Despatches from the front line: some current problems
Louise Heath
Address by Sir James Munby, former President of the Family Division, to the LAG Community Care Law Conference, which took place on 12 October 2018.1Sir James was unable to attend the conference due to illness. This is the speech he would have given.
I begin with a disclaimer. I do not come with any ‘big thesis’ or even any very connected argument. What I have to say is more of the nature of a rumination on some current problems, I hope connected, if only loosely, with the theme of your conference: ‘Fundamental rights and social care’.
The things I want to talk about are, in large measure, prompted by certain cases that have come before me in court in recent months. But although those cases may be the hook on which I hang my thoughts, I must make clear that I am not going to spend much time analysing them – that must be a matter for others. And although I will touch on the Mental Capacity (Amendment) Bill, I will gladly leave it to others much more qualified than I am to explore and comment on its provisions.
My starting point, perhaps unsurprisingly, is the continuing fall-out from the Supreme Court’s decision in the Cheshire West case ([2014] UKSC 19).
On the one hand, the Supreme Court achieved a welcome degree of clarity on two fundamental matters:
First, in making clear that the three-part analysis in Storck2Storck v Germany App No 61603/00, 16 June 2005; (2005) 43 EHRR 96. provides the framework for every decision as to whether or not, in the context with which we are concerned, a person is deprived of their liberty so as to engage their rights and protections under article 5.
Secondly, in providing a definitive test – the ‘acid test’ – of whether component (a) in the Storck analysis – whether a person is ‘confined’ – is satisfied.
So far so good (unless you subscribe to the view that the Supreme Court got it wrong, an issue with which I am not going to engage).
The decision in Cheshire West has had a variety of consequences, some, but not all, of which have been playing themselves out ever since.
But the decision in Cheshire West has had a variety of consequences, some, but not all, of which have been playing themselves out ever since. Taking them in no particular order, I have in mind, for example:
The practical implications for public (primarily local) authorities and the courts (primarily, but, as we will see, not exclusively, the Court of Protection) of having to process, in an article 5 compliant manner, a vastly greater number of cases than had previously been envisaged.
Related to this, what is now recognised as the pressing need for a drastic overhaul of the deprivation of liberty safeguards, widely seen as being no longer, if they ever were, fit for purpose.
Engagement, really for the first time, with the related questions of how Lady Hale’s ‘acid test’ and, more generally, how the article 5 jurisprudence and components (b) and (c) in the Storck analysis, namely consent and state engagement, apply in relation to children.
This last has also focused attention on various jurisdictional issues that arise where the person in question is a child, for example:
whether the matter is one for the Family Court, the Family Division of the High Court, or the Court of Protection; and
in particular, the role of the Court of Protection in relation to children who are 16 or 17 years old.
Some of these matters, as you will appreciate, were being considered by the Supreme Court only last week.
In relation to what I have referred to as the practical implications of Cheshire West, and the related need for overhaul of the deprivation of liberty safeguards, I have little to say. And in any event, having had my fingers burnt by the Court of Appeal when I had the temerity in the Re X cases to suggest some solutions, I am the very last person to give you any helpful or reliable guidance. All I can do is offer some rather banal platitudes:
The combined effect of the decision in Cheshire West and the ever-increasing numbers of us who, because of our increasingly ageing population, are, at some time in our lives, going to be brought within the ambit of article 5, coupled with the article 5 requirement of regular reviews throughout a person’s life, is that we are going to be faced with an ever-increasing number of such cases.
The challenge is to craft a system and, more importantly, ensure that whatever system we end up with is sufficiently resourced, financially and with appropriately qualified professionals, to enable us to meet our article 5 obligations.
There is an inevitable tension between balancing resources and obligations. It is essential that we have a system which, in substance, meets what is demanded of by article 5, as interpreted by Cheshire West, without being so over-engineered that an understandable demand for justice for all does not end up, under the harsh realities of systems that are likely to remain under-resourced, as justice for only the few.
Whatever the appropriateness in principle of what is contemplated by the Mental Capacity (Amendment) Bill, the pessimist is likely to think that, in the final outcome, the proper resourcing of the system, whatever it may be, is going to be more significant and important than its structure.
As we will see, and I shall return to this shortly, some of these issues have reappeared in the context of children, where I have sought, I hope more successfully than my attempts in the Re X cases, to suggest the appropriate procedures to be adopted: Re A-F (Children) (Restrictions on Liberty) [2018] EWHC 138 (Fam); [2018] 2 FLR 319 and Re A-F (Children) (No 2) [2018] EWHC 2129 (Fam).
The implications of Cheshire West in relation to children have been considered in a number of judgments, particularly decisions of Keehan J, culminating for present purposes in his judgment in Birmingham City Council v D [2016] EWCOP 8; [2016] PTSR 1129. It subsequently came before us in the Court of Appeal: Re D (Parental Responsibility: Consent to 16-Year-Old Child’s Deprivation of Liberty) [2017] EWCA Civ 1695; [2018] 2 FLR 13; [2018] COPLR 1. It is now in the Supreme Court, so whatever I say comes with that heavy caveat.
These cases have many points of interest more to family lawyers than to others, so for present purposes I concentrate on the key points. The first, and fundamental, question is how Lady Hale’s ‘acid test’ applies in relation to children. It is a question that I had canvassed in my judgment in the Court of Appeal in Cheshire West, where the point did not in fact arise, which is why, no doubt, the subsequent decision of the Supreme Court was, if I may be allowed to say so, somewhat opaque.
I can best explain the issue, at least as I see it, by quoting what I said in Re D, paras 30–31:
30. … Take a typical child say three or eight years old (the precise age is immaterial). By typical, I mean a child subject to no physical or mental disabilities who is, broadly speaking, at the same developmental stage as most children of the same age and who is living with parents at home, without any local authority involvement, in the kind of circumstances in which, broadly speaking, most children of that age are accustomed to live in contemporary Britain. Now such a child is living in circumstances which plainly satisfy the Cheshire West ‘acid test’ – the child, to use Baroness Hale’s words, ‘is under the complete supervision and control of those caring for her and is not free to leave the place where she lives.’ But common-sense would plainly indicate that such a child is not, within the meaning of article 5, deprived of his or her liberty. But – and this is the key question – why not? Is it because (Storck component (a)) there is, nonetheless, no confinement? Is it because (Storck component (b)) there is, in accordance with Nielsen, an effective parental consent? Or is it because (Storck component (c)) there is no involvement by the state? The short but incomplete answer, that whatever may be said in relation to Storck components (a) and (b), there can be no deprivation of liberty because (Storck component (c)) there is no state involvement, although it suffices for the particular case I have postulated does nothing to resolve the more difficult underlying questions, brought into sharp focus if I change the facts slightly.
31. Let us suppose that precisely the same child is living in precisely the same circumstances but with this difference: the child is living with local authority approved foster-parents in circumstances where, for whatever reason (the precise reason is immaterial), the child's own parents either cannot or have not consented to the placement. Now the child is living in circumstances which plainly satisfy the Cheshire West ‘acid test’. The state (Storck component (c)) is plainly involved. There is (Storck component (b)) no question of a Nielsen consent, because the child's parents have not consented and, as a matter of domestic law (see below), the foster carers lack the authority to consent. Does it follow that the child is therefore within the meaning of article 5 deprived of his or her liberty, and, if not, why not?
My view was, and is, that the answer to this question is of considerable importance, both as a matter of principle and because of the pragmatic implications:
It goes to the heart of the question as to how article 5 applies to children.
It brings back into sharp focus the meaning and effect of the much debated and often questioned decision in Nielsen.3Nielsen v Denmark App No 10929/84, 28 November 1988; (1989) 11 EHRR 175.
It has, as will become clear in a moment, significant implications for family law.
And, if the answer is that in this context article 5 in principle applies to all children from the moment of birth, that has very serious resource implications given that there are, at any given time, tens of thousands of children in the care of the state.
The provisional view we indicated (see paras 32, 158, compare 154), for the point again did not arise for decision, was that, adopting Lord Kerr’s analysis and language in Cheshire West:
39. … the situation of the ‘young’ or ‘very young’ as he describes it does not involve a ‘confinement’ for the purposes of Storck component (a), even though such a child is living in circumstances which plainly satisfy the Cheshire West ‘acid test.’ …
When the point subsequently arose for decision, I came to the same conclusion: Re A-F, para 29.
At what age does the 'acid test' in Cheshire West first become applicable to a child?
Now the consequence of this approach is, of course, immediately to raise two further questions:
First, at what age does a child cease to fall within this category of the ‘young’? In other words, at what age does the ‘acid test’ first become applicable to a child?
Second, for how long through subsequent childhood will a parental consent suffice for the purposes of Storck component (b)? Specifically, does the parental ability to supply a Nielsen consent end when the child reaches 16? Or, in the case of a child who is not ‘Gillick competent’,4Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112. does it last until the child has reached the age of 18?
The first of these questions was at the heart of Re A-F. However clear the underlying principle may be (and it is necessarily expressed at a high level of generality), its factual application is far from easy, not least bearing in mind that the extent to which children are controlled, supervised and protected has varied over time and also, I suspect, varies very much, even today, from place to place. As I said (para 31):
… another reality of the modern world [is that] children nowadays tend to live more regulated and controlled lives than children of the same age would have been used to a generation or two back. The ubiquity of the motor vehicle in modern Britain, accompanied by changes in social attitudes as to what is or is not ‘responsible parenting’, mean that the street is no longer as safe (or seen as being as safe) an environment as it once was. It is no longer as safe (or seen as being as safe) as it once was for children to play in the street, to be allowed to roam or even to go to and from school under their own steam.
Picking up Lord Kerr’s analysis in Cheshire West, and applying his language, I said (para 33):
… whether a state of affairs which satisfies the ‘acid test’ amounts to a ‘confinement’ for the purposes of Storck component (a) has to be determined by comparing the restrictions to which the child in question is subject with the restrictions which would apply to a child of the same ‘age’, ‘station’, ‘familial background’ and ‘relative maturity’ who is ‘free from disability’.
Well, so far so good (perhaps – we await the Supreme Court), but what in the real world does this come to? The best I could come up with was this (para 43):
Inevitably, one has to proceed on a case-by-case basis, having regard to the actual circumstances of the child and comparing them with the notional circumstances of the typical child … Recognising that this does scant justice to the very thoughtful submissions I have had … the best I can do, by way, I emphasise, of little more than ‘rule of thumb’, is to suggest that:
i)A child aged 10, even if under pretty constant supervision, is unlikely to be ‘confined’ for the purpose of Storck component (a).
ii)A child aged 11, if under constant supervision, may, in contrast be so ‘confined’, though the court should be astute to avoid coming too readily to such a conclusion.
iii)Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion.
That said, all must depend upon the circumstances of the particular case and upon the identification by the judge in the particular case of the attributes of the relevant comparator as described by Lord Kerr.
If this analysis is correct (and bear in mind that the Supreme Court may of course reject it) the burdens on the system of having to deal with these cases on a ‘case-by-case’ basis – and the anecdotal evidence is that, just looking to those children who are within the care system, they may well run into the thousands – may be considerable. But so, as I have pointed out, are the burdens of adopting the other approach. So, whichever approach turns out to be correct, there are potentially very serious implications in terms of the proper resourcing of article 5 compliant systems.
The second of the two questions I have identified was at the heart of Re D. At the very outset of the analysis, an important, if often overlooked, principle is central. The question at issue is the ambit of parental power and responsibility; specifically, whether parental power extends to giving consent to the ‘confinement’ of a child who is 16 or 17 years old. Now that is not something to which either article 5 or the article 5 jurisprudence or even Nielsen provides the answer, for, as I said (para 50):
For the purpose of applying the Nielsen principle one first has to identify what are the relevant ‘rights of the holder of parental authority’, and that … is plainly a matter to be determined by the relevant domestic law … before one can turn to consider the application of article 5 and the Strasbourg jurisprudence …
If you want better authority for the fundamental underlying point, one needs look no further than the judgment of Lord Reed in R (Osborn) v Parole Board; R (Booth) v Same; Re Reilly [2013] UKSC 61; [2014] AC 1115, paras 54–63. Dare I say it, but this point is not always as well appreciated as it should be.
A lengthy analysis of what is, after all, fundamentally a question of domestic family law, led to the conclusions:
that the answer is to be found in the decision of the House of Lords in Gillick; and
that there is nothing, either in the Mental Capacity Act 2005 or in Cheshire West, to displace the application, in this context, of the Gillick principles.
Hence, in a case where the child had not yet acquired ‘Gillick capacity’, the parental ability to provide a Nielsen consent extended beyond the child’s 16th birthday. We await the Supreme Court’s decision.
In passing, I drew attention (para 89) to the fact that, somewhat surprisingly, the courts have for many years in article 5 cases been debating this important question of domestic law – the ambit of parental responsibility, particularly in relation to the older child – without any reference to Gillick. Why might this be?
The answer, to be blunt, is that these cases lie at the intersection of three different bodies of domestic law – mental health law, mental capacity law and family law – where judicial decision-making is spread over a variety of courts and tribunals which, by and large, are served by different sections of the legal professions too few of whom are familiar with all three bodies of law. The existence of these institutional and professional silos has bedevilled this area of the law at least since the earliest days of the Bournewood litigation. One day, someone will write a critical, analytical history of all this – and it will not, I fear, present an altogether reassuring picture.
As I have mentioned, and this was another key issue in Re A-F, another consequence of Cheshire West has been focus on the jurisdictional issues that arise where the person in question is a child, including:
whether the matter is one for the Family Court, the Family Division of the High Court, or the Court of Protection; and
in particular, the role of the Court of Protection in relation to children who are 16 or 17 years old.
In Re A-F, these issues arose because the children were all the subject of care orders made under Part IV of the Children Act 1989. Now applications for care orders are made to the Family Court, not to the Family Division of the High Court, but where the child’s proposed placement pursuant to the care order does, or may arguably, involve the child being ‘confined’ within the meaning of Storck component (a), the issues under article 5 can be determined only by the Family Division, exercising the High Court’s inherent jurisdiction in relation to children. And, although many circuit judges sitting in the Family Court are authorised under s9 of the Senior Courts Act 1981 to sit also in the High Court, many are not. So, one may be faced not merely with proceedings in two different courts but proceedings before two different judges.
I will not go into the detail – which is primarily a matter of interest only to family lawyers – but I sought to suggest solutions designed, so far as possible, to streamline the process, in particular by co-ordinating the proceedings in the Family Court and the Family Division.
A matter which is, perhaps, of more interest to you, is the role of the Court of Protection in relation to children who are 16 or 17 years old, and the related question of whether, in the kind of case exemplified by Re A-F, the Family Division should transfer the proceedings to the Court of Protection. This is a topic on which there seems to be little authority; perhaps, in the real world, pragmatism and consensus mean that the problem is more apparent than real. If you want to know more of my thinking, then I suggest you read both Re A-F and Re A-F (No 2).
Far from being the end, Cheshire West has spawned a number of perplexing issues in an ongoing process of litigation that continues to throw up new and previously unexplored problems.
What this probably over-lengthy rumination has brought out is that, far from being the end, Cheshire West has spawned a number of perplexing issues in an ongoing process of litigation that continues to throw up new and previously unexplored problems. I suspect that, whatever the decision of the Supreme Court, and whatever the legislative solutions, previously unexplored, if fundamentally important, problems will continue to tax us. Take one obvious and, in the real world, very common situation.
An elderly adult with dementia lives at home with a partner or relative who, to protect the person with dementia, reasonably, and indeed, as a matter of obvious necessity, imposes a domestic regime which satisfies Lady Hale’s ‘acid test’. In doing so, the partner or relative is acting perfectly lawfully under the doctrine of necessity first identified by the House of Lords in Re F, but that does not mean that the partner or relative has, as a matter of domestic law, any power to ‘consent’ on behalf of the person with dementia. In such a case, the application of article 5 will, accordingly, turn entirely on Storck component (c) – is the state sufficiently engaged, albeit that the care is being provided by the family in the setting of the family home?
The answer is far from obvious; the implications, given the likely number of people in this kind of situation, are potentially enormous. To find the answer, there will need to be a greater focus than hitherto on what it is that does, or does not, sufficiently implicate the state so as to bring the protections under article 5 into play. Is it enough that the local authority knows of the arrangements? Does it matter whether the local authority is providing services or assistance in accordance with the care legislation? I do not pretend to know, let alone to venture an answer. My point is simply that there is still much to be explored as to what, in this kind of context, article 5 means and how it operates.
Enough of Cheshire West and article 5. Can I turn to a completely different topic?
As you all know, the Supreme Court has recently reaffirmed the principle that, absent statutory provision to the contrary, the ambit of judicial decision-making in the Court of Protection is constrained by the extent of the resources made available by other public bodies: N v A Clinical Commissioning Group and others [2017] UKSC 22; [2017] AC 549. The principle, of course, is well established, going back to the decision of the House of Lords in A v Liverpool City Council in 1982. So, the Court of Protection cannot direct that resources be made available or that services be provided; it can merely seek to persuade.
This raises the very obvious question: how far can the judge go in seeking to persuade? I had sought to answer the question when the case was in the Court of Appeal: Re N (An Adult) (Court of Protection: Jurisdiction) [2015] EWCA Civ 411; [2016] Fam 87:
34. … the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
35. That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once … How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
The principle is impeccable, but all too often the consequences are unsatisfactory. The Family Court charged with the duty of furthering a child’s welfare, or the Court of Protection charged with the same duty in relation to an incapacitous adult, is denied the necessary tools to do so.
In the context of children there have been, unhappily, too many examples of the problems:
One is exemplified by the serious shortages, regularly all too apparent to too many family judges, of secure accommodation and mental health services (whether residential or in the community) needed by ever-increasing numbers of disturbed, sometimes very disturbed, adolescents. For a recent example, which achieved some notoriety, see Re X (A Child) (No 3) [2017] EWHC 2036 (Fam); [2018] 1 FLR 1054; see, also, Re Z (A Child) [2018] EWFC 25 and, for the most recently expressed concerns of the Court of Appeal, Re T (A Child) [2018] EWCA Civ 2136.
Another is exemplified by cases, of which I have had two recently (though there are, as yet, no publicly available judgments),5But see now Re H (Children) [2018] EWFC 61. where very young and gravely disabled children living at home needed medical as well as social care and suitable accommodation, thus engaging the responsibilities of the clinical commissioning group, and the local authority and the housing authority.
I suspect, though my own recent experience does not extend to such cases, that similar issues also arise quite frequently in the Court of Protection.
Recent experience suggests that, in relation to children, such cases are being transferred ‘up’, to judges of the Family Division, or even to the President, because of a belief that ‘senior’ judges have more ‘clout’ and are thus more likely to be able to ‘persuade’ public authorities to do what is said to be the ‘right thing’. One can understand what motivates desperate parents to propose, and less senior judges to agree, to such transfers, but I have to say that I find the practice deeply troubling. Acceptable ‘persuasion’, if pushed too far or prolonged too long, can all too easily shade into unacceptable ‘compulsion’.
And there is, at the end of the day, a profoundly troubling moral question. As I said in Re X (A Child) (No 4) [2017] EWHC 2084 (Fam); [2018] 1 FLR 1072, para 18:
Conscious of the dangers of falling into the fallacious trap of post hoc ergo propter hoc, I cannot escape the powerful feeling that, but for my judgment [in Re X (No 3)], the steps subsequently taken would have been neither as effective nor as speedily effective as appears to have been the case. This, however, is not a matter for congratulation; on the contrary, it is, of itself, yet further cause for concern. The provision of the care that someone like X needs should not be dependent upon judicial involvement, nor should someone like X be privileged just because her case comes before a very senior judge. I emphasise this because a mass of informed, if anecdotal, opinion indicates that X’s is not an isolated case and that there are far too many young women in similar predicaments. How are they to be protected?
Re X was an extreme case, where I was confronted with expert evidence establishing a very high risk of successful suicide if suitable clinical provision was not found very quickly. That provision was in fact found, but at what cost, perhaps, to some other child whose case was not before me and of whom I could know nothing? This, after all, is the very point which underlies the principle in A v Liverpool City Council and N v A Clinical Commissioning Group.
There are occasions where a judge in a family court or in the Court of Protection is duty-bound to act even if the prime responsibility lies elsewhere. I am unrepentant.
But what is one supposed to do? What is the alternative? Wash one’s hands and wait for an inquest, followed by much hand wringing, ‘we have all learnt lessons, it will not happen again’? I think not. There are occasions, and surely Re X was one, where, pace Lord Sumption, a judge in a family court or in the Court of Protection is duty-bound to act even if the prime responsibility lies elsewhere. I am unrepentant.
If one ponders cases like this – and there are far too many of them, even if not all so extreme as Re X – it might be thought obvious that we face serious problems to which, at present, we have no effective solutions. What are the problems? And what can we do about them?
The first question, I am the first to admit, is much easier to answer than the second, particularly in these times of austerity, when the relevant budgets are, and are likely to remain for quite some time yet, under relentlessly heavy pressure. Child care and adult social care services are both under intolerable, and, one fears, unsustainable, pressure, essentially the product of ever increasing demand at a time of (at best) static and (in reality) declining resources.
But I had better say no more – to go further would be to enter the realm of politics into which not even a retired judge should venture.
1     Sir James was unable to attend the conference due to illness. This is the speech he would have given.  »
2     Storck v Germany App No 61603/00, 16 June 2005; (2005) 43 EHRR 96. »
3     Nielsen v Denmark App No 10929/84, 28 November 1988; (1989) 11 EHRR 175. »
4     Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112.  »
5     But see now Re H (Children) [2018] EWFC 61»

About the author(s)

Description: Sir James Munby - author
Sir James Munby, former President of the Family Division.