LEEDS DISTRICT REGISTRY
In the matter of the Inherent Jurisdiction And in the matter of S (an adult patient)
Coverdale House 13-15 East Parade,
B e f o r e :
| Sheffield City Council
|- and -
|(1) S (by his litigation friend the Official Solicitor)
Ms Linda Cains (instructed by Zermansky & Partners) for the first defendant (S)
Mr Bernard Wallwork (instructed by Howells) for the second defendant DS (the father)
Hearing dates : 2-3 October 2002
Crown Copyright ©
Mr Justice Munby:
"In deciding what is best for the disabled patient the judge must have regard to the patient's welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination."
"There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal ... Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit . Then on the other sheet the judge should write any counterbalancing dis- benefits to the applicant ... Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant."
"lawful, being in S's best interests, that he reside at accommodation secured for him by the [local authority] [and] that he have only supervised contact with [DS] the frequency, timing and location of such contact to be decided by the [local authority]."
"in the main, [DS] has provided a good enough level of physical and emotional care for [S] ... for the majority of the time, [DS] is able to look after his son [S] in ways which safeguard and promote his welfare".
i) In what circumstances should the parental responsibility (I use the phrase in the colloquial sense, and not in the technical sense in which it is used in section 3 of the 1989 Act) be superseded by the court exercising its inherent declaratory jurisdiction? In particular, is there, by analogy with sections 31(2) and 100(4)(b) of the 1989 Act, any threshold requirement to establish, before the State can intervene, either the risk of significant harm and/or parenting which falls short of the reasonable?
ii) Is it permissible for the court to delegate to a third party - in a case such as this the local authority - what amounts to decision-making responsibility in relation to a mentally incapacitated adult?
iii) that the High Court does not have (indeed has never had) parens patriae or other jurisdiction over the person of a mentally incapacitated adult - though, that said, as I pointed out at p 227D (para ) "for most practical purposes the declaratory jurisdiction in relation to incompetent adults is the same as that of a court exercising the parens patriae jurisdiction"; and
iv) that the parent or other relative of such an adult does not have any authority, qua parent or relative, to take decisions on his behalf.
"The starting-point must be that L is an adult, but an adult under a disability. If she were competent there would be no question of enforcing a relationship between her and her father. He would have a right to a relationship as far as she consented to it and no further. Since L is under a disability and is not in a position to consent, following the principles set out in the In re F (Mental Patient: Sterilisation)  2 AC 1 line of cases, it becomes a question of—is it in her best interests to have contact with her father? If there was no conflict between the members of the family, it would be natural and desirable for L to have the love and support of those members of her family willing to give that to her. In the case where there is conflict, the best interests of an incompetent adult require the court to look at all the circumstances, which include the history and former relationship of the father and daughter, the current situation and the prospects for the future. There is, in my judgment, no presumption of the right to contact between a parent and an adult child, even one under a disability. But the relationship of father and daughter is clearly a relevant factor and may, in some cases, be a most important factor. That relationship must be weighed in the balance together with all the other relevant circumstances of each individual case."
"officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act".
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation."
"Whatever the position of the parent may be as a matter of law - and it matters not whether he or she is described as having a "right" in law or a "claim" by the law of nature or as a matter of common sense - it is perfectly clear that any "right" vested in him or her must yield to the dictates of the welfare of the child."
"As a general proposition a natural parent has a claim to access to his or her child to which the court will pay regard and it would not I think be inappropriate to describe such a claim as a "right." Equally, a normal assumption is ... that a child will benefit from continued contact with his natural parent. But both the "right" and the assumption will always be displaced if the interests of the child indicate otherwise".
"Private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings."
"While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ... In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual".
"If she were competent there would be no question of enforcing a relationship between her and her father. He would have a right to a relationship as far as she consented to it and no further."
"Modern reference to the 'rights' of the citizen can sometimes lead one to overlook the equal importance of what was once very clearly understood as the 'duty' of the Crown to its subjects. Today the rights of the citizen are mirrored by the duty of the state. Expressed in the language of the new constitutional settlement, the parents and the boys are guaranteed by art 8 of the Convention their rights to respect for private and family life. By acceding to the Convention the state bound itself to secure these rights to the parents and to the boys. Moreover, since 2 October 2000 it has been the duty of every public authority (and for this purpose both Lambeth and this court are public authorities: see ss 6(1) and 6(3)(a) of the 1998 Act) not to act in a way which is incompatible with the citizen's Convention rights. In more traditional language it is the duty of the Crown as parens patriae to protect children against injury of whatever kind from whatever source: see In re X (A Minor) (Wardship: Jurisdiction)  Fam 47 at 52 (reversed on other grounds  Fam 47 at 56)."
"By paragraph (c) of article 5 a specific exception is made to permit the state to restrict the personal freedom of the persons of unsound mind—a class which, within limits, it is for each member state to define: see Winterwerp v The Netherlands (1979) 2 EHRR 387. The power is itself, however, subject to at least two major constraints: it must be in accordance with a procedure prescribed by law, and any such law must in turn accord the respect due under article 8 to private and family life.
The first of these elements does not mean that the common law cannot grow or shape itself to changing social conditions and perceptions: see SW v United Kingdom; CR v United Kingdom (1995) 21 EHRR 363. It means that any such change must be principled and predictable. For the reasons set out in the two preceding judgments I consider that the development of the law which our decision represents passes both limbs of this test.
The second element will be, in the light of this judgment, a matter to which the court that is to hear the substantive application for a declaration must have careful regard. But it should be clearly said now that it is T's welfare which will remain throughout the single issue. The family life for which article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare. As the European Court of Human Rights said in Marckx v Belgium (1979) 2 EHRR 330, 342, article 8(1):"does not merely compel the state to abstain from ... interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective 'respect' for family life."
In the present state of the law as it affects T, it is upon the court and the local authority that any such positive obligation comes to rest. One of the advantages of a declaratory remedy, and in particular of an interim declaration, is that the court itself can do much to close the so-called "Bournewood gap" in the protection of those without capacity: see  1 AC 458, 497, per Lord Steyn."
"the common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges."
"be at liberty, notwithstanding any absence or refusal of consent by the [parents] or any absence of consent by the [local authority], to treat [SLS] in her best interests in accordance with the professional opinion and recommendations of Dr SM (or other consultant responsible for her care) ... provided that (i) the [NHS Trust] shall so far as is reasonably practicable at all times first consult with the [parents] and the [local authority] (ii) nothing in this order shall authorise the withholding or withdrawal from SLS of either nutrition or hydration".
"The withholding in the future of the administration of antibiotics in the event of the patient developing a potentially life-threatening infection which would otherwise call for the administration of antibiotics is a decision which can only be taken at the time by the patient's responsible medical practitioners in the light of the prevailing circumstances. This requires a clinical judgment in the light of the prevailing circumstances."
"it shall be lawful as being in the patient's best interests for the trust and the responsible medical practitioners having the responsibility at the time for the patient's treatment and care ... to withhold the administration of antibiotics in the event of the patient developing a potentially life-threatening infection which would otherwise call for the administration of antibiotics but only if immediately prior to withholding the same:
(a) the trust is so advised both by the general medical practitioner and by the consultant psychiatrist having the responsibility at the time for the patient's treatment and care; and
(b) one or other or both of the parents first give their consent thereto."
"The decision to withhold antibiotics in a given situation falls fairly and squarely within the clinical responsibility of the consultant treating the patient. I am quite satisfied on the evidence in this case that the consultant and the general practitioner having the responsibility for R's treatment do have R's best interests in mind. They are fully supported by the parents. I am accordingly satisfied that it would be in the best interests of R to make a declaration in these terms."
"It is now mother's milk to the medical lawyer that, in the case of an adult patient, no-one, not even the court, has authority to consent on behalf of the patient. What was the Official Solicitor doing then when he proposed to the court that [this] be included in the court's declaration . ? And what was the court doing in incorporating this proposal into the declaration which was granted? To insist on parental consent, as a matter of law, explicitly purports to recognise that the parents have a right in law to a say in the treatment of an adult, including a right of veto over future treatment options. This seems entirely inconsistent with the law as generally understood. It may be that, as a matter of good clinical practice and out of concern for their love of their adult child, it is crucial to involve the parents. But this is a matter of ethics, not law. The law vests no authority in them. By stipulating that they consent, Sir Stephen Brown P introduces unnecessary confusion into the law. There is no obvious reason."
1991. DS finally separated from his second wife in 1994. They were subsequently divorced. D left the family home in 1997. S has no contact with either D or his mother. His contact with R came to an end in the autumn of 2000. DS seems to have little if any contact with either D or R.
i) A letter dated 10 June 1997 from Ms JS, the Head of the local authority's Children & Families Social Work Service, referring to a meeting of professionals which had taken place on 6 June 1997, contained this passage:
"We reviewed the present position. It was stressed that your care of [S] is very good and you and he have a close relationship. It was felt that it is in [S's] best interest for him to be cared for at home. We are keen to support you in continuing to care for him. You will appreciate that our resources are limited and we cannot provide all the support you may ideally like ... We are not able to allocate a social worker. Social workers are predominantly involved in assessment and the setting up of support packages. Once these arrangements are in place they have limited contact with families. The level of arrangements for [S] is agreed".
ii) The annual review for 1997/8 dated July 1998 from the class teacher at S's school contained nothing to suggest any problems beyond those inherent in his severe learning difficulties. S was said to have "settled well into his new class group" and "this arrangement is working well". Also, he "enjoys generally good health and misses very little schooling".
iii) The Final Statement (Re-assessment) of Special educational Needs for S prepared by the local authority and dated 9 June 2000 said that S "is generally a happy and secure young man, he has a very supportive family and a continued close home/ school relationship is important." The only non- educational need identified was transport to and from school.
iv) The report dated 17 January 2001 and prepared by Ms MT for the Child Protection Conference on 22 January 2001 recorded of the late 1990s that:
"Social Worker at that time felt that [S's] care by father was good. [S] was always well turned out for school and [DS] has maintained high material standards within the house."
"School see [DS] as being a highly concerned parent who has sought the highest standard of care for his child. They commented on the high standard of physical care that [S] appeared to receive."
i) DS seeking to have S taken into care (or, on occasions, threatening to put him in care) - see, for example, the events of 28 September 1989, 26 February 1990, 2 August 1993, 4 and 31 January 1994, 9 June 1994, 27 January 1995, 17 May 1995, 2 August 1995, 18 March 1996, 8 July 1996, 21 October 1996, 3 January 1997, 6 November 1997, 26 January 2000, 29 August 2000, 21
November 2000, 22 November 2000 and 18 December 2000 as recorded in the chronologies or other local authority documents;
ii) DS failing or refusing to avail himself of respite care when it was offered - see, for example, the events of 15 April 1987, 18 July 1995, 27 October 1995, 10 December 1995, 19 May 1997, 14 August 1998, 5 July 2000 and 23 August 2000 as recorded in the chronologies; and
iii) DS requesting re-housing but then turning down the properties offered: properties which, according to the local authority, were suitable for S were offered but rejected by DS, as the local authority would have it for spurious reasons, in February 1998, June 1998, July 2000 and February 2001.
"[DS] has a consistent method of dealing with authority figures which consists of bullying and threatening ... When his wishes are not acceded to, long daily phone calls ... are made to various paid professionals in turn. He regularly asks for services . When this resource is found, [DS] says he doesn't want it. This pattern has been consistent over the years. It must be stressed that whether it's in [S's] interest or not does not come into the equation as to whether a request is granted. At the forefront of the discussion is [DS's] needs . In these phone calls he can move from being hectoring, bullying to being tearful and asking for sympathy."
i) The history of these complaints and disputes is long. Many of them display a remarkable consistency over time. Recognising that the local authority may well have fallen short on occasions not merely of what DS was demanding but of what any parent in his position would have wanted, and accepting that there may, accordingly, have been more or less substance in some of his complaints, it is quite impossible to accept that the picture has been for so long and so consistently as bad as DS would have me think. To a significant extent the cause of the seemingly endless disputes between DS and the local authority has been not, as he would have it, the local authority's unreasonable failure to provide him with appropriate support and services but rather the unrealistic and unreasonable demands which he has made on the local authority.
ii) DS has long been vocal in his criticism of the unwillingness and inability of the local authority and, indeed, of other agencies, to provide what he thinks his family is entitled to. He has on occasion taken his story to the local press. In the autumn of 1999 (an incident which, I note, is passed over in complete silence by the local authority in its chronologies and evidence) his solicitors wrote to the local authority threatening to commence proceedings with a view to compelling it to provide the social services, housing and educational services for which, apparently, DS had been pressing. He has on numerous occasions in his dealings with social workers and others displayed anger and sometimes adopted attitudes which they have found threatening. It may be that the picture as painted by Ms MT is unduly harsh - though I think it is in fact remarkably close to the reality - but the fact remains that DS has on any view of the matter made life extremely difficult for a whole series of professionals who have tried to help him and his son. The comments of S's headteacher as recorded by Mr F vividly illustrate how it is not only the local authority which has, from time to time, found great difficulty in working with DS.
iii) The reality as matters now stand is that any working relationship between DS and the local authority is going to be fraught with difficulty. There will, as it seems to me, be obvious difficulties in the local authority and DS working together with each other. I note that in his assessment Mr F records DS as saying of his relationship with the local authority, "I do not think it will improve." In his evidence DS disputes this and asserts that, on the contrary, he "would be delighted to work with Social Services". He also says that he wants his relationship with social services to improve and hopes it does. He claims to "feel much more enthusiastic about working with professionals" and "much more able to ask for help". I do not doubt DS's sincerity in saying this: but events over many years (and, indeed, more recently - see below) unhappily give me no reason at all to imagine that things will be any better in future than they have been in the past. The sad fact, in my judgment, is that they will not.
i) on 21 November 2000 DS brought S into the office to be left in the care of the local authority but then changed his mind;
ii) on 22 November 2000 DS threatened to leave S at the housing office; and
iii) on 18 December 2000 DS asked the duty officer to take over S's care, changing his mind as S was walking away with the social worker.
"1 [S] currently is not receiving adequate physical care in terms of bathing.
2 He is locked in his bedroom at night to prevent him wandering.
3 He is being used by his father to gain accommodation of a type his father wants.
4 He is subjected to DS's moods which can be quite dramatic at times.
5 This is an isolated family with little or no input from neighbours or mother. Hence [S's] social life is restricted.
6 [DS] appears to have no insight as to how his behaviour could adversely affect [S].
7 [DS] is unable to work with Social Services Department and other agencies which prevents resources being appropriately applied. [DS] is unable to encourage independence in [S] in terms of consolidating achievements.
8 [S] is kept off school regularly when [DS] is angry with a department's decision."
"While we can acknowledge that [DS] has carried out a stressful task single handed for many years, his current inability to accept services as [S] becomes adult is putting the young man at risk. [S] needs to be registered on grounds of emotional abuse. [S] needs to be bathed immediately and if father cannot do this, [S] will need community provision."
"[DS] had an overwhelming desire to protect [S], which was taken beyond normal boundaries. As a result it was felt that [S's] development had been inhibited, although it had never been possible to assess his potential. Professionals were agreed that [S's] name should be referred to the Child Protection Register in the category of Neglect."
"[DS] went into great detail about the strain he was under because of rehousing issues and how Social Services had not fulfilled their statutory duties ... The meeting was extremely tense, as [DS] insisted on avoiding the question I put to him four times about what practical support could we provide to allow [S] and himself to live at home . [DS] said there were no practical solutions and he would not accept services coming in to carry out personal care for [S]. He said the only answer was (i) rehousing; (ii) rehousing . Any help offered would be inappropriate."
i) "occasionally" throwing a slipper at S which hit him in the stomach;
ii) on one occasion pressing S's head towards his food to encourage him to eat; and
iii) on another occasion "tapping" S on the knee with a walking stick.
"I do not believe that [DS] has taken responsibility for the abuse. He has minimised the incidents and projected the responsibility for the state of affairs onto others, specially the Local Authority."
i) 15 September 2001:
"[DS] tended to talk to me more than to [S] (although the conversation was about [S] all the time."
ii) 23 October 2001:
"Dad played with [S] and talked to him a bit. He complained to me mostly about all aspects of his situation with [S] ... Dad could complain less and interact with [S] more."
iii) 30 October 2001:
"Dad played a bit but talked at me mostly, about his case."
iv) 6 November 2001:
"Dad talked a bit to [S] but mainly complained to me ... [S] appeared to enjoy himself whilst Dad read his reports and documents. These seemed to be of more interest . Dad seemed to flit between his paperwork and [S]."
v) 13 April 2002:
"Dad informed me that he didn't like social services, or anyone involved with his son, advising him where he should go with him."
vi) 20 July 2002:
"In contrast to the last contact I supervised, this one was very limited in communication between [DS] and his son, whereas the last one . there was lots of interaction . To be honest, it was a poor visit on the whole. It seemed that Dad was more concerned with his own health, due to his scare over the weekend [when he had had what he thought was heart attack], than [S's]. However, there were moments of communication and play."
i) 30 October 2001:
"Dad was talking about suspending contact to make his court date as arranged. His attitude seemed to be that he was attending contact to help with court, not to see his son."
ii) 10 November 2001:
"[DS] said he would not be at Tuesdays visit because his past wishes had not been followed ... [DS] has a negative view towards the care [S] is getting."
i) 23 October 2001 (cf paragraph [93(ii)] above):
"Generally a good visit."
ii) 30 October 2001 (cf paragraphs [93(iii)] and [94(i)]):
"Generally a good visit. [S] appeared to enjoy himself. He laughed quite a lot."
iii) 3 November 2001:
"I thought the visit was positive for [S] & his father."
iv) 6 November 2001 (cf [93(iv)]):
"Generally a good visit, which both parties appeared to enjoy."
v) 10 November 2001 (cf [94(ii)]):
"I thought the visit was positive towards [S]."
vi) 13 April 2002 (cf [93(v)]):
"[DS] communicated well with [S], gave him lots of eye contact, and participated in playing with various toys with him. He also put in place good guidance and boundaries in respect of [S's] earlier antics ... and ensured [S] was safe throughout."
"Combined with his rigid and concrete thinking and systems, it is further indication that any change in behaviour, attitude, concepts and belief systems would not be achieved. In that, the way [DS] is now is the way he is always likely to be. [DS] appears to have constructed a personal world which is designed to keep him as personally safe as possible, to deal with difficulties which he encounters and to keep threat and perceived threat at arms length from him. He achieves this by refusing to accept any deviation from his planned and established systems."
"Whilst acknowledging that for the majority of the time, [DS] is able to look after his son [S] in ways which safeguard and promote his welfare, there is historical evidence that from time to time this places a level of pressure/stress on [DS] which has provoked unacceptable behaviour from him. There is evidence of one overt incident in May 2001, and a number of examples of inappropriate child care management, for example the use of a walking stick and slipper. ...
There is also evidence that [DS], in pursuing his disagreements with statutory organisations, for example, housing, social services and school, has used [S] as a "lever" in order to achieve his ends. For example a Child Protection Case Conference dated 22/01/01 at which [S] was registered under the category of Neglect, it is recorded that [DS] was refusing to bathe [S] because he had not been given a ground floor flat by the housing department. There is also a note on the social work file that on 18/12/00, [DS] asked the Local Authority to take care of [S] because disputes with them were ongoing.
There is substantial evidence that when [S] was living with his father there were ongoing difficulties and disputes in respect of respite care arrangements, including allegations by [DS] about the care provided for [S] at [RM].
Due to [DS's] inability to change, his rigid concepts, belief systems, thinking and behaviour, it is likely that disputes about respite care, care arrangements, the provision of services, and concerns about incidents whilst in respite care would continue.
It is likely that from time to time, [DS] would use [S] as a vehicle to support his case and all of these are likely to have an impact on [S's] emotional well being and compromise the level of care provide for him.
I believe that [S's] best interests would be served if he remained in accommodation provided by the local authority."
"It is my opinion that [S's] best interests would not be served if he were to live on a full-time basis with his father. There is evidence that [S] has been used as a tool in disputes with the Local Authority and statutory agencies, that he has been a victim within these disputes and that if [DS] either encounters high levels of stress or feels emotionally unwell, [S] is at risk of harm.
It is also my opinion that nothing prevents [S] from being looked after within a family setting. If the court decides that [S] should not return to the care of his father, I would urge the Local Authority to consider the notion that a family could be recruited to look after [S]. I believe that such a placement might serve [S's] long term best interests more appropriately. If such a placement were to be made in the future, I would expect the issue of contact with his father to remain a relevant part of his individual care programme."
"Nothing prevents [S] from being looked after within a family setting. If the court decides that [S] should not return to the care of his father, I would urge the Local Authority to consider the notion that a family could be recruited to look after [S]. I believe that such a placement might serve [S's] long term best interests more appropriately."
i) It is not in S's best interests to reside with his father DS at his home because (a) there is a risk of physical and emotional abuse of S should he reside with DS and (b) DS cannot work co-operatively with the local authority to provide an appropriate environment for S that will reduce his social isolation and allow him to develop to his full capacity.
ii) It is S's best interests that he should reside at HC, a specialist nursing home for young adults, but remain at RM until a place at HC is available - which the local authority believes will be quite shortly. Although RM is not suitable as a long-term placement for S, since it is a respite unit and for children rather than young adults, it is nevertheless more suitable for S in the interim than a return to DS's home. HC is a specialist unit, where S can continue the development he has shown since moving to RM and develop to his full potential, have plenty of contact with people of the same age, and take part in a wide variety of activities. (The local authority points out that, whereas DS has refused to visit it, S has visited HC on a number of occasions and clearly likes it there.)
iii) It is in S's best interests that he should continue to have contact with DS, however that contact should be supervised and not take place at DS's home. The frequency of contact should be at the local authority's discretion. It is proposed that it should be weekly.
i) DS's treatment of S, both physical and emotional: the episodes of physical ill- treatment which I have already described and the limited opportunities afforded S whilst at home to expand his social contacts and to develop his full potential.
ii) The improvements which have been noted in S since his removal to RM.
iii) The risk - indeed the likelihood - that as S grows and develops DS will face greater challenges and yet more difficulties in managing S's behaviour and that he will resort again to inappropriate methods of control.
iv) DS's personality and his history of difficult and on occasions aggressive behaviour, including an inappropriately high level of conflict with concerned professionals, coupled with his inability to change.
v) The inconsistency of DS's recourse to respite and other local authority services - services that were offered have on occasions been refused when it would have been better for S if they had been accepted.
vi) DS's inability to put S's needs before his own and his use of S on too many occasions, and at the expense of S's welfare, as a 'lever' or 'tool' in his disputes with the local authority.
i) instances from time to time when the level of pressure on DS has provoked unacceptable behaviour by him towards his son;
ii) evidence that DS has used his son as a lever in pursuing disagreements with statutory authorities;
iii) substantial evidence of ongoing difficulties and disputes about respite care arrangements; and the likelihood that disputes about respite care, care arrangements, the provision of services and concerns about incidents in respite care would continue due to DS's inability to change and his rigid concepts, belief systems, thinking and behaviour - these factors, and the likelihood of S being used from time to time as a lever, would be likely to impact on his emotional wellbeing and compromise the level of care provided for him.
i) the events - going as far back as 1989 - referred to in paragraphs [72(i)], [72(ii)],  and  above;
ii) the incidents of physical ill-treatment referred to in paragraphs  and ;
iii) the problems at contact referred to in paragraphs  - ; and
iv) the striking contrast between S as he presented when living at home and as he now presents since he began living at RM - see paragraph  above - which is, as it seems to me, clear evidence of the emotional starvation which S, no doubt unwittingly, suffered at home.
"It is declared that:
(1) S lacks the capacity to decide where he should reside.
(2) S lacks the capacity to decide upon his contacts with others.
(3) It is lawful, being in S's best interests, that he be accommodated by [the local authority] at [RM] until a placement is available for him at [HC] when it will be in his best interests to be accommodated at [HC].
(4) It is lawful, being in S's best interests, that S have contact with [DS] save that it is in S's best interests that such contact should be supervised unless otherwise agreed in writing between [the local authority] and [DS] in accordance with the attached schedule.
It is ordered that:
1 there be liberty to apply to any party to restore the matter for hearing on application supported by a witness statement to Munby J and on 7 days written notice to the other parties in the event that contact cannot be agreed between [the local authority] and [DS].
2 there be liberty to apply to any party generally, the hearing of any such application to be before Munby J if possible.
3 there be no order for costs save for detailed assessment of the costs of the publicly funded parties."
129. The Schedule will be in the following terms:
1 1 Weekly supervised contact should continue as at present until S moves to, and settles in at HC.
2 Once S moves to HC contact will begin to take place there rather than at the contact centre. The supervision will therefore have a less formal character.
3 It is not anticipated at this stage that the frequency of contact will have to be reduced while S settles in at HC, but the local authority may reduce the frequency of contact for a short period if it is believed that it will help S to settle in.
4 The local authority will keep the possibility of unsupervised contact between DS and S under review. The commencement of such contact will be considered after S has settled in at HC.
5 In considering whether and when unsupervised contact should commence the local authority will have regard to all the circumstances and in particular
(a) DS's having learned, from a suitably skilled person approved by the local authority, techniques and strategies for managing S's behaviour;
(b) DS having demonstrated his ability to engage fully with S during contact by, for example, not spending time during contact sessions talking to the supervisor about matters such as litigation or his views about S's care or his own health;
(c) DS having demonstrated his commitment to S by not cancelling contact sessions late.
(d) DS having demonstrated his ability to be co-operative about arrangements with S by, for example, if S could go on a outing on a contact day, accompanying S on the outing, or agreeing to contact on a different day.
6 Any unsupervised contact would be phased in gradually. It would initially take the form of a short time with DS at HC together with a short trip out and return, and progress from there.
7 Any unsupervised contact would take place only if there was a written agreement between DS and the local authority which included the following matters:
(a) no contact between S and [DS's brother];
(b) the adoption and consistent use of the behaviour management techniques learned as referred to above;
(c) the location and timing of contact;
(d) the social worker in the case meeting any girlfriend or partner or other person with whom DS proposed to spend time during contact.
8 If shorter periods of unsupervised contact went well for S, and DS complied with the terms of the written agreement, consideration would be given to periods of staying contact. Any such period of staying contact would initially be overnight for one night.
9 Review arrangements
(1) The local authority expects that S will have settled at HC within 3 months of having moved there. It will carry out a full review of S's case towards the end of that 3 month period to include a review of the arrangements for contact. At that review the local authority will consider, if it has not done so before, increasing contact between S and DS at HC, and the possibility of progress to unsupervised contact.
(2) Thereafter the whole of S's care will be reviewed formally annually, which will include a review of contact. However the arrangements for contact will be reviewed at least every three months until arrangements for contact that are stable and are acceptable to all parties have been arrived at.
(3) The local authority will have particular regard to the views of DS in deciding what contact would be in S's best interests."