England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE McCULLOUGH: J is now 18 years and 8 months old. He was born on [a date in] 1978. He is presently a patient. In any report of this case, he must not be referred to other than by his initial, and nothing must be published which identifies him.

2. Unfortunately, he has, since sometime in the middle of 1996, from time to time manifested signs of mental disorder. When he was living with his mother, Mrs F, in Liverpool in July 1996 he disappeared, it transpired, to London. She was told that he had been charged in London with assault and disorderly behaviour. He appeared before a youth court. Those proceedings were dropped. He returned to his mother's house. She and Mr A, with whom she lives, became concerned about his mental state, and on 30th August, they consulted his general practitioner. As a result, on 31st August, J was admitted to hospital for assessment under section 2 of the Mental Health Act 1983.

3. On 10th September Mental Health Review Tribunal rejected an application for his discharge. On 28th September he returned to his mother's home for a period of leave.

4. On 14th October he was readmitted to hospital and was there for some 7 or 10 days before, once again, returning to his mother's home.

5. On 29th October, his consultant psychiatrist expressed the view that his condition showed a marked improvement. All was not well for very long. On 17th December his mother and Mr A warned him about his behaviour: he was being aggressive and uncooperative. He left home.

6. On 24th December he turned up at his grandmother [Mrs B's] house. She had looked after him for a number of years, the precise number is in dispute, when he was very young. He stayed with her until 6th January, and he then returned for one night to his mother's house.

7. On 7th January a community psychiatric nurse visited him at his mother's house, but he reacted badly and left. It seems that he then went back to London, because his mother learned on 20th January that he was there. He had been arrested and charged with common assault. She went to London the following day and he, presumably having been given bail, returned with her. He did not stay for long. Sometime between 26th and 29th January he and his mother were in confrontation and he went off to his grandmother's house once more.

8. By then, or very soon after, there was once more obvious concern about his mental condition, and an assessment of it began in the early days of February.

9. On 5th February J's mother learned from a conversation with the social worker and community psychiatric nurse involved with him that they were considering making an application for his admission to hospital under section 3 of the Act. This admission for treatment authorises in certain circumstances. His mother said that such a step should not be taken without a full discussion.

10. On 5th and 6th February Dr Poole and Dr Gardner saw J and recommended that he be admitted. By 7th February the local authority had formed the view that J's 'nearest relative' for the purposes of the Act was not his mother, as they had hitherto believed, but his grandmother. Mrs F again made it plain that she disagreed with the proposed application. She wrote to the Social Services Department, to Dr Poole and, indeed, to others to that effect and said that she was still J's 'nearest relative', and that her own mother, was not. He was, nevertheless, admitted to hospital, Windsor House, later on 7th February.

11. This application by Mrs F for leave to move for judicial review was made on 28th February. It was supported by an affidavit from her. Leave to move was granted by Collins J on 14th March. The City Council have filed affidavits from two of its social workers,

12. Mr O'Hare and Miss Blackburn and there is a second affidavit in response from Mrs F.

13. Meanwhile J has remained in hospital. His progress has been good. He has had three recent spells of weekend leave. Each has been spent with his mother, not his grandmother. The council having recently

14. A patient's "nearest relative" holds an important position for the purposes of the Act. He or she may make applications of various kinds affecting the patient and may object to other courses of action. It is important that there shall be someone closely related to the patient who can act within the scheme of the Act in ways which he or she conceives to be in the patient's best interests.

15. The expressions "relative" and "nearest relative" are defined in section 26 of the Act. The relevant parts of section 26 are these:

16. That has this consequence. If J was at the material time ordinarily resident with his grandmother, or if he was being cared for by his grandmother at that time, then for the purposes of the Act, his grandmother, rather than his mother, was be his "nearest relative".

17. Who was his "nearest relative" was a matter of considerable importance at the beginning of February because of the terms of section 11.

18. So far as material, this says:

19. J's grandmother did not object to the making of an application under section 3 by an approved social worker, but J's mother did. If she was his"nearest relative" she could have prevented such an application being made unless an order were obtained from the county court displacing her from that status.

20. Section 29 of the Act says:

21. Thus, the position with which the local authority was presented at the beginning of February 1997 was this. If Mrs F, J's mother, were the "nearest relative", a social worker could not make an application for admission under section 3 unless an order had first been obtained, in accordance with section 29, from the county court. If Mrs F were no longer the "nearest relative", because his boy's grandmother, Mrs B, had become the "nearest relative", then such an application under section 3 could go ahead without the need to make any application to the county court.

22. Initially, as I have said, the local authority's social workers took the view that the "nearest relative" was Mrs F. By the time the assessment was completed on 7th February, they had reached the view that, having regard to the information they had obtained from the grandmother, from conversations with Mrs F and Mr A and, indeed, J himself, the "nearest relative" had become his grandmother. This view was formed after all the information had been taken into account and after legal advice had been taken.

23. The phrase "ordinarily resident" appears not only in the Mental Health Act 1983, but in a variety of other Acts of Parliament in different contexts. It does not necessarily bear the same meaning in relation to each different subject matter. General guidance about what is meant by"ordinary residence" has been given by Lord Scarman in Shah v. Barnet London Borough Council [1983] 1 All ER 226 at 235:

24. In relation to an unmarried man of 18 who lives with one of his parents, that parent is his "nearest relative". If he leaves home and goes to live with another relative, that relative will only become his "nearest relative" if the conditions of section 26(4) are met -- in other words, only if his residence with that other relative can be regarded as his "ordinary residence" or, if it can be shown that that other relative is caring for him. If he leaves home, but takes up no other place of "ordinary residence" and no other relative is caring for him it does not follow that he has no "nearest relative". The structure of section 26 is such that the parent with whom he was living will continue to be his "nearest relative".

25. Bearing in mind the consequences of taking from a parent the status of "nearest relative", it is incumbent upon anyone who has to make a judgment about the matter, to bear in mind the importance attaching to the "nearest relative" in the Mental Health Act 1983.

26. In J's case the person acting on the Council's behalf on whom the task of making this assessment in early February principally fell was Mr P.E. O'Hare, a social worker approved under the Act. He had contact with J from September 1996. Mr O'Hare consulted

27. Mrs B, 5th February, and she gave him a good deal of information as to what, according to her, had happened from 24th December onwards.

28. Mrs B told him that J had arrived at her home on that date and asked if he could stay, as his mother had thrown him out and he had nowhere else to go. He had stayed with her until he disappeared on 3rd January for a couple of days, and then on either 5th or 6th January he had arrived back at Mrs B's home. Thereafter she rang his mother and he reluctantly agreed to return to her home. Mrs B said that this was in order to keep the peace and minimise her own distress. So J spent the night of 6th January at his mother's house.

29. After J left his mother's house on 7th January

30. Mrs B believed he had spent several nights sleeping rough. Mrs B said that when he returned to her on 29th she had repeatedly asked him if he would consider going back to his mother's home, but he consistently refused to do so.

31. Mr O'Hare speaks in his affidavit of visiting

32. Mrs F and Mrs A on 5th February and spending more than three hours with them. It seems that the principal topic of discussion was whether J needed hospital treatment. Mrs F said not. She was of the view that she could continue to look after him. The discussion was wide ranging, as one would expect considering its length. At one point Mr A told the community psychiatric nurse to leave the house, which he did. As to why J was at his grandmother's house, there was, says Mr O'Hare, some vagueness in the response. I quote:

33. At this point, Mr O'Hare considered that the "nearest relative" was Mrs F.

34. A meeting was arranged so that Mrs F could

35. Later on 6th February Mr O'Hare went to Mrs B's house. J's general practitioner and Miss Blackburn were there. Certain further information was imparted by Mrs B. The accuracy of it is disputed by Mrs F, but this is what it came to. Mrs B said that her daughter had visited the previous night and asked J to return home, but he had refused and had chosen to stay with Mrs B. Mrs B said that while J was being brought up by Mrs F (which Mrs B said was from the age of 8) he had stayed with her, Mrs B, on many occasions. Mrs B reiterated much of what she had said before, but added this. Prior to 6th January J had visited home to retrieve his clothing and other belongings but found the locks had been changed and the windows secured. He was unable to retrieve his clothing and possessions, and she, Mrs B, complained that his mother was refusing to hand them over. Mrs B left Mr O'Hare in no doubt that she was caring for J both over the Christmas period and in the recent days since his mental health had again deteriorated.

36. J was there on 6th February. Mr O'Hare said this of J:

37. His meeting with Mrs F lasted for lasting a further three hours. The position was put to Mrs F. She was still insistent that she could care for J at her home. Mr O'Hare puts it like this:

38. When I put it to [Mrs F], how would she care for [J] given his mental health state and his refusal to return to her home I felt that her responses showed a lack of insight into the mental health care that

39. On 7th February Mr O'Hare discussed the position with Miss Blackburn, and it was decided to identify

40. Mrs B as the "nearest relative". She was so informed, as was J, and his admission to hospital took place at 1.30 p.m. on that date.

41. At the end of his affidavit, Mr O'Hare says this:

42. The affidavit from Miss Blackburn, says that on 7th February she took legal advice, as a result of which Mr O'Hare considered Mrs B to be the "nearest relative".

43. In her submissions on behalf of Mrs F, Miss Richards makes the point that, judged against the very detailed history that Mr O'Hare recounts, he must inaccurate in saying, towards the end of his affidavit, that J had made perfectly clear to him, during his interviews with him (in the plural) throughout the assessment process that he would not return to his mother's house and that (as Mr O'Hare said in a later paragraph) following his interviews with J (in the plural), he was satisfied that he had been cared for by his grandmother and had made clear his wish to maintain contact with his grandmother over his mother.

44. The history of events in early February, earlier in his affidavit only refers to Mr O'Hare seeing J on 6th February (when he was hostile, suspicious, thought disordered, distracted and responding to questions in a way that did not make sense) and on 7th February.

45. Miss Richards' point is that during the assessment process he had spoken to J once, and this was when he was thought disordered etc on 6th February.

46. Miss Harding, who appears for the council, says that the word "interviews" used by Mr O'Hare referred to seeing J both on 6th February (when he was hostile, suspicious and thought disordered) and on 7th, when he spoke to Mr O'Hare to the same effect. Any conversation that Mr O'Hare had with him on 7th February cannot, however, have played any part in the decision making because on 7th February he only spoke to J after the decision had been taken. The reality is that he had only had the one conversation with J during the assessment process. Since this was when he was thought disordered etc it seems to me that little, if any, attention should have been paid to what J was then saying.

47. Therefore, I think Miss Richards has made good her submission that Mr O'Hare, no doubt unwittingly, appears, when making his assessment, to have assumed that he had more interviews with J than he had, and that be attached weight to what J had said on an occasion when his words were worth little or nothing.

48. Miss Richards makes the further point that the local authority do not seem to have considered the possibility that, having reached the conclusion that J was no longer "ordinarily" resident with his mother by early February, it may be that he was not "ordinarily" resident anywhere. I would, of course, accept that if by then he was ordinarily resident somewhere it was not unreasonable to conclude that it was not with his mother. But this does not diminish the force of Miss Richards' point.

49. Obviously there are circumstances in which a man may change his one's place of ordinary residence between a Monday and a Tuesday. Take, for example, the young son who leaves home and moves into a flat of his own intending to live their permanently. But each case has to be judged on its own facts.

50. This young man did not stay permanently from 24th December onwards with his grandmother. Between 24th December and 7th February, when the assessment was made, he had stayed in a number of places. One does not know where. He had been to London. It may be that he slept rough for some time. Perhaps he stayed with one or more friends. The council should, in my judgment, have considered, not just the choice between whether he was ordinarily resident with his mother or with his grandmother. They should have considered also the possibility that he may not have been ordinarily resident anywhere and should specifically have asked themselves - bearing in mind his itinerant lifestyle, his lack of stability and the condition of his mental health - whether he really had settled down sufficiently at his grandmother's for her home to be regarded as his place of ordinary residence.

51. The council's decision was not only taken on the basis of ordinary residence. It was also taken on the basis that Mrs B was caring for him at the relevant time.

52. In the case of a patient who leaves the home of his parent(s) and goes to live with another relative, the importance which attaches to the status of is equally to be borne in mind when considering, for the 26(4), both whether there has been a change of"ordinary residence" and whether there has been a change in the identity of the person"caring" for him. I have already referred to Lord Scarman's guidance about the concept of"ordinary residence". A place of"ordinary residence" is one adopted for settled purposes as part of the regular order of life. In my judgment the quality of regularity is equally important when considering, for the purposes of section 26(4), whether there has been a change in the identity of the person who is to be regarded as caring for the patient. In such a case it will be necessary to take into account the duration, continuity and quality of the care afforded by the relative under consideration as having assumed the role hitherto played by the patient's parent(s) and also the intention of the patient himself.

53. I have considerable sympathy with the council, who did not have a lot of time in which to decide whether there had been a change in J's "nearest relative" and who were faced with conflicting accounts from his mother and his grandmother, between whom there was more than a little hostility. I find, however, that neither in relation to J's "ordinary residence" nor in relation to whether there has been a change in the person "caring" for him, did they address all of the questions which should have been considered before concluding that the identity of J's "nearest relative" had changed.

54. Miss Richards also submitted that the council should have made more inquiries than they did of Mrs F, particularly after they had been given further information by Mrs B on 6th February. Miss Richards said they did not put to Mrs F what Mrs B had told them.

55. I am not prepared to allow her to rely on that point, because it was not made in the grounds of application. There was nothing to alert Mr O'Hare or Miss Blackburn to the fact that it was going to be taken, and thus they were denied the opportunity to give their version of the extent to which, if at all, these matters had been canvassed with Mrs F during their long meeting with her on 6th February. Miss Richards specifically said that she did not want the hearing adjourned to enable the council's witnesses to deal with this additional point.

56. Miss Richards also submits that the council deliberately decided to treat Mrs B as the "nearest relative" when, in their own judgment, Mrs F was the nearest relative. This amounts to an allegation of deliberate bad faith in order to obviate the inconvenience of making an application to the county court under section 29. I am entirely satisfied that the council's officers did nothing of the kind, and I am only that the point was taken and persisted in. Enough has, however, been said to show that this decision was taken unlawfully.

57. What, if anything, this conclusion does to J's status as a person detained under section 3 I do not know. It may be, and indeed I think it highly likely, that today's hearing has achieved nothing of any practical value. I say so because the council have made it quite plain that they now regard Mrs F as J's "nearest relative" and that unless circumstances change, this will continue to be the position. They intend to inform her of the details of J's treatment and progress, they intend to involve her in the decision to be taken next week as to whether he should be further detained. J's position will then be reviewed in the light of the opinions of the doctors and others involved in his case.

58. I do not know whether it is contemplated that an application for habeas corpus will be made on J's behalf. When I asked Miss Richards this morning what was the purpose of hearing this motion, she referred to this possibility, saying that it might be possible for J, whom she does not, of course, represent, to make such an application through a suitable next friend, perhaps the official solicitor. Should his next friend decide to make such an application, I can foresee the possibility that, even if the court should hold that his detention is unlawful, because the application under section 3 was made when the "nearest relative" was in opposition to it, the court would adjourn the hearing to enable the hospital managers to show cause why J should not be released, as was proposed by Sir Thomas Bingham M.R. in Re S-C [1996] QB 599 at 612.

59. For what it is worth, the application succeeds.

60. MISS RICHARDS: My Lord, that leaves the issue as to relief. My Lord, the relief sought in the notice of application is on page 2 of the bundle, and I would ask your Lordship, in the light of your Lordship's findings----

61. MISS RICHARDS: It is at page 2 of the bundle. I would ask you to order certiorari to quash the decisions and to grant a declaration. My Lord, my learned friend and I could sort out the wording.

62. MR JUSTICE McCULLOUGH: I am not going to give you a declaration that Mrs F was at the material time the nearest relative, that is not what I have held. I have simply held that the decision was not taken in the way that it should; in other words, the question is really undetermined. It is of course now totally academic having regard to the decision which has been taken as to the present situation. I think the most that I can do is to make a declaration that the determination on 7th February 1997 that the nearest relative was the grandmother was not made in accordance with law.

63. MISS RICHARDS: My Lord, I would be happy with that. It follows from your Lordship's judgment----

64. MR JUSTICE McCULLOUGH: That is as far as I am prepared to go.

65. MISS RICHARDS: My Lord, I would ask for relief in those terms, and also for the Applicant's costs.

66. MR JUSTICE McCULLOUGH: Why should you have costs? The whole thing, in my judgment, is nothing other than academic.

67. MISS RICHARDS: My Lord, there are two issues: there are the costs up until today and the costs of today. It was not until this morning that the Respondent agreed that it would treat the Applicant as the nearest relative from now on. So certainly it cannot be described as being academic up until today.

68. MR JUSTICE McCULLOUGH: What do you say about the costs today beyond, as it were, walking into court at 11.30 or whenever it was?

69. MISS RICHARDS: All I can say in that regard, my Lord, is that the Applicant succeeded, that the decision was unlawful and normally costs would follow the event. I have already addressed your Lordship on the issue of whether it was or was not academic, but I cannot add to that. Therefore, clearly, it is your Lordship's view that it was academic in terms of the argument today, and it is entirely open to your Lordship to make no order as to costs in relation to those costs, but it was not until this morning that a principal issue as to who is the nearest relative was determined.

70. MR JUSTICE McCULLOUGH: Miss Harding, what do you say about that? You did not make your concessions until this morning; so it was only this morning at 11.30 that the question of a hearing actually became academic?

71. MISS HARDING: As soon as I learned the factual information about the amount of time that J spent with his mother recently, I 'phoned my learned friend and said, she is plainly the nearest relative now. I agree I did not then say, "and we will declare this in open court". Subsequently----

72. MR JUSTICE McCULLOUGH: Let me ask you, did they have any obligation to tell you that for the last three weekends he had been staying with his mother? I do not think so.

73. MISS HARDING: No. I suppose, the basis upon which that decision was made arose after the passage of time, and that was when it seemed that J had healed the rift, and that he was spending all his free time with his mother and not his grandmother, but that is not the basis on which your Lordship has made his decision in any event.

74. I accept that the solution I put forward is not one on which the Court has proceed today.

75. MR JUSTICE McCULLOUGH: I was particularly happy with your solution, I was only persuaded by the habeas corpus point. Miss Richards insisted there was some point in hearing the case. As you know, the Court does not deal with academic questions. Judicial review is a discretionary remedy, it is only granted if there is some point to it. We do not answer academic questions, hypothetical questions, points of principle unless they happen to arise because the rights of a citizen have in some way been interfered with and need to be declared or restored. You may well have been right in the decision you took on 7th February, it may be that Mrs F ceased to be the nearest relative and now has become the nearest relative again. I do not know. It may be if you had considered whether he had no place of ordinary residence you would still have come to the conclusion that his grandmother was at that moment his nearest relative. The point is this: you had to get as far as the door of the court until the point became academic. It did have merit, so why should you not pay the costs up to, as I say, 11.30 this morning?

76. It may be, with the way counsel and solicitor's fees are worked out, it does not make any difference. I really do think we have been here from 11.30 to 4.45, apart from lunchtime, pointlessly?

77. MISS HARDING: It would have been helpful had we known in advance of today that my learned friend was going to contend for a third form of decision which could have been made on 7th February. That certainly was not made plain to us in the grounds or the skeleton in which case, as your Lordship knows, I had difficulty answering the point and would have taken a view of that. That is really all I say about costs in advance of today, given your Lordship's judgment.

78. Your Lordship knows our effort this morning was to meet all the current concerns.

79. MR JUSTICE McCULLOUGH: I see that. It is most unfortunate that the Court should become involved in a dispute of this kind. Coming to court is a matter of last resort in a case involving a patient or a youngster.

80. MISS HARDING: Particularly where there may be ongoing problems in relation to which the social workers will have to deal with the family.

81. MR JUSTICE McCULLOUGH: I am not going to give you your costs of today, because when all is said and done, Miss Richards did win, but my inclination is to say, no costs insofar as they have been increased by this case lasting beyond 11.30 a.m. this morning.

82. MISS HARDING: Would your Lordship excuse me a moment. (pause) I do not wish to address you further.

83. MR JUSTICE McCULLOUGH: The Respondent to pay costs up to 11.30 a.m. today, and so far as costs increased since 11.30 a.m., each side to bear its own. Are you legally aided?

84. MR JUSTICE McCULLOUGH: Legal Aid Taxation, thank you.