Sheffoeld City Council v E & Anor, Court of Appeal - Family Division, December 02, 2004, [2004] EWHC 2808 (Fam)

Resolution Date:December 02, 2004
Issuing Organization:Family Division
Actores:Sheffoeld City Council v E & Anor
 
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This judgment was handed down in private but the judge hereby gives leave for it to be reported in this form.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the defendants must be strictly preserved.Case No: FD04P01830 Neutral Citation Number: [2004] EWHC 2808 (Fam)IN THE HIGH COURT OF JUSTICEFAMILY DIVISIONPRINCIPAL REGISTRY(In Private)The Law CourtsQuaysideNewcastle-Upon-Tyne, NE1 3LADate: 2 December 2004Before :THE HONOURABLE MR JUSTICE MUNBY- - - - - - - - - - - - - - - - - - - - -In the matter of the inherent jurisdiction of the Family Division of the High CourtAnd in the matter of E (an alleged patient)Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Robert Jay QC (instructed by Legal and Administrative Services) for the claimantMr Adrian Whitfield QC (instructed by Irwin Mitchell) for the first defendant EMiss Janet Waddicor (instructed by Howells) for the second defendant SNo Hearing Decision without oral argument on the basis of written submissions- - - - - - - - - - - - - - - - - - - - -JudgmentMr Justice Munby : 1. I have before me a preliminary issue arising in proceedings brought under the inherent jurisdiction of the Family Division of the High Court of Justice in relation to an alleged patient E. The proceedings were commenced by a Part 8 claim form issued on the application of Sheffield City Council (``SCC'') on 8 September 2004. SCC is the local social services authority with responsibilities for E. SCC commenced the proceedings because of its concerns about E's relationship with an older man S.The background2. E is a young woman of 21. She has hydrocephalus and spina bifida. SCC alleges that E functions at the level of a 13 year old, that she has limited independence skills and that she is very vulnerable to exploitation. S is 37. He is a Schedule 1 offender and has a substantial history of sexually violent crimes, including convictions for buggery of a minor for which he received a total sentence of 8 years' imprisonment. 3. E and S met in January 2004. E moved in to live with S in June 2004. At the beginning of September 2004 SCC discovered that E and S were planning to be married on 18 September 2004. Concerned that E's relationship with S had become abusive, and that E was at risk of domestic violence and sexual exploitation at S's hands, SCC began these proceedings, wanting to stop them marrying or associating and asserting that it is in E's best interests neither to marry nor to associate with S. SCC invokes the inherent jurisdiction: see In re F (Adult: Court's Jurisdiction) [2001] Fam 38 and Re S (Adult's Lack of Capacity: Carer and Residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235. SCC's case is that E lacks the capacity to make decisions about where she should live, about whether she should have contact with S and about whether she should marry S.4. The matter came before Coleridge J on 14 September 2004 when an ex parte order was made which, amongst other things, prohibited S from marrying E without the leave of the court. The Official Solicitor was ordered to conduct enquiries as to E's capacity ``to conduct this litigation ... to decide where she should live ... to decide whether she should have contact with [S], and the extent of that contact ... [and] to get married to [S]''. Coleridge J also directed that, if ``satisfied by medical evidence that [E] lacks capacity to conduct this litigation'', the Official Solicitor, subject to his consent, be appointed E's litigation friend.5. On 16 September 2004 a letter of instructions was sent to Dr M, a Consultant Psychiatrist in Learning Disabilities, inviting her to address each of these issues. Under the heading `Assessment to capacity', the letter, which I understand was in a form agreed between SCC and the Official Solicitor, set out what I am bound to say was a not particularly helpful analysis for Dr M of the law relating to capacity. Reference was made to Re MB (Medical Treatment) [1997] 2 FLR 426 and Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511. The letter continued:``In the Official Solicitor's view the information material to a decision about where E should live, whether or not she should marry and whether or not she should have further contact with [S] is:1 Information about E's understanding of the implications of marriage, the concept of marriage, sex, the ability to care for any children resulting from the relationship, the legal relationship between husband and wife, implications of marriage on finance and property rights.2 Information about any physical, psychological or emotional harm or distress which may be sustained as a result of further contact with [S] and/or the marriage.3 Information about the advantages and disadvantages for the individual and in her lifestyle or about the opportunities which further contact with [S] and/or marriage will provide in the short term, medium term and long term.4 Information about E's understanding of the gravity and implications of [S]'s previous criminal convictions, his acceptance of or lack of acceptance of guilt and the risk [S] poses of committing further sexual or violent offences in the future.5 Information about E's understanding of the weight to be attached to allegations made against [S] that may not result or have resulted in criminal convictions to date.''6. In relation to issues of capacity, Dr M was asked to answer the following questions:``1 Does E have the mental capacity to conduct litigation?2 Does E have the mental capacity, in accordance with the re MB test to decide:(a) whether or not she should have contact with [S] and whether she is able to assess the risk of contact with [S],(b) where she should live in the light of such a risk assessment,(c) whether or not she should marry [S] in the light of such a risk assessment?3 Is it likely that E will acquire capacity to make her own decisions in respect of these matters and if so, what is the likely timescale and what help or support could be given to that end?''7. Dr M was also asked to advise as to E's best interests. The letter correctly pointed out that:``The issue of capacity to make the relevant decision should be determined first. Only if the person is found not to have decision making capacity will it be necessary to address the best interest issue.''In relation to best interests, Dr M was asked to answer a number of questions including these:``If E lacks capacity to make her own decisions, please then advise as to best interests as follows: ... Marriage(a) Is it in E's best interests to enter into a marriage with [S]?(b) If not please (1) indicate why not (2) indicate whether any steps can be taken in the form of education or otherwise.''8. On 24 September 2004 Dr M produced a written report. She said ``At the present time I do not have sufficient information to complete my assessment in all the areas in which I have been instructed to complete a report''. She went on to say of E: ``At the present time I would only be prepared to give my opinion that she has the capacity to litigate.'' That opinion was expressed generally and appears to have applied to all aspects of the litigation.9. On 30 September 2004 the Official Solicitor filed a statement saying that he accepted Dr M's conclusion that E does have capacity to conduct the litigation and pointing out that he was therefore not able to act as her litigation friend. He left open for further consideration the question of E's capacity on the matters which are the subject of the litigation, saying, hardly surprisingly in the light of Dr M's report, that he was not in a position to present the court with a concluded view. Later the same day (30 September 2004) the proceedings came before Hogg J. She made an order declaring that E ``has the capacity to litigate'' and directed that Dr M was to file a final report on E's capacity by 28 October 2004. She also directed that the matter was to be listed for a final hearing on the first open date after 10 December 2004. (I understand that it has in fact been listed for hearing on 31 January 2005.) The order recited that E and S had agreed not to marry until further order or conclusion of the proceedings.10. On 6 October 2004 E's solicitors wrote to SCC proposing that the following questions should be put to the experts, including Dr M:``1 Has [E] the capacity to understand the nature of the contract of marriage generally (as opposed to the implications of marriage to [S])?2 Has [E] the capacity to understand the responsibilities created by the contract of marriage generally?3 Has [E] the capacity to give valid consent to marriage generally?''SCC's solicitors replied on 13 October 2004, saying that Leading Counsel considered that Dr M and the other experts ``should be asked to address the issue of capacity in the context of the particular decisions [E] apparently wishes to take. Your approach is, in his view, against principle and authority.''As has been pointed out, no authority was cited.11. On 18 October 2004 E's solicitors issued an application seeking an order for the determination as a preliminary issue of the appropriate questions to be put to Dr M and the other experts. On 21 October 2004 Her Honour Judge Finnerty ordered that the case was to be listed before me on 4 November 2004, with a time estimate of 3 hours, ``for the determination of a preliminary issue of the definition of capacity to give a valid consent to marriage.'' That date proved not to be convenient to SCC's Leading Counsel and I was asked if the hearing could be moved. Such was the press of business in my list that this was simply not possible. But I told the parties that, if they were all agreed, I was content to deal...

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