England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 December 2006

Mr Justice Munby :

1. On 1 June 2005 I gave judgment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913. Those were proceedings (FD05P00944) relating to a woman of 32 called PE. I need not repeat the description of PE's difficulties which I set out in my judgment, but as will be recalled PE lives in her own house, supported by a large round-the-clock care support team. Her package of care was, and is, more than usually complex.
2. At that time, the local authority, St Helens Borough Council, had indicated that it was proposing to commence proceedings under the inherent jurisdiction with a view to better regulating PE's care and making "firm and stable plans" for her future. In the event the proceedings (FD05P01780) were begun by a Part 8 claim issued on 5 September 2005. The proceedings proved to be somewhat protracted and eventually came on for trial before me on 11 December 2006. In the event, and in circumstances in which everyone involved is to be congratulated for their sustained efforts and ultimate success in achieving the best for PE, I was invited to approve the terms of an order to which everyone was agreed.
3. The precise terms of the order are of importance only to the parties and I propose to say very little about them. I was satisfied, in the light of all the evidence, and I granted a declaration to the effect, that PE lacks the capacity to make decisions about the organization, management and structure of her care package. The order sets out, in very considerable detail, the framework within which, and the principles by reference to which, her care package is to be organised and implemented.
4. The form of the order does, however, raise one important point of principle on which it may be convenient for me to give a short judgment.
5. In the order as I finally approved it there are many paragraphs taking the form "it is declared that it is in PE's best interests" that somebody do something or that something be done (or not done). There are other paragraphs taking the form "it is declared that it is not in PE's best interests" that somebody do something or that something be done.
6. One example, and it is in a sense the key provision in the order, is a declaration that:

"it is in [PE]'s best interests for the delivery of care to her to be organized and structured in the manner set out in the First Schedule attached to this Order."

I need not refer in any detail to that Schedule, save to observe that paragraph 1 provides that:

"A single experienced organisation … should be commissioned by the [local authority] to provide [PE]'s care. [PE] will be able to participate appropriately in the process of selecting and appointing that organisation."

7. In the course of the discussions which took place between the parties during the drafting of the order there was some debate as to whether an order in this form was appropriate. In particular, it was suggested that what I will call a bare declaration of "best interests" is inappropriate and that the more appropriate form of order was one declaring, for example, that "it is lawful, being in [PE's] best interests, for the delivery of care to her to be organized and structured [etc]" (emphasis added).
8. The Official Solicitor was of the view that the additional words were unnecessary and inappropriate. I agreed – hence the form of the order which I eventually made.
9. It may assist if I explain briefly why, in my judgment, the Official Solicitor was correct and why it is no longer necessary on every occasion, even if on many occasions it will still be appropriate, to adopt the conventional formula that something is "lawful as being X's best interests" or "not lawful as not being in X's best interests."
10. I need not re-trace, yet again, the history and development of the inherent declaratory jurisdiction in relation to adults since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. It suffices to refer to the account in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [38]-[42].
11. As is well known the inherent jurisdiction was first exercised in relation to issues of surgical, medical and nursing treatment, a context where the doctrine of necessity as explained in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 is of crucial significance. In that kind of case, what the Family Division is doing when exercising the inherent declaratory jurisdiction in relation to an incompetent adult is to declare that something is lawful – lawful not because the court has given its consent but lawful, notwithstanding the absence of any valid consent, because and by virtue of the operation of the doctrine of necessity: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at para [97].
12. Now since the whole point of the doctrine of necessity is that it renders lawful that which, absent consent, would otherwise be unlawful, and since, under the doctrine of necessity, it is the patient's best interests that determine what is or is not lawful (see In re S (Adult Patient: Sterilisation) [2001] Fam 15), the proper form of declaration is that which is now so familiar: a declaration, for example, that "the proposed operation, being in the existing circumstances in X's best interests, can lawfully be performed notwithstanding X's inability to consent to it." And similar forms of declaration may well be appropriate in other contexts where the doctrine of necessity is in play, for example, in relation to questions of where an incapacitated adult should live, who he should see or the circumstances of such contact: see Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at para [99].
13. But matters have now moved on very significantly. As I said in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [37]:

"It is now clear … that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court."

I went on (at paras [38] and [43]) to comment that:

"The simple fact is that the jurisdiction has developed very significantly since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 … This process continues and will, I am sure, continue."

14. Thus it is now clear that the jurisdiction is exercisable in relation to a wide range of other questions, including, crucially, questions where the doctrine of necessity is simply not engaged at all: see Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [44]. Indeed, as I observed in the same case at para [45]:

"the court can regulate everything that conduces to the incompetent adult's welfare and happiness."

15. There is, therefore, no reason why the form of declaration used in cases where the doctrine of necessity is engaged should necessarily also be used in cases where it is not. As I went on to say in the same case at para [97]:

"The particular form of order will, naturally, depend upon the particular circumstances of the case."

16. There is in fact no doubt that the court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the incapable adult's welfare and interests: see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [50], M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, at para [133], and Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [85].
17. Moreover, as I pointed out in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [51]:

"subject always to being satisfied that this really is in the best interests of the mentally incapacitated person, the court has, and in my judgment always has had, power to declare that some specified person is to be, in relation to specified matters, what is, in effect, a surrogate decision-maker for the incapable adult."

Such orders are now very frequently made. Thus, for example, an order which I had made in another case only a few days before this case was before me contained a declaration that contact between an incapacitated adult and her father was to be "at a venue and of a duration agreed in advance by" an identified local authority.

18. It will be apparent that on this view of the law, declaratory relief of the kind that I granted in the present case was, in the circumstances, entirely legitimate. It was also, in my judgment, entirely appropriate. It was right for me to declare that A, B and C were in PE's best interests, just as it was right for me to declare that X, Y and Z were not in her best interests. But there was no need for me to make declarations as to lawfulness or unlawfulness. Indeed, in this particular case (as, probably, in others of its type) it was, in my judgment, better that I did not.
19. A bare declaration of "best interests", without any accompanying declaration as to lawfulness, has at least one important advantage: it avoids the problems which I had to consider in A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [118]-[128]. Those problems arise out of the suggestion (put forward in that case by the Official Solicitor) that the effect of a declaration that a particular course of action is lawful as being in the best interests of an incapable adult is that all other courses of action are unlawful; in short that such a declaration therefore has a coercive effect vis-à-vis public authorities.
20. There may well be cases, indeed the present is such a case, where the inherent jurisdiction is being exercised in a context where the private law issues which are properly the subject of the jurisdiction being exercised by the Family Division are intertwined with or rub up against public law issues which are, for the reasons explained in A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, more properly the preserve of proceedings in the Administrative Court for judicial review. In such a case, and for the reasons I explained in A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at para [126], it may be unwise, indeed inappropriate, to grant a declaration that a particular course of action is lawful as being in the best interests of an incapable adult.
21. On the other hand, in such a case it may (as here) be perfectly proper and indeed entirely appropriate for the court simply to grant a bare declaration that a particular course of action is or (as the case may be) is not in the person's best interests. Such a declaration would in an appropriate case be, and in this case was, a proper and appropriate exercise of the court's inherent jurisdiction, justifiable (if further justification is needed) on the same basis as the analogous exercise of the wardship jurisdiction was in In re D (A Minor) [1987] 1 WLR 1400: see the discussion in A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [57]-[58] and [115].
22. For all these reasons it seemed to me to be, as I have said, not merely a legitimate but an appropriate exercise of the court's inherent jurisdiction in this particular case to make a series of bare declarations of "best interests", without any accompanying declarations as to lawfulness, just as it seemed to me a legitimate and appropriate exercise of the court's jurisdiction in effect to delegate to the local authority the power to decide which organisation should be commissioned to provide PE's care.
23. This does not, of course, mean that there is simply no limit to the circumstances in which a bare declaration of "best interests" can be granted. There must be a properly justiciable issue before the court. But, as Singer J said in Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [8]:

"if there is a serious issue as to the propriety of what is proposed, recourse can be had to the court for declaratory relief."

He went on to refer to In re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1, where Sir Thomas Bingham MR indicated (at page 19) that the jurisdiction is exercisable whenever there is "a serious justiciable issue" involving the "happiness and welfare" of an incapacitated adult.

24. This is not the occasion, nor do I propose to take the opportunity, to explore any further when there is or is not in this context a serious justiciable issue. That is a topic best considered, when the need arises, on a case by case basis. The inherent jurisdiction is, after all, as Sir Thomas Bingham MR pointed out in In re S (Hospital Patient: Court's Jurisdiction) [1996] Fam 1 at page 19 a jurisdiction which must have sufficient flexibility to be able to respond to social needs as they are manifested, case by case. As Singer J said in Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [8], the jurisdiction is "sufficiently flexible … to evolve in accordance with social needs and social values."
25. I should add that there is no conflict between any of this and my decision in Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326, at paras [95]-[102], that the court has no jurisdiction to determine whether or not it is in someone's best interests to marry. This is because the only justiciable issue in such a case is whether the person in question has capacity to marry. If a person lacks the capacity to marry the court has no power to supply the necessary consent and the doctrine of necessity cannot operate, so the question of best interests is irrelevant; if, on the other hand, he has the capacity to marry, then the court cannot exercise the inherent jurisdiction at all. So the question of best interests does not arise: see the analysis at para [100]. (However, as I pointed out in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [100], the fact that it is no part of the court's function to decide whether it is in a person's best interests to marry, does not, of course, mean that the court, if satisfied that someone lacks the capacity to marry, is debarred from considering whether it is their best interests to be exposed to an ineffective betrothal or marriage. Nor does it prevent the court concluding that such events would not be in their best interests and therefore should be prevented.)