Alex RKHow far can the State be expected to go in seeking to secure the rights of those in challenging situations? A few months after this issue was looked at (albeit slightly curiously) from the perspective of Article 2 ECHR in R (Parkin) v His Majesty’s Assistant Coroner for Inner London (East) [2024] EWHC 744 (Admin), Gywnneth Knowles J has looked at it from the perspective of Article 3 ECHR. In Re P (Vulnerable Adult: Withdrawal of Application) [2024] EWHC 1882 (Fam), she was asked to consider the question of whether she should continue to use the powers of the High Court to compel a 29 year old woman to live apart from her father.
P’s circumstances were summarised by Gwnneth Knowles J thus:
9. The local authority first became aware of P following a referral from the police in early March 2022. X [P’s mother] had reported her concerns to the police, namely that Y exercised control over P; that P lacked access to basic necessities such as heating and food; and that P was financially dependent on her father who lived on a very limited income indeed. P and Y were living together in the family home at this time. The initial police report detailed how P – then aged 27 years – appeared to look like a young teenager, being underweight, and pale with sores on her mouth. Following the referral, the local authority attempted in vain to engage P, making over 17 visits to the family home between March 2022 and May 2023. The social work evidence showed a concerted effort by P and Y to evade health and social care professionals and the police. It is important to note that, at that time, P had never been known to Children’s Services and, save for obtaining the Covid vaccine, had last attended her GP a decade earlier for a minor ailment. She left school at 16 without any qualifications and appeared never to have been in paid, formal employment or to have claimed state benefits. She was socially isolated with no friends or contact with other family. P has a brother, Q, who has been diagnosed with a serious psychotic illness and was hospitalised in March 2022. He has never returned to the family home since then and presently resides in a mental health unit as a voluntary patient. Q has said almost nothing about his sister’s circumstances in the family home.
10. In April 2023, P and Y were evicted from the family home because Y had failed to pay the mortgage and the property was repossessed. Thereafter, both P and Y slept in a car parked on the property’s driveway, using an external mailbox at the property to collect post. There was no evidence that P or Y were trying to find somewhere else to live or making a claim for state benefits to enable them to do so. In May 2023, two separate referrals were received from members of the public expressing concern about P’s living circumstances.
11. Concern about P’s circumstances was heightened by the information gleaned about X’s experiences in the family home before she left in 2015. Both X and P’s brother, Q, reported Y to be controlling, paranoid about government, and suspicious of professionals. X described family life as “cult-like”with Y assigning family members roles in the family home so that he could concentrate on his health. X gave an account of her life to the local authority detailing prolonged domestic abuse by Y in which P and Q had been required to participate. Neither X, P or Q were allowed to leave the family home unaccompanied by Y, work, or claim state benefits. Shopping was done as a group and Y controlled the family finances, only allowing £1.50 a day for food for the entire family. Food was rationed and measured out in small amounts and the family diet often consisted of bread and jam/mustard. X reported that P and Q had to wear covert recording equipment to school so that Y could monitor their interactions with others. Y had refused to sign a learning agreement which resulted in a B-Tec course for P being terminated. His control over the family appears to have extended to limiting showers; cutting the family’s hair himself; and restricting P’s access to funds so she could purchase sanitary towels.
Proceedings under the inherent jurisdiction of the High Court were started by the local authority in July 2023. Orders were made by HHJ Burrows to the effect:
11. [….] that it was in P’s best interests to be accommodated at a care home and to be transported to that place, if necessary, with the use of force. The recital to the court’s order explained that the court had concluded, on the available evidence, that P was under the influence and control of Y and that P was at significant risk of serious harm because she was living in a car with Y in cold weather, appearing to be malnourished. In those circumstances, the court determined that the need for protective action was urgent and that the conveying and accommodating of P at the care home amounted to a deprivation of her liberty, authorised in accordance with Article 5(1) of the European Convention on Human Rights (ECHR). HHJ Burrows did not impose restrictions upon P that prevented her from leaving the placement during daylight hours. When the matter returned before the court on 16 November 2023, HHJ Burrows authorised continuation of the placement in circumstances where the car in which P had been living with her father had been repossessed by the finance company, thus depriving P anywhere at all to go should she leave the placement. HHJ Burrows recognised the draconian nature of the orders he made but considered them necessary so that P’s circumstances could be assessed away from the influence of her father. He emphasised the critical importance of P being represented and encouraged both her and her father to obtain legal advice. He stressed the court’s and the local authority’s genuine concern for her welfare but made clear that there may come a point where the court was unable to alter P’s mindset and circumstances, rendering the proceedings otiose.
12. In December 2023, the court directed a report from a consultant psychiatrist, Dr Ince, and listed the matter for further review. Y was prohibited from having contact with P at any place other than the residential placement, such contact to be prearranged and supervised; and prohibited from behaving in any way so as to prevent P from attending court or having access to health or social care professionals or to Dr Ince. In order to prepare his report, Dr Ince spoke with P in January 2024 but P refused to leave her room and speak with him on his next visit in early February 2024. Having considered all the material and interviewed Pon one occasion, Dr Ince concluded that P did not have a mental disorder or mental impairment. Her behaviour and views were a manifestation of the undue influence of her father arising from coercion and control. As a result, P lacked the capacity to conduct the proceedings and to make decisions about residence, care, contact with her father and state benefits. In his opinion, P did not recognise the impact of Y’s beliefs and behaviour upon her own well-being or broader decision-making and Dr Ince drew attention to the positive impact of her relationships with staff at placement as a protective factor, these allowing objective but supportive challenge to P. Though hesitant to make significant comments about P’s best interests, Dr Ince suggested that P was developing some confiding and supportive relationships with the current care team together with social connections in the placement. Should the court be satisfied that P continued to require the protection of the inherent jurisdiction, Dr Ince was of the opinion that her continued placement within a supportive environment would be a positive step towards a greater level of independence. Without such a framework or if there were to be a hasty removal of the placement, there would be a significant risk that P would not have developed the relevant and necessary skills to prevent a return to her father’s control and a re-establishment of her prior dependence, enmeshment, and coercion.
13. In March 2024, HHJ Burrows declared that P lacked the capacity because of undue influence to conduct the proceedings and to make decisions as to residence, care, contact with her father, and applying for state benefits.[1] The placement arrangements did not any longer deprive her of her liberty but were a necessary and proportionate interference with her rights under Article 8 of the ECHR. He invited the Official Solicitor to act as P’s litigation friend, appointing her to act as such if she accepted the invitation to do so. Directions were given for the filing of further evidence and the matter was set down for trial before me on 2 July 2024 with a pre-hearing review on 7 June 2024.
Unfortunately, the move to the residential placement did not achieve any positive benefit for P:
16. P was conveyed to the residential placement without the need to use restraint or force. Following her move, P was unwilling to provide information about herself but eventually she seemed happy to engage in some activities. She had a set list of food that she would eat which was rather limited. P appeared to spend considerable time researching the law relevant to these proceedings which she explained to staff, appearing to be reading from a script. She was focused on some matters but did not appear to have an understanding of the court order as a whole. By the time of this hearing, P continued to engage superficially with the psychological help provided at the placement but would not take part in formal sessions. She did however engage with staff and participated in planned activities and appeared to have formed some friendly relationships with other residents. She now ate the food provided at the placement and no longer appeared to be underweight. P had declined state benefits despite an application for Universal Credit being made on her behalf by the local authority. She had some engagement with an Independent Domestic Violence Advocate via email and information about controlling behaviour and undue influence was going to be sent to her but P had ended the contact before this could take place. P had declined to meet with the social worker to discuss alternative residential options.
17. The local authority social worker was of the opinion that, during P’s residential placement, there had been little progress made in either P’s understanding of the risks arising from her enmeshed relationship with her father or her recognition that she had been subject to controlling, coercive and abusive behaviour. P was unlikely to make significant progress unless contact with her father could be prevented, but the only means by which this could be achieved would be placing P in a locked setting and restricting her access to the internet and social media. In those circumstances, the social worker considered it would be disproportionate to require P to continue living in the placement.
18. It is important that I record that, throughout the proceedings, P has challenged the local authority’s actions in a series of letters and emails, many of which are in the court bundle. I have read them all. These polite but insistent communications make crystal clear P’s consistent refusal to accept help and support to alter her living arrangements. She wants nothing to do with the local authority or any services it might offer her and wants to leave the placement to return to her old way of life. Those wishes are also expressed in all P’s dealings with local authority or other care staff involved with her. For example, on 23 November 2023, during a visit from the team manager, P said that she wished “to get my own accommodation and have my own life and to know you won’t be there”. She added that”I want to be left alone to be with my dad. I want to be in a house or a flat… You might not be happy with my life choices but it’s my life”.
As the local authority recognised when seeking the permission of the court to withdraw the proceedings:
19. […] the hearing marked an important crossroad in P’s life. Having spent it all so far under the influence and control of her father, this had been her first opportunity to live a life independently of him. However, P was either unable or unwilling to take that opportunity and had declined all efforts of support. The local authority recognised that safeguarding measures such as the residential placement – though necessary – had with the passage of time become disproportionate and that more draconian measures would be required to cut off all ties between P and her father. Given the strength and consistency of P’s will and the limited reason to believe that such measures would be effective, the local authority had come to the conclusion that further protective orders were disproportionate.
However, and importantly:
Given the risk of P returning immediately to her father, Miss Butler-Cole KC submitted that the court needed to be satisfied that neither the local authority’s obligations under the ECHR nor those of the court would be violated if the proceedings ended with no ongoing orders. She therefore invited me to determine whether ending the current protective measures would breach the State’s positive obligations. On a careful analysis of the future risks in the event of the discontinuation of protective orders, the local authority submitted that there was no real and immediate risk that P would experience degrading treatment by her father such as to engage Article 3 of the ECHR.
P’s mother made clear that she would “very much prefer C submitted that she would very much prefer the current orders to remain in force and feared that, once lifted, P would return to a life of chaos and coercion” (paragraph 20), but reluctantly agreed that the residential placement did not seem to have made any difference. The Official Solicitor, acting as P’s litigation friend, shared the analysis of the local authority.
Gynneth Knowles J then set out a detailed analysis of the nature of the State’s obligations under Article 3, drawing on the local authority’s position statement. I do not set it all out here, but one passage is particularly interesting. At paragraph 35, she cited the following:
“the toolbox of legal and operational measures available in the domestic legal framework must give the authorities involved a range of sufficient measures to choose from, which are adequate and proportionate to the level of risk that has been assessed in the circumstances of that particular case”: Tunikova and Others v Russia (55974/16, 14 March 2022 at [95]). A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State: O’Keeffe v Ireland (35810/09, 28 January 2014 at [149]).
In other words, and in the context of a risk posed by an identified third party, the ECHR requires that the State must have the power not only to punish the third party after harm has been caused, but also have a set of tools which allow it to take steps to prevent such harm from occurring in the first place.
Gwynneth Knowles J, endorsing the local authority’s application to withdraw the proceedings, identified that:
36. This is a difficult and sensitive case and I agree with Miss Richards KC that there are, in reality, no good outcomes for P. P’s mindset has not been altered during her time in the residential placement – she is as firm as ever about her desire to decline help from the local authority and to do what she wants. Sadly, she has no insight into the dysfunctional relationship that she has with her father and it is likely that, once she leaves the placement and whatever she might say about wanting her own place to live, P will be drawn back into his orbit and surrender herself once more to his control. I am wholly satisfied on the evidence before me that P is a vulnerable adult who lacks capacity because of the ongoing undue influence of her father. However, P’s refusal to engage and accept offers of help does not necessarily discharge the local authority of its statutory responsibilities.
37. The stark choice is thus between the cessation of the protective framework with the overwhelming likelihood that P will return to live with her father (in circumstances where it is unclear where they will live and how they will support themselves) or a further prolonged period of residential care which is likely to be as ineffective as the previous period in helping P gain insight into her circumstances and free herself from the undue influence of her father.
38. Applying the case-law cited above and on fine balance, the real and immediate risks to P – though very concerning – fall short of establishing a real and immediate risk of degrading treatment for Article 3 purposes. Whilst there appears to have been financial and psychological abuse of P by Y, he does not appear to have physically assaulted her and his treatment of her is not such as to cause anguish and inferiority capable of breaking P’s moral and physical resistance. Destitution – which P faces given her reluctance and that of her father to claim state benefits – is not sufficient to amount to degrading treatment. Even if I am wrong about all that and a real and immediate risk of engaging Article 3 exists, I find that the local authority has, in the recent past, taken all reasonable steps to negate that risk including bringing these proceedings and accommodating P in a residential setting. P has consistently refused all offers of help and accommodation and has failed meaningfully to engage with domestic abuse and mental health services. Further, though the police declined to intervene in April 2023, I consider that P would not presently support any criminal prosecution of Y for his behaviour towards her. In those circumstances, I endorse the view shared by the represented parties that it would be disproportionate to make further protective orders in respect of P. The inherent jurisdiction is not unboundaried and, given that all investigations into P’s circumstances have now concluded, there is no lawful justification for the continuance of protective orders. Further protective orders in circumstances where they are unlikely to manifestly alter P’s situation would represent an unjustifiable interference with P’s Article 5(1) rights to liberty and security of person. I am thus satisfied that, despite the risks to P’s welfare should she reject the offers of support from the local authority and return to live with her father, further orders regulating her residence or otherwise constraining her choices are unjustified and disproportionate.
39. The local authority made some proposals which it asserted were an appropriate discharge of their statutory obligations to P. First, it is proposed that the local authority will set up a prepaid card with a balance of £500 which it will make available to P via her advocate or the library where P spends much of her time. This will be a safety net for P should she wish to make use of it. Second, the local authority has agreed to withdraw the claim for state benefits it made on P’s behalf and to inform the Department of Work and Pensions that P should not be assumed to lack capacity to make any future application for state benefits. Third, a pack of information which might help P access help and support should she wish to do so has been prepared and will be given to P’s advocate to give to her in case P maintains contact with her advocate following her departure from the residential placement. All of the above represent a reasonable response to the reality of P’s situation and I am satisfied that they are an appropriate discharge of the local authority’s statutory obligations to P.
Gwynneth Knowles J concluded by thanking not only the advocates in the case, but the social workers “involved with P who have tried hard to engage her and promote true independence for her” (paragraph 40), but that:
41. Regrettably, I think it is almost inevitable that P will come to the attention of the authorities in future. I hope this will be in a context where she is seeking help to forge her own course in life, free from the undue influence of her father but I suspect that, unless something significant changes, future contact is likely to be at a time of crisis for P.
42. P should have access to a copy of my judgment if she wishes to read it. I wish her well for the future and, notwithstanding my endorsement of the consent order, I remain concerned about her wellbeing.
Comment
Given the calibre of those involved in the case, it appears clear that this must have been a case in which every identifiable potential cause of incapacity within the scope of the MCA 2005 must have been explored and eliminated, leaving this a ‘true’ inherent jurisdiction case.[2] Perhaps strikingly, though, the actual relief that was granted at the outset was essentially the same as it would have been had it been a case determined within the Court of Protection – i.e. an order requiring P to live apart from her father in a specified placement, and authorising her deprivation of liberty there. Similarly, on the facts of the case, it might well have made no actual difference to the outcome had she been found to lack capacity to make the relevant decisions for MCA purposes, because the court could well have reached the conclusion (in P’s name) that it was simply not in her best interests to seek to keep her at the placement where it was not achieving any good.
The more blurred the lines become between the inherent jurisdiction and the MCA 2005, the more some might think that it might be time to dust off Part IX of the Law Commission’s report on Mental Incapacity – when framing what became the MCA 2005, it always recognised that this could not stand in isolation, and it was necessary to have a set of “legal and operational measures [to] give the authorities involved a range of sufficient measures to choose from, which are adequate and proportionate to the level of risk that has been assessed in the circumstances of that particular case” (to use the language of Tunikova). Those measures were never taken forward, leaving the courts in the difficult position of having to craft them on an ad hoc basis.
[1] Note, this may seem confusing, but is correct. The inherent jurisdiction applies to a person who is unable to make their own decision (i.e. in a broad sense does not have the ‘capacity’ to do so), but who does not fall within the scope of the MCA 2005. The MCA 2005 only applies to those who cannot make their own decision (defined as being unable to understand, retain, use and weigh the relevant information and communicate any decision they have made) because of an impairment of or disturbance in the functioning of their mind or brain.
[2] For comparative purposes, I note that P might well be found to lack capacity for purposes of the equivalent legislation in Ireland, where there is no requirement for the inability to make the relevant decision to be caused by an impairment of or disturbance in the functioning of the person’s mind or brain.
