Birmingham, B4 6DS |
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B e f o r e :
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DA |
Applicant |
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EP (1) JP (2) RP (3) (by her litigation friend, the Official Solicitor) WARWICKSHIRE COUNTY COUNCIL (4) |
Respondents |
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2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
THE FIRST RESPONDENT appeared in Person
MR ABID MAHMOOD appeared for the Second Respondent
MISS NAGEENA KHALIQUE QC appeared for the Third Respondent
MR BENJAMIN HARRISON appeared for the Fourth Respondent
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Crown Copyright ©
HER HONOUR JUDGE CLAYTON:
(a) The case of ITW v Z [2009] EWHC 2525 sets out the following important points when evaluating what is in P's best interests:
"(i) The first is that the statute lays down no hierarchy as between the various factors … beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's 'best interests'.
(ii) The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.
(iii) The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of 'magnetic importance' in influencing or even determining the outcome".
(b) Whether or not a person has capacity to make decisions for herself, they are entitled to the protection of the European Convention on Human Rights; in this case, the Article 5 right to liberty and Article 8 right to respect for private and family life. Further, it is the aim of the UN Convention on the Rights of Persons with Disabilities to secure the full enjoyment of human rights by disabled people to ensure that they have full equality under the law.
(c) There is, however, no presumption in favour of a right to family life in the best interests analysis (K v LBX [2012] EWCA Civ 79).
The Evidence
The evidence of Ms Hunting
"There were at least three instances when the carer was managing specific tasks in relation to RP's needs - helping her to the toilet, helping her to get off the sofa and providing her with lunch - when EP took over these tasks in a way which I felt was trying to side-line the carer and impress upon the carer that EP's way was better because she knows her mother better. The carer on duty that day quietly stepped aside and let EP continue as she wished to do."
She gave further examples which she suggested were examples of EP's unwillingness to work cooperatively with the carers.
"It appeared as though EP is jealous of her mother seeming to be happy and comfortable with others. She does not trust the carers writing in the care log. She asked one of the carers if they are writing what they are told to write rather than an account of what has been done during that shift."
There is the description given by a carer of RP comfortably sitting on the sofa with her head resting on the carer's shoulder, but EP forced her to sit up, saying the first position was not comfortable for her, although RP had positioned herself there. It is commented upon by Ms Hunting that this sounded very much like the position that she had seen RP in on her first visit on 12th November.
The evidence of JP
The evidence of MP
The evidence of Mr Skidmore
The evidence of EP
The evidence of the independent social worker
"EP's lack of confidence in her mother being supported by anyone other than herself and the carers feeling intimidated and undermined by EP's attitude and behaviour towards them have led to inconsistencies in the way that RP has been cared for."
In the longer term, he concluded that EP should not live with her mother. He carried out a balance sheet analysis of the options and concurs with the view of Ms Hunting that RP should reside in extra care housing with a live-in professional carer provided by X Care Agency.
Analysis