Three points need to be made first. As I have already said, given the longevity of the relationship between M and the social workers and the number of social workers involved, there are bound to be some people who don't get on and some who do. In her evidence M told me of social workers she had had good relationships with and others (the majority it has to be said) she did not. Second, M has a strong personality, otherwise she would have sunk under the weight of cares and problems in the last 20 years and she perceives herself as having to fight for a good deal for in particular P and A.  Third, as will become clear in the later parts of this judgment when I examine the conduct of the LA over the last 13 months, she and her family have had a lot to put up with. In his evidence the senior manager for social services conceded LA failures across the board and the damage that has done to the family and its relationship with the LA. Having said all of that there have in the past, prior to May 2013, been real clashes of personality and failures in communication but I cannot find that it has been proved on the balance of probabilities there has been an irrational refusal to co-operate from the family with the statutory authorities. The best evidence for that is that there was never, in the whole of Ps minority, an application in public law proceedings and no doubt if the LA had had evidence at the time of failure to co-operate on a scale which was causing P or any of the children significant harm such an application would have been made. 

36.	Two final points before leaving the Schedule, first the relevance to a best interests decision now of historical concerns which have never led to legal action prior to May 2013 has always been, in my view, difficult to demonstrate, so I agree with the comment in the Closing Submissions of the OS for P at paragraph 28 page 7: “…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges."  Second, the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.

What is in Ps best interests now?

37.	I propose to consider the evidence on what is in the current best interests of P and then set out the factors in a balance sheet and make a finding.

38.	There are two possible places for P to live; either at home or, as is suggested by Mrs C in her statement at G155 onward, in a home run by Homes Caring For Autism at some point in September with interim arrangements being made until then. Going home would involve a package of care being put together by the LA and there was extensive debate about that in the course of the hearing. Essentially two proposals were made by the LA either 62 days a year respite care and after education ceases day care and transport or what was called "the marriage proposal" because it involved a compromise between P being at home and having all the rest of the facilities of a care home, including workers coming in to the house on a daily basis.
 
39.	When considering what is in P’s best interests my starting point is of course section 4 of the Mental Capacity Act 2005. I am charged by that section to “consider all the relevant circumstances. First it is a very sad but unarguable fact is that it highly unlikely that P will at any time have the capacity in relation to the question of where she should live to decide the issue herself. Then section 4(4) requires that P should be encouraged and permitted to participate in the decision-making insofar as is reasonably practical. This process was carried out for the first time by Mrs C when she took over the case. At G158 she says: "I have come to the conclusion she is able to exercise a conscious choice to return home". She goes on to say: "my concern is that in exercising that choice she does not understand the potential risks there might be if she was to return to the care of her family, or in any rational manner weigh up the advantages and disadvantages." 

40.	There is a note of Mrs C taking steps to find out P’s views at G183.  I have read that note and it seems clear that P both from her action with the photographs and her choices with her PECS symbols that P wanted to be at home, as are her actions of taking her clothes off the hangers and packing them in to her bag the next day. As Mrs C says “she is determined to make her wishes known”. The actions of packing, dragging members of staff by the hand to the doors, doing the same thing with family members on contact visits and so on have of course to be measured against her condition. Certainly when asked about her wishes her school teachers urged me to be cautious and in his report the independent social worker deals with this point at 5) on internal page 62: "she lives in the here and now and that compromises her ability to make choices that are not concrete and immediate.” In his written evidence and his oral evidence he is doubtful about the picture and PECS evidence, however he also said to me that the evidence of her actions, i.e. packing to leave and so on was much more indicative at that moment of her views.  

41.	Certainly the common sense view of the senior manager of social services in his evidence was that on every occasion when P has, by direct questioning or by actions, been expressing a view she has clearly expressed a wish to go home. I find it odd that some of the LA witnesses could not see that and wanted to argue that a much less obvious conclusion should have been drawn. That wish has to be given appropriate weight and the authorities establish the following. P’s wishes and feelings are always a significant factor to which the court must pay close regard but the weight to be attached to them is case specific and fact specific, it all depends on the circumstances of the particular case (see Re M (2011) WLR344 Mr Justice Mumby as he then was. Here I make the following findings: 1) P has lived at home with her family for 19 years 2) she would have wished to remain with her family 3) she wants to go back to her family and expresses that wish by all the communication methods available to her.

42.	Further, I find that it is overwhelmingly likely that if she had capacity she would express the same view that she should be at home. I draw this from her life experience of 19 years with her mother, her siblings and her grandmother. It represents the status quo, what she is used to.

43.	The united view of the family is that she should be at home. They have expressed this view throughout even though for most of the last year they have not been properly consulted.

44.	The family, P, M the siblings, GM and F have a right to a family life. I find there are strong emotional attachments in the family and that the standard of care that P has received has been good on a day to day basis. Any interference with this right to family life will need to be justified as being necessary and proportionate. 

45.	What are the benefits of being out of the house / burdens of being in it that are put forward by the LA to justify the interference with the right to family life?  The LA do not now argue there are any safeguarding issues. It's argument now is that a placement outside the home would fulfil P’s wider potential in that she would be provided with the skilled 24 hour support that she has been receiving recently (although that point is arguable) in order to ensure her personal development, safety and wellbeing.  

46.	This was very much the approach of the new social worker, Mrs C. She had to take rapid decisions in a very complex and difficult case and was not able to consult with the family for the reasons I set out earlier. She is worried about the level of co-operation with outside agencies if P is returned home. A good example of this was the concern about failure to use the PECS system in the house. When M was asked about this her evidence in summary was that they did not need to use the system in the home because they had, after 19 years of living with P, many other ways of communicating with her but they recognised that PECS was a great system outside the house. What seemed an unreasonable position seemed reasonable after it was explored sensibly. 

47.	There were a number of other points like this that were divisive because of bad communication which evaporated when explored. I make the following findings on the issue of co-operating with the LA having heard and seen each of the 3 key family members give evidence. I have no doubt F will actively seek dialogue and co-operate with the LA. I also think G will do so. I further find that once this extraordinarily divisive case is over, particularly if there is an intermediary to explain and mediate the views of the LA to her as is suggested, M will co-operate with LA in P’s best interests.
48.	The independent social worker reported under, if anything, even more time constraints than Mrs C and his report supported the LA outcome with a number of caveats and requests for more information. He then unequivocally changed his mind in an e-mail dated 19/5/14: "…my reservations concerning P returning to live in the family home are not sufficient justification to recommend that she move to specialist residential provision for adults with autism rather than return home". He went on to say that a support service should be identified to act as a link between the LA and the family because of the lack of confidence the family have in the LA, that there should be a financial appointee for P and an on-going review of the situation. 

49.	Not surprisingly he faced a lengthy period in the witness box as a result of his change of views. He explained that his original view was a tentative one, the time scale plus the mass of documentation (12 files plus another 10 of other documents disclosed very late in the day) had put him in a difficult situation. He had taken thinking time and reassessed his position. His view was an Autism Specific Service should be involved to explain to M and the family why she needed a particular support from an agency. He said the time was not appropriate for residential care but a service like Lifeways that he had had experience with before could act to fill any gap between what the family could do and what was needed (that is my paraphrasing of his evidence). 

50.	In cross-examination by the LA he said: "She is only 19 years old. Home not residential care is what she needs at this point. Residential care is disproportionate. My original report was tentative. I was under time pressure and I had not had all the information. I feel the point I have arrived at is one I am confident in - I agree with her right to family life". 

51.	Later he said he had considered the case and as far as he was concerned at this point in her life: "The magnetic imperative is that she has a right to a family life and not to be deprived of her liberty". He suggested that with a careful use of outside agencies who were brought in after discussion with the family you could develop her potential and have her at home.
 
52.	I need to look at the views of the other professionals and here I can adopt the OS analysis of these witnesses because I agree with it. The senior social work manager is a highly intelligent and senior social worker but he is essentially there to fall on his sword for the LA failings and on the best interests issue does not add anything to the LA case.  As for Mr M, his previous part in the process is so flawed I give very little weight to his views on any issue. The two teachers from P’s school have been very heavily influenced by Mr M and the previous social work teams negative views on anything to do with the family so that I treat their evidence with caution. The IMCA who was appointed very late in this matter and whom I regarded as a brave and trenchant fighter for P and who was in an inelegant but descriptive phrase "hopping mad" with the LA’s approach to so many issues in this case, had not really focused on the best interests decision.

53.	Finally the LA have sought to argue that the events of the last year or so are immaterial to the decision I am taking now, but I do not agree. If the LA had had a proper approach to this matter it is very likely that P would have been home many months ago and that is a backdrop that I must acknowledge.
 
54.	The balance sheet therefore shows the following –

In favour of P returning home 

i.	Her wishes
ii.	The wishes of her family
iii.	The right to a family life of P and her family
iv.	The fact that at home she may not be subject to any deprivation of liberty and therefore this will be the least restrictive option
v.	Concerns about the bruising have been abandoned as a reason for her not going home
vi.	The OS supports return
vii.	The independent social work reporter supports return
viii.	I have found nothing in the Schedule of Facts to prevent return
ix.	I have found there will be a degree of co-operation between the principal family members and the LA.

For a placement in a specialist home

i.	The view of the LA that P will best reach her full potential in terms of her development, social life, communication skills and so on in a specialist home.

55.	It seems to me that the balance comes down decisively in favour of a return home. I do not undervalue P reaching her full potential but with a careful support plan, activities outside the household and an independent agency as suggested to advise and mediate I think many of the benefits of the LA case can be accessed from home, in other words it is possible with goodwill and co-operation to have the best of both proposals. I would like the family and the LA to sit down and discuss that proposal and a structured return.

56.	I now turn to consider the other main issue in the case whether, in view of the LAs conceded unlawfulness, P should have come home in June 2013 or at any time thereafter. I need first to consider the conduct of the LA throughout this case.

The Conduct of the Local Authority

57.	The starting point for this is the apology in the case outline that I set out earlier, but this was expanded and elaborated on by the senior social work manager, who is the Strategic Manager for Adult Social Care, the No. 2 in the county for social services. His tasks were to attend the case, to respond to questions on behalf of the LA (when he gave evidence it looked as though, because of a family bereavement Mr M would not be able to give evidence), to, as he put it, fall on his sword for any errors and to "understand what had gone wrong and to put things right going forward." He was in my view a highly intelligent, experienced and well-intentioned manager and social worker who was, having observed him not just when he was giving evidence but when he was listening to evidence, genuinely shocked at some points by what he heard. At the start of his evidence he said: "I think the crucial aspect relying on what I have heard in court is a fundamental misunderstanding of the role of adult social care and how to go about their jobs".
 
58.	He (and I) did not question the motivation of LA to do the right thing, as they saw it, for P but he described the conduct of social workers on the ground as misguided. There was no understanding of the law in this area and that extended to the LA lawyers as well as social workers. He accepted when I asked him that not only were individual actions wrong but the philosophy behind those actions was wrong as well. In particular he said that practice was inadequate when consulting with the family: "I have to ensure the staff who work in this area understand their role and I clearly failed in my responsibilities, failure as team manager, they failed to seek or take advice given the complex nature of the case. The beliefs and intentions of what people did was misguided in its approach". He was very critical of the delay from September when the police indicated they were not taking their investigation of bruising any further to issuing proceedings which seemed to him to be time taken to, "put a good case together, which was not what we got".  He also highlighted the failure of the LA in not having a lawyer who specialised in adult social care.

59.	I now want to look at some of the problems on the ground which I find demonstrate all these failings and show how they permeated the LA thinking and blighted the case. 

60.	The background to the way LA should have worked is set out in the Code of Practice and is analysed in M's closing submissions at pages 2 to 7. I will not set these out in full but the approach should be first to at all times see if P has capacity to deal with a particular issue, if not examine the issue from her view point taking whatever steps you can to ascertain that, then consult the family, "It is axiomatic that the family is the corner stone of our society and a person who lacks capacity should, whenever possible, be cared for by members of his natural family, provided that such a course is in his best interests and assuming that they are able and willing to take on what is often an enormous and challenging task".(Mr Justice Baker in G v E ). 

61.	In the Code of Practice clear guidelines are set down about how to deal with disputes. Communication and discussion are recommended. 15.3 sets out how that can best be done, if there is a problem get a second opinion or expert advice, use an advocate to support the person who lacks capacity, arrange case meetings with the family, give the family time to think. If the dispute cannot be solved then go to court as quickly as possible. I contrast this with what actually happened here.

62.	On the issue of thinking about things from P’s point of view there was, so far as I can see, never any consideration of how she might be affected by removal from her home and family while the previous team were involved. Nor does there ever seem to have been any consideration of her having been deprived of her liberty by the placement at Yeovil nor the impact of the supervised contact on her. "I think it was more a management strategy. Our thinking at the time was all these restrictions were on the family not on P" said Mr M.  He could not explain why F and G were given supervised contact when they were not part of the safeguarding investigation, could not explain why G was not asked to accompany her granddaughter to the medical, why neither she nor F were given the opportunity to have G live with them after a few days at Selwyn. The failure to appoint an IMCA here for many months is inexplicable and I don't understand why it did not happen.

63.	There was a meeting between M and G and Mr M on 10/6/13 with the background of M returning from holiday and being told she could not take her daughter out of respite care. The notes show the reason for the refusal is squarely placed on the bruising. M informed Mr M about the self-harming and the school trip and discovering the bruising the next day. She said she had told her GP about the period pains and the school about the bruising. The family were told further investigations were needed. G asked if she could have P to stay. The response to that was again there is an investigation going on. M made it clear that she wanted her daughter home and would like to work with the LA to secure this. 

64.	There was a telephone call between F and Mr M on M’s request. Mr M's note at O724 is that F told him that when he was at home P did self- harm and on occasions hit herself hard and suffered bruising, usually this seemed to be connected to having pain. He went on to say that despite "M being a pain in the arse" she would never hit or harm P. He also suggested speaking to J, P’s 15 year old brother to check if anything was wrong at home, this was so far as I can see never done.

65.	A picture emerges of a coherent narrative of P suffering bad period pains and self-harming, P actually being seen at school hitting herself and then being involved with members of staff on the class outing who had to restrain her because of her behaviour and them all "going to ground" in some unspecified way. M then reports the bruising to school and her doctor. F (who at this stage was not likely to be anything but an impartial witness) says he has seen her self-harm before and M would not do anything. A does not live at home by this stage and no incident has ever been recorded concerning the other siblings. I find that if a proper open-minded investigation had been carried out no basis for not returning P would have been found.
 
66.	There does not seem to have been another meeting, save for a meeting about contact from 17/7/13 until 17/12/13. The contact guidelines were going to be re-examined when the safeguarding investigation ended.  

67.	The police finally finished their investigation in September 2013, it was inconclusive. The LA were now in a position where prior to May they had not taken any action and the bruising in May could not be used to substantiate a retention of P. At the same time they had a very distressed young woman on their hands to whom medication was now being or about to be administered.
 
68.	Around about the time of the move to SASS people at last start to show alarm at the legal position. Why had they not appointed an IMCA (e-mails at O1169): "I am really not clear how we are holding P at Selwyn", a colleague to Mr M  22/11/13, later that day in another e-mail should they not have gone to the CoP?  Mr M on the same day: "P is still under safeguarding procedures". One asks the questions why does he think that now the investigation has been over for two months and how does he think that justifies holding her?

69.	There had been other meetings the family should have been invited to but were not on 5/9/13 and on 12/11/13. The first of these meetings comprises of a massive amount of criticism being levelled at M and Mr E in particular most of which is either hearsay or from an anonymous source who is quoted at length but seems to be highly unreliable and possibly had some kind of personal agenda.

70.	At the meeting of 17/12/13 it was explained according to the minutes at J35 that the family were invited to discuss plans about P’s future and express their views. In fact it is clear that was not the reason they were invited at all. Far from a change of heart and an attempt to communicate the reason is clear. It was felt by Mr M on advice from the LA lawyers that: "The COP might pick up that no 'round table' meeting has been held and this might disadvantage us during the hearing" (see the bundle at part O page1086). 

71.	This meeting was recorded by F on his phone. He is criticised for doing that but I find he did tell the other attendees at the meeting. It's possible they may not have picked that up but I am sure he is telling me the truth about that. There are significant discrepancies between F’s transcript and the note by LA but the parents emerge as concerned desperate to have P back home, very worried about her being medicated and in both cases, particularly F’s, prepared to talk and negotiate and consider options.
 
72.	The approach by Mr M to the pending litigation can be seen from his e-mail to the school of 7/11/13 at O1201 when he is asking them for information and talking about the case: “Unexplained bruising incidents will be the main focus, so it would be helpful if you have info to hand of the main incident you are aware of since the significant bruising to her face of 28/01/09 and the most recent one in May this year. Also any additional info you have on when staff were concerned about Mr E or M i.e. smelling of alcohol on them or how they treated or behaved to P or their other children". Interestingly the e-mail reply gives details of an injury P sustained the previous day said to be green in colour situated on her wrist and probably due to P hitting herself at Selwyn.
 
73.	When asked about excluding the family from meetings the senior social work manager said: "we were miles off the mark there" and on the e-mail to the school I have just quoted he said balance and a need to look at strengths and weaknesses was what was required. 

74.	This is already a very long judgment and so I do not propose to go on reviewing the LA’s conduct further. The overall summing up by the senior social work manager was: "There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it's going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”."  Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

Findings on the Breach of Human Rights Allegations 

75.	In its position statement of 22/4/14 the LA concede that P was deprived of liberty and that there was a period where that depravation was unlawful. It's case is that was from the end of the respite care in early June to the urgent authorisation on 28/11/13. It further concedes that the deprivation of liberty and loss of her society to the family amounted to an interference with respect to their right to a private and family life contrary to Article 8 ECHR and that interference was not in accordance with the law. It argues that if a lawful process had been followed it is likely that P would have remained away from home while the LA pursued its concerns over safeguarding (the bruising issue) and in due course of time P would have moved to a residential home as they now suggest. It is conceded that if I do not think the residential home is in P’s best interests P should have been returned home at a significantly earlier date.

76.	There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

77.	The LA seeks to rely on the DOL urgent authorisation it obtained on 28/11/13 to close off the period of unlawful deprivation of liberty. In the case of London Borough of Hillingdon v Neary (2011) EWHC 1377, a case that has many depressing similarities to this one, Mr Justice Peter Jackson said at paragraph 33: 

"The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person's best interests to be in that place at all. Using the DOL regime in that way turns the whole spirit of the MCA on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case far from being a safeguard the way in which the DOL process was used to mask the real deprivation of liberty which was the refusal to allow Stephen to go home." 

I find that is also precisely what has happened here and the breach of Article 8 rights continues up to now. 

78.	These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it. 

The Appointment of a Financial Deputy 

79.	I have heard some evidence about possible financial misconduct or at least inappropriate pressure being placed on A by M and G about money issues. The detail of this was denied by M and by G and G was in particular very upset about the alleged threats and behaviour towards A. The love that she has for the children was clear from her evidence and the description of her and A in New York dealing with the hubbub of Manhattan showed how attached she is to him. I cannot make any findings on these issues although they concerned the independent social worker considerably. I think things may have got very heated and perhaps things were said which should not have been said but the appointment of a deputy to make financial decisions for P while she is at home is disproportionate here. 

Contact with A

80.	I have been asked to consider the issue of whether it is in the best interests of P to have contact with A. I do so consider and do not propose to set out my reasoning since the issue is not in dispute from any party. The approach by the LA to contact between the two siblings has been very inconsistent in the last twelve months. The starting point was that all contact had to be supervised by a professional and there was a great deal of LA concern about an incident between P and A on a contact visit on 21/6/13. However the LA did not pursue any findings of fact on this. The LA were then seeking supervised contact to be ordered and the issue was canvassed with various witnesses. 

81.	The independent social worker recommends at 4.6 of his report of 30/4/14 that A gets some support before contact resumes about his behaviour and how it might affect P and Mrs C also advises some work should be done to prepare P for contact. This has now happened but I think needs to be refreshed for both siblings. The independent social worker also advised professional supervision initially then family supervision after some advice and assistance with how best to do this from social workers. All this was accepted by the OS for A as were suggestions that initial visits should be an hour in duration once a fortnight and contact should be brought to an end if there were any signs of distress or difficulty. In addition there should be other contact at M’s home or in the community for any significant celebration. 

82.	I have had the benefit of careful written submissions from the OS on these issues and adopt the arguments put forward therein. I agree there should be a review and it seems to me the draft schedule of contact should be included in the order of the Court. Finally I must mention the abortive contact that was arranged during the Court hearing without telling the Court or the family and without preparing P. I had to make an interim order stopping that and no doubt that upset and confused A. I was very unimpressed with the lack of consultation with the family or information to me on this. It was a crisis which was eminently avoidable, caused distress and distracted us from the important issues in the case. I am sure that sort of lack of consultation with interested parties will not happen again.

Conclusions 

83.	I have been very critical of the LA in this judgment but I want the LA and the family to rebuild the relationship here for the benefit of P. I have mentioned one social worker in this judgment extensively by name but I note that he was only the person on the ground who linked with the family. He was assisted and supported by others, this was a systemic failure by the LA and it will only be put right with a system wide effort.

Addendum
 
84.	I wrote this judgment and was about to issue it when I was contacted by the LA and told that there were issues which had arisen on which I might like to have more evidence before handing down the judgment. It turns out that after an assessment, Lufton College who seemed to be offering another year of education for P and Homes Caring for Autism, both feel they can have no further useful input into the case. I am sorry about this but I do not feel this affects my decision and I stress again it is for the LA to sit down and discuss these matters with the family and for alternative resources to be put in place in P’s best interests.

His Honour  Judge  Nicholas  R.  Marston 
6th July 2014