England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		First Avenue House 42-49 High Holborn London WC1V 6PN
		12th December 2007

MR JUSTICE SUMNER:

1. This is an interlocutory hearing in respect of a woman SK, now in her 30s, who it is agreed lacks capacity. Proceedings were started by the local authority, the London Borough of Ealing, in June 2007 seeking declarations in respect of her capacity and injunctive relief against her family. A seven day final hearing is listed in March 2008. I am asked to determine two issues. The first is whether SK should return to her mother's home on a trial period before the final hearing next year. The second matter is in relation to an extensive report by an independent social worker, Ms Walshe. A request is made by her mother for a second social worker report as a paper exercise to begin with. Both those proposals are opposed.
2. The matter was listed for two days. In the event, only part of the first afternoon was available. I heard the submissions on the second day. I announced at the end of submissions on the first point that I did not propose to authorise the trial period. I heard argument on other issues which do not require a judgment. Only my reasons for my earlier decision on the first point and my decision and reasons in relation to the second point now remain.

Summary

3. The background is complex. Papers already fill five lever arch files. Inevitably I have not been taken to much of that which is set out in them, but it may suffice if I set out the matter to this extent. SK is the third defendant and represented by the Official Solicitor. The first defendant KS, is her mother. The ages of the parties, save that of the mother, is not clear. She is 78 years of age. SR, the fifth defendant is about 40. LU, the second defendant, is about 38. SK is either 32 or 36 years of age, and MHAS, the fourth defendant, is 30. The parties have all been represented before me. The second, fourth and fifth defendants are SK's sisters.
4. Miss Weereratne appeared for the local authority, Miss Hewson for the mother, Mr Green for the second defendant, Mr Bagchi for the Official Solicitor for the third defendant, Mr Mullins for the fourth defendant and Miss Scott for the fifth defendant. Whether all the sisters should be represented at the final hearing I have directed to be considered further at a directions hearing in January.
5. It appears that the mother came to the UK from Afghanistan in 1990. The sisters followed her within a few years. SK was living with her mother at first. She had a series of relationships with men. In May 1997 she gave birth to a daughter. She had herself to be admitted to hospital and her daughter was placed with foster parents. Tragically her daughter died at the age of 10 months.
6. SK then had a two year relationship with a man of whom the majority of the family disapproved. As a result, SK had no contact with them. She was in hospital on several occasions because of depression. She obtained a flat. In 2003 SK went to Afghanistan or Pakistan and married a nephew of the mother. Whether the mother received financial reward as a result is in dispute.
7. SK returned to the UK without her husband. She was living on her own with support from LU in April 2005. About November 2005 it seems that SK married a Mr A. It was said to have been an abusive relationship. There is an allegation that LU profited from this marriage, but that is likewise denied. There are allegations of financial misuse of SK's funds by her family in 2000 and in 2006. The police, it seems, are investigating this matter.
8. In November 2006, SR says she found SK at LU's flat on her own. She took her to her own home. She remained there until May 2007 when LU took SK back to her own flat. This brought matters to a head. There had been local authority involvement between about 1999 and 2001. The closing report at that time recorded that there were huge family issues and conflicts with conflicting and false information from the family. These are issues which have reoccurred since.
9. In 2005 there was a protection of vulnerable adults' strategy meeting. At about this time, there was a confrontation, according to SK, with MHAS over money. She alleged that her sister and brother-in-law assaulted her. The police were involved. Case conferences and visits followed.
10. LU alleged that SK had been imprisoned in SR's home between the end of 2006 and May 2007. SR, for her part, said that LU had kidnapped SK when she took her back to her home in May 2007. The police were informed and sought a place of safety order. She was placed with MHAS.
11. On 6^th June, SR's solicitors wrote to the local authority saying that SK had said that she was to be taken to Afghanistan to be married. The same day the local authority started these proceedings and obtained an order from Black J. This permitted them to take MHAS from SR's home to reside in such place as they might arrange.
12. By the time that the matter came back before Black J on 15^th June, the local authority had obtained a report from Dr Sarabartnum, a consultant psychiatrist. She reported that, following her assessment, she did not believe that SK had the ability to express her true wishes and feelings. She went on:

"It is clearly evident from her past history that she has been manipulated with regards to her personal life, as well as financial matters. It was also evident from the assessment that she is easily suggestible. When asked about her understanding of marriage she said that her mother had arranged her previous marriages, but she lacked the concept of marriage and believed that it meant the presence of a husband. She had no understanding of a sexual relationship, including its affects and implications. She is incapable of understanding the consequences of marriage or to plan for her future. She is unable to give informed consent for marriage."

She concluded:


"She is a vulnerable individual and could be subjected to coercion and is in danger of suffering emotional, physical, sexual and psychological harm if she marries."

13. By that time SK had moved to SR's home. This continued until August 2007 when SK made allegations of abuse against SR. SK was then moved to a respite hospital at [a place].
14. In September 2007, when the mother's proposals for a trial period were before the court, the Official Solicitor indicated his reasons for opposing them. They were, in brief, the unresolved allegations against KS of maltreatment and exploitation of SK, the significant level of conflict within SK's family, the difficulty in the family of engaging in a collaborative approach to secure SK's best interests, the lack of understanding within the family of mental illness and of the nature of learning disability, and the reasons given by Ms Walshe, an independent social worker, to which I shall shortly come. They have remained the main grounds upon which the Official Solicitor and the local authority have opposed the trial period.

Ms Walshe's report

15. A series of reports were obtained. The first one in time was that from Ms Walshe of 30^th August 2007. It is a lengthy and detailed report, running to over 60 pages. She interviewed all the parties. She recorded SK's views:

"I want to live with my mother … she has her own flat. My own flat would be better. I need help with the cooking and washing and other … I just need someone to stand and supervise when I am washing myself … that is to shower … I can do the cooking myself. I can look after my laundry and put it in the machine. The sooner the better, take me out of that place and put me near to my home … somewhere near my home or in my home."

16. She set out at the conclusion of her report the benefit and burdens, as she described it, of various options for SK's future. The options included (1) living with SR in the interim and in the long-term; (2) living in her own flat; (3) living with KS, LU or MHAS; (4) living in residential care short-term and in long-term; (5) living in supported living, short-term and long-term.
17. I refer to the benefits and burdens of the third category. It has featured in the case to the extent that I should set out what is there said, even though it is quite lengthy:

"Benefits.

1. SK loves her family.

2. All family members expressed the view that they love SK.

3. Family members want to care for SK.

4. Shared history, communication, culture.

5. SK expresses the wish she wants to live with her mother.

Burdens.

1. High level of conflict and fragmentation within the family.

2. Volatile environment with high expressed emotion impacting on mental health and hence level of functioning.

3. Difficulty of achieving a collaborative approach and ensuring a care plan is followed.

4. Lack of understanding of mental illness and the nature of learning disability. How to promote optimal levels of functioning for the benefit of SK.

5. Belief that SK has a greater degree of personal control over her behaviour than is likely. Attempts to control behaviour unhelpful.

6. SK disowned by family for behaving in a manner in conflict with cultural norms. This could occur again.

7. Allegations of exploitation for financial gain across all family members.

8. Diffusion of responsibility leading to failures to care when needed. Allegations of neglect, evidence of debt.

9. Failure to work collaboratively as a team, agree and share support appropriately.

10. Unlikely to optimise level of functioning or independence if primary care remains within existing family unit.

11. Would not present SK with the opportunity to experience an alternative lifestyle with the benefit of an appropriate package of care designed specifically to meet her needs.

12. SK has little autonomy and power within existing family dynamic. She appears to be done to rather than involved in.

13. Allegations of abuse across and within all parties.

14. Allegations often made on the basis of supposition, rumour and conjecture, with little objective evidence to support conclusions drawn.

15. Family enmeshed with little evidence of healthy boundaries.

16. Competing views on where SK should live, with whom and how, leading to conflict and confusion.

17. Failure to agree on fundamental facts within the family, age, birth order, number of wives father had, leading to disagreement and confusion for all, including SK.

18. High level of suspicion within the family as to the motives of one another.

19. The focus on history, historical feuds and conflicts takes attention from the current needs of SK.

20. SK has little autonomy. Family members have strong personal views about how and where she should live and with whom. There appears to be no forum for discussion, negotiation and healthy compromise.

21. If SK were to live with any single family member, this would introduce a power differential into the equation. There is a danger that SK could become a pawn in this process.

22. For SK to live with any single family would maintain the continued risk of her being perceived as a commodity of potential benefit to that family member."

18. Later, in a separate report, she compared SK's best interests in remaining at [a place] or moving to another property of the local authority's at [a place]. She concluded:

"The assessor does not consider that [a place] would present a suitable option in the short-term. It is an excellent service, but it would not be able to meet with support and risk related needs presented by SK at this stage. As a longer-term option, it might be viable."

19. She specifically considered SK living with her mother, KS, for a trial period:

"The assessor does not consider it to be in the best interests of SK to live with KS for a trial period, as there is no evidence to suggest any change from the circumstances outlined in the initial care needs assessment or the subsequent addendum report. The list of benefits and burdens outlined in the original care needs assessment, when considering the issue of residence with KS and other family members, remain the same. Importantly, there remain unresolved allegations against KS for maltreatment and exploitation of SK. Good practice and safeguarding adults requirements indicate the necessity to make the person safe in the first instance and investigate the issues further."

Dr Milne

20. On 13^th September 2007, Dr Milne, a consultant psychiatrist, reported. She considered that SK was suffering from mental illness. She put it in this way:

"SK is suffering from a mental illness within the meaning of the Mental Health Act 1983. This illness has been diagnosed in the past as schizophrenia or depression. As outlined above, I consider it most likely that SK has a schizo-effective disorder. In SK's case, her illness is characterised by prominent mood symptoms, auditory hallucinations, often of her dead daughter's voice, and paranoid ideas and paranoid delusions about her family matters. From that record it appears that most of the time she has some degree of symptoms. Her insight into her illness and treatment is limited and in the past she has refused to accept appropriate treatment. SK has a lifelong history of learning disability which, in her case, has at times been accompanied by seriously aggressive and irresponsible behaviour."

Later in her report, she concurred with the view of Ms Walshe that SK should not reside with any of her family at the present time.

21. She held in short that she was an extremely vulnerable young woman: she was not capable of conducting litigation; she was not capable of deciding whether she should live and with whom; she was not capable of deciding with whom she would have contact; she was vulnerable to suggestions and pressures from others; she was unlikely to acquire capacity in relation to the above matters in the near future; she does not have capacity to marry; she does not have capacity to manage her own finances as she is vulnerable to exploitation by others.
22. She concluded in a later letter that SK did have capacity to consent to sexual relationships. There are, therefore, differing views expressed by the two psychiatrists to whom I have referred, and the Official Solicitor very properly wishes to take this matter further.

Ms Crommelin

23. Finally, there was a report from a social worker, Ms Crommelin, on 11^th October 2007. She carried out an assessment of the mother and reached this conclusion:

"It is clear that there is a great deal of affection and love between the mother and SK and they would both enjoy each other's company. SK is saying that she would Like to live with her mother. The issue of a woman in her 30s living with her mother are both positive and negative. If it is a good relationship, it can be beneficial to both parties. However, if they have different views about how things should be done and what is in each other's best interests, as is evident in this case, then this would lead to a limitation in SK's ability to grow as an adult.

It is my belief from observation and information gained from this assessment, that the mother would find the practical, physical and emotional aspects of caring for SK very hard work. She has not cared for SK as an adult for more than a couple of days and has herself lived alone for many years, adapting for loss of privacy and the person living with you needing regular physical and emotional support, would be very difficult for anyone, let alone somebody who already needs her own support to manage in a community in which she is quite isolated.

The mother does have an understanding that SK has needs that her sisters do not have and that she has a mental illness and a learning disability. However, my two sessions with her show that in my view she does not understand clearly what these mean for SK. There are concerns about the mother's ability to protect SK appropriately from dangers and how to support her to learn and develop her independent and community presence."

24. She highlighted various issues of concerns. There was the mother's ability to protect SK from the ill-attentions of her sisters, which she feels is other people's responsibility. Her current accommodation is not suitable for two adult females who need their own bedrooms. Social integration is limited. With regard to learning, the mother would look to others to address this, and other for domestic chores, did not seem to regard herself as a learning resource. The mother is not able to say what she would do as a mother in a difficult situation and she would transfer parenting tasks to social services.
25. She was not able to see things from SK's perspective. She had an inability to permit or support SK developing relationships with men. She concluded that there were clear positives in the option of SK living with her mother, but in her view, the mother would not be able to care for SK in a way that promoted her independence, physically, emotionally and developmentally.

Other statements

26. I was given over 100 pages of recent statements and position statements, the great majority of which arrived with me on the first day of the hearing. They are all of value and I have read them. But the last minute appearance of documents, sadly a feature in this division, I have to deplore. It is only the urgent need to resolve family cases that stops many of us on occasions from finding that these have been delivered too late. I go back to the narrative.
27. The local authority accepts that it was on 26^th November that they told the parties of the proposed move of SK to [a place]. This was partly, if not entirely influenced at that time by the fact that they had learned that [a place] was closing for four days at Christmas.
28. Finally, the mother filed a statement on 7^th December. In that she meets the claims alleging she was telling SK to say at contact visits that she wanted to live with her mother. She set out grounds for refuting the allegation that the family had not understood the nature of SK's illness. In that statement she said this:

"I am completely willing to make a fresh start and to recognise that past efforts at trying to help SK or to manage her often challenging behaviour have not worked or have been inappropriate. I have been reflecting a great deal on SK and realising that I need to approach her differently. Of course I would accept any advice that may be offered by the experts or other professionals now involved in SK's care and am very happy to be monitored. I have always been aware that SK has a limited understanding of her surroundings, and does not always know what she wants. In the past, she has not always recognised or understood the time of day and would try, for example, to go out at night time thinking it was daytime.

SK and I love each other deeply. I believe this is a strong basis upon which to agree a trial placement."

29. She went on to set out why she could cope with looking after SK and how she proposed to do so. She denied any financial misapplication. LU supported her mother, as did MHAS, but not SR. For SK the Official Solicitor supported the local authority.
30. Miss Weereratne in her full and helpful summary on behalf of the local authority, drew up a list of allegations affecting the mother and the three sisters. It included the historic physical abuse of SR when the family were living abroad. Whilst it is denied, the allegation is made by SR who herself admitted taking part. Next, she points to the three marriages arranged for SK in return for entry to the UK by husbands, with a fourth one in contemplation. There was the financial abuse of SK, there was the alleged assault on her by MHAS. There were the allegations of false imprisonment, all of which, it is right to note, are in dispute.
31. In the Official Solicitor's position statements, he submitted that the court should not contemplate SK's trial placement with KS without resolving the disputed factual allegations which touch and concern the question of risk. The importance of the court making findings of fact to inform future decisions were recently emphasised by Charles J in the case of Surrey County Council v MB [2007] EWHC 2290.

The mother's submissions

32. The hearing was resolved on submissions; time did not permit calling of witnesses. On behalf of the mother, Miss Hewson made a serious of clear and forceful submissions. She pointed out that the proposed move to [a place] was, in her terms, a forced move because of a Christmas closure. SK could stay with her mother and there was the advantage of both being Farsi speakers and there was a good bond between them.
33. She accepted that family conflict was not good for SK, but much of that had been removed. This followed the declaration that SK lacked the capacity to marry and someone had also now taken over her finances. The mother understood the need for SK to take medicine, and recognised her need for an activity schedule, which had been recommended by Ms Walshe, but which the local authority had not so far introduced.
34. To live with her mother was SK's wish. Furthermore, the mother was available through the night, but help was only available next door at [a place]. Miss Hewson went through the burdens which I have already set out in paragraph 17 above.
35. She criticised the local authority for not providing the means to learn but at the same time criticising the family for not learning. She said the matters raised are very generalised and substantially historic. It was not fair to say that the family could not work together. The mother had avoided a culture of making allegations, contrary, for instance, to SR and what she had done on the previous day. She accepted that it would be hard work looking after SK and was grateful for any help offered.

The sister's position

36. LU supported the mother. MHAS also supported the mother. SR supported the local authority and the Official Solicitor.

The local authority's submssions

37. Miss Weereratne pointed to the stability achieved in the conflictual situation since the local authority took proceedings as compared to SK's position before. The mother did not appreciate the emotional and psychological harm occurring to SK before that intervention. Now there was non-conflictual contact taking place. SK was vulnerable and suggestible, and were she to return, she would once more be in the middle of a conflicting and conflictual situation. The evidence showed that there was no co-operation between the members of the family, and they were playing off one against another.
38. It was accepted that following the recommendation for an activity based timetable, this had not been implemented, but SK was in short term placement. The night time arrangements had been improved and SK had in any event progressed and could now do as she was informed. Education of the family had started. She pointed to Ms Crommelin's assessment in particular. That was based upon meeting the mother and not factoring in the concerning background and history which has to be understood in relation to the whole application.

The Official Solicitor's submssions

39. Mr Bagchi for the Official Solicitor said that this was an interim hearing. It was a balance of harm. He pointed to the background of volatility, where SK was not protected from her own inclinations, and there was no reason to think that the mother could now protect her when she had not done so before. With so much unresolved and the mother's questionable ability to protect SK, and the family at war with itself, it was not in SK's best interests to place her within the family, even on a trial basis. There was also the inadequate premises which the mother had.

The mother's submissions

40. Miss Hewson in response asked what the family could do. They had no legal rights and were in touch with the local authority. It was unfair to blame them when the local authority themselves had not found a Farsi speaking. I invited the parties to put forward their suggestions on this last point so that the local authority could see if assistance could be provided.

Conclusions

41. It is in one sense sufficient to say that I have found the unanimous profession views and the reports, together with the submissions of counsel for the local authority and the Official Solicitor, compelling. I cannot conclude that a trial period for SK with her mother is in her best interests. There are a series of reasons for this to be found in those reports and in the arguments presented to me. In particular I refer to the 22 burdens I set out from Ms Walshe's report.
42. It shows a conflictual background where the mother seemed to have played little effective part. She had had little contact herself with her daughter other than her staying with her for some two weeks in January 2007. There is hope in the mother's latest statement, but that has not been assessed nor to what extent it reflects a different approach.
43. But I am not satisfied at this time that she could control her other daughter's and regulate their visits should SK be living with her. The prospect for continued conflict is manifest, not only in the matters to which I have referred in the evidence, but in their statements which I have also read. That conflict is bad for SK. There is also a substantial question over whether the mother at her age can truly cope, even with support and assistance.
44. Whilst it might be said that not all the concerns which Ms Walshe has mentioned apply for a short trial term, the substantial number of them do and they are by themselves sufficient. I can attach particular importance to conclusions when three professionals from two different disciplines reach the same ones. They all start from the basis that the best place for an adult without capacity is within their own family. There has to be a good reason for not recommending them being placed in such a setting. Here, there are substantial grounds on a series of different fronts.
45. There are merits in what I have read in all the burdens, as Ms Walshe describes them. I make it clear that I am not saying that she is right. Her evidence, of course, has not been tested. But on paper and during an interim hearing, I am satisfied that they are matters I can properly take into account.
46. For those reasons, I am satisfied that it is in SK's best interests not at this stage to undergo a trial period of staying with her mother.

Further independent social work report

47. Miss Hewson seeks this. She says it can be restricted to a paper exercise at the beginning. I suspect that this was to make the application more acceptable, but I have considerable reservations about the merits of such a paper exercise. It is meeting and discussing the issues which I suspect is far more crucial. But I am against this proposal for other reasons.
48. Ms Walshe was instructed by all the parties, but that of course, is not a bar to a further report (see: Daniels v Walker [2000] 1 WLR 1382). I accept also that time may be tight to obtain a report by March 2008, but I have not had regard to this because I think, though tight, it is possible if approved now.
49. Miss Hewson says that Ms Walshe took a very firm view of the family and there is room for a different view, certainly another one. She says that the reports castigates the family for their difficulties. It is not fair. It calls out for a further report. She says that the burdens set out by Ms Walshe which I have incorporated into this judgment, are repetitive, generalised and diffuse, but nevertheless it is critical in as many ways as possible. It lacks balance.
50. Miss Weereratne challenges that analysis. She says the report is even-handed. She points out that Ms Walshe did not accept the local authority's original reasoning for [a place]. However, during the course of the first day, there was further detailed discussion between the local authority and Ms Walshe, which enabled her, in a further report (helpfully prepared overnight) to accept [a place] on the basis that she could not identify a more suitable permanent placement.
51. The alternatives at this stage were not appropriate. Further steps had been taken and there would be work with staff members to draw up appropriate risk management strategies and support protocols. So it was a qualified support for the local authority's plans at this stage, and only accepted when the local authority had put in place further safeguards.
52. Mr Bagchi points to the comprehensive nature of the report. There were no demonstrable defects and it is very clear. There was no point in a further report shadowing an earlier one.

The Law

53. It is clear that where medical evidence in a care case becomes pivotal and is contained in one report, which by the nature of its expertise is difficult to challenge in the absence of a further expert report, the court should not be slow to decline a second expert. There was, however, a need for stringent control of experts in children cases and a second medical report agreeing with the first one may of itself be of value in reducing or eliminating issues, (see W v Oldham Metropolitan Borough Council [2006] 1 FLR 543 and Re J (Care: assessment: fair trial) [2007] 1 FLR 77).
54. Amongst the factors to be taken into account are that experts are in short supply and their reports are expensive for whatever body is funding them. There has to be a good reason to justify any further reports once the first one has been obtained.
55. There is, at the heart of this dispute, a debate about the circumstances in which a report adverse to one party permits that party to obtain a second report. In medical cases the position is relatively clear and is highlighted in the two cases to which I have referred. It can be put in the form of a question: is the report pivotal and can there be effective cross-examination without another report?
56. In non-medical cases such as this, the position can be set out in this way. (1) The court will look at the report itself and ask the following questions: does it appear either fundamentally flawed or biased in its approach; is it otherwise wrong, unbalanced or unfair? If the answer to any one of these points is yes, then that may by itself be sufficient grounds to justify a second report. If the answer is no, then the next question is the role played by the report. Is it pivotal and can it be challenged without the need for a further expert report? The answers to those questions may be determinative. Finally, the impact of a further report on the timetable for the hearing may have to be considered.
57. In this case I have not detected any flaws, bias, lack of balance or unfairness. I hasten to say it does not mean that the report cannot be challenged successfully. True it is that the benefits number 5 and the burdens number 22. I bear in mind that a further report of Ms Walshe brought out another benefit to SK of being with her mother, namely the ability to speak Farsi between the two of them.
58. In the light of the criticisms of those reports by Miss Hewson, I have re-read the 22 burdens. It might be said that there is a little repetition. Some may be the reverse to others, thus, for instance, emphasis is placed of diffusion of responsibility and the next one as a failure to work collaboratively and the next one as a failure to work collaboratively.
59. But they are not, as I read them, deliberately stacked up or eked out to make the list longer. Each has a particular point to make. If there is substance in them, they may have varying degrees of importance, but it is not a pivotal report. There are, and will be, more local authority reports on much the same ground. Both can be readily challenged in cross-examination without the need for a further report and evidence can be called by the parties if necessary to refute quite a number of the points. Finally, the presence of the Official Solicitor, acting in this matter on behalf of SK, is of particular assistance.
60. Finally, I emphasise that my decision only reflects the present position. Other matters may arise which justify a further consideration of the matter.
61. This is an important report because of its thoroughness. It is not pivotal. It can readily be challenged. There will be other reports to be made by the local authority, but I see no sufficient advantage in obtaining a further independent social work report, nor do I see disadvantages in refusing permission for that. That it is clear in its conclusions is not by itself a sufficient reason to refuse it.
62. For those reasons I refuse both applications.
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