England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Sitting at Leeds)

		Leeds District Magistrates' Court and Family Court Westgate Leeds LS1 3BY
		20 March 2024

(Transcript prepared without the aid of documentation)
REPORTING RESTRICTIONS/ANONYMISATION APPLIES


MR JUSTICE COBB:

1. The application which is listed before me this morning concerns FH, who was born on 30 June 1942 and is now 81 years old. The application is brought by Wakefield Metropolitan District Council ('the local authority'). It was issued on 12 June 2023 and by the application the local authority seeks to protect FH as a vulnerable adult under the court's inherent jurisdiction. The first respondent to the application is FH, herself, currently at a Care Home.
2. I pause here to say that FH is in attendance at this court hearing, participating by video link as she lies in her bed at the Care Home. FH has attended most, if not all, of the hearings which I have conducted in this case and I have had the opportunity to speak with FH directly away from the court hearing on at least one previous occasion. FH impresses me as a forthright woman with clear, strong views and a wonderful sense of humour. It has always been a huge pleasure to see her in these court hearings and to assure myself that she is not only aware of what is going on in the courtroom, in proceedings which concern her, but she has also had an active voice in those proceedings, both directly and through her advocate.
3. The second respondent to the application is MH, her husband, who has not attended court today, though I am satisfied that he had been personally served with the notice of the hearing and all the relevant documents. MH has, in fact, not attended any of the hearings within these proceedings so far as I know - certainly none of the hearings at which I have presided. Finally, the hearing is attended by the intervening NHS Trust at my invitation, because issues potentially arise in relation to the implementation of an order which I propose to make in this case in the event that FH has to be admitted to hospital, or one of the other Trust premises.
4. The local authority is represented by Mrs Natalia Perrett, FH by Francesca Gardner, and the Trust by Simon Wilkinson. I am grateful to each one of them for their assiduous attention to this case - certainly in Mrs Perrett's and Miss Gardner's case - over a number of months.
5. I have had cause to case manage this set of proceedings at three previous hearings, on 31 October 2023, on 13 December 2023 and then the case was listed again before me last week, 12 March 2024, when I was to be invited to make final orders. But in view of the uncertainties which pertain to the Trust's position in relation to the provision of, and funding of, supervisors to supervise contact on their premises, I felt constrained to adjourn the final hearing to today, 20 March. An agreed order has been placed before me, the terms of which I shall briefly address in a moment.
6. By way of further background I should add that in the evening of 30 April 2021 (three years ago), when fulfilling my duties as the out-of-hours duty Family Division Judge, I was presented with an application by the local authority for an injunction under the inherent jurisdiction concerning FH. The injunctive relief was sought, as it is today, against her husband, MH. On that occasion I heard (by telephone) not only a representative on behalf of the local authority and on behalf of FH, but I actually also heard from MH in person. At the conclusion of a telephone hearing, which as I say took place on the evening of 30 April, I delivered an ex tempore judgment which is contained in the trial bundle for today. This short judgment (with neutral citation [2021] EWHC 1233 (Fam) ), which is appended to this judgment as an Annex for ease of reference, should be read alongside that judgment; indeed the earlier judgment makes an appropriate preface to what I need to say today.
7. In brief, both FH and MH are elderly people, both of whom, I am sad to reflect, are very unwell. FH has a diagnosis of Alzheimer's Disease, multiple sclerosis, cerebellar ataxia, a history of strokes, anxiety and depression, and epilepsy. Most recently she has, I am further sad to say, been diagnosed with descending colon cancer with liver metastasis. Notwithstanding her frail, physical state, I am utterly sure that her spirit is very much strong and well.
8. MH is also said to suffer from cancer, though the details of his diagnosis are not clear to me.
9. FM and MH have for many years - indeed decades - been married and living in the community, albeit largely estranged from their wider family.
10. There is no real doubt in this case - I wish to make clear - that FH is capacitous; i.e. she has the capacity to engage in the litigation and to make decisions about where she should live and with whom she should have contact. The presumption of capacity, which is the bedrock of the Mental Capacity Act 2005, is not on the evidence before me displaced. The proceedings have therefore been instituted under the court's inherent jurisdiction, deploying its protective jurisdiction, which has been discussed and developed through important senior court decisions, including Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam) and DL v. A Local authority [2012] EWCA Civ 253. I do not propose to reproduce into this judgment the relevant extracts from those decisions, because they were, in fact, incorporated into my earlier judgment at [14] to [16].
11. I wish to emphasise that in this particular case, at this particular time, I have taken great care to focus on whether there is a need to exercise the inherent jurisdiction, and that if exercising the jurisdiction, I make orders which are both proportionate to the safeguarding issues which lie at the heart of them, and which interfere with the Art.8 rights under the European Convention of Human Rights of FM and of MH only to the limited extent appropriate.
12. As I say the history of this case was rehearsed in the 2021 judgment, which reflected a number of safeguarding concerns expressed by the local authority about MH's treatment of his wife in their home. His conduct was said to be both physically and emotionally abusive of her, and I had occasion to listen to a recording of his behaviour towards FH in that hearing, evidence which I will not readily forget. Those proceedings concluded with FH being removed briefly to a place of safety and steps being taken effectively to rehabilitate the couple. But sadly, over the intervening months (and indeed years) since the conclusion of those proceedings, it appears that MH's behaviour has, in some respects, not abated, or not abated sufficiently.
13. Safeguarding concerns were specifically raised in 2022 when it became apparent that MH, or MH and FH, were contemplating suicide. Those safeguarding concerns escalated by June 2023 leading to the institution of these proceedings. By that time, FH was a resident at a different care home, Care Home (X), although at times she has also been at Pinderfields Hospital. While at Care Home (X), and more recently at the current care home, Care Home (Y), there have been concerns expressed by staff - well evidenced in the documents - about MH's behaviour to FH, both directly and indirectly, both physically and emotionally. There have been concerns expressed throughout the recent papers of his undermining of the authority of those who work within the care home and who are providing care for FH.
14. It appears - although I have not heard evidence on this nor MH's response - that he has prevented carers from administering FH's medications. He has presented as volatile, quick to lose his temper, interfering with discussions between FH and her carers, and intervening unhelpfully to frustrate the administration of medication to FH in the care home. Regrettably, and notwithstanding the injunctions that have been made since June 2023, including most notably by me over the last five months, MH's behaviour has not entirely abated and there have been incidents, even recently, including last month, where care staff have had to intervene to prevent him abusing FH.
15. FH, for her part, tells me how much she loves MH. She has emphasised to me many times the longevity of their marriage and their commitment to each other. She has told me that she wishes to be together with MH and has told me - and Miss Gardner has confirmed this - that she finds the supervision of his visits intrusive and unwelcome. Arrangements have most recently been made, in December 2023, for the supervision of MH's visits with FH in the care home to be relatively unobtrusive, with the care staff simply monitoring the interactions between them from a chair by the door. There have been occasions, unfortunately, when unbriefed supervisors have positioned themselves within the room in a more obtrusive way, which has, unsurprisingly, caused upset both to FH and to MH.
16. The continuation of the behaviours to which I refer reinforce for me the necessity of protecting FH, so far as this court can do, from the abusive conduct of her husband. In my judgment, a continuation of protective injunctive orders under the court's inherent jurisdiction remains a proportionate response to the risks about which I have read. I have no doubt at all about the love which FH has for MH, and MH for his wife, but MH's aggressive conduct as observed by professionals and care staff, his ungoverned temper at times, his interference with the proper provision of care for FH in the care home, render the making of injunctive orders necessary in FM's best interests. FH rightly accepts that she is a vulnerable person. I can see that for myself and, in this way, the intervention of the court remains utterly justified.
17. As I earlier reflected, the position has now arisen where the parties have assembled at this final hearing and have reached an agreed order. By that agreement, the local authority invites me to continue the injunctions which I have made on previous occasions to protect FH's safety and to ensure she obtains all necessary support. The Mid Yorkshire Teaching NHS Trust invites me to continue those injunctions, which will have effect at times when FH is a patient at one of their hospitals or other Trust services.
18. It is agreed that for as long as supervision and monitoring of MH's relationship with FH is required at Care Home (Y), or elsewhere in the community within resources and/or other facilities provided by the local authority, the funding of those arrangements under the Care Act 2004 will fall properly to the local authority. It has been agreed today that the Trust will accept responsibility for the funding of supervised or supported contact between FH and MH during any time that FH is accessing their medical services. In the meantime, the plan is that the arrangements for MH to see FH will continue with the supervisor being positioned either at the door, or just outside the door of the room where FH is accommodated, but in the line of sight of the supervisor.
19. The order that I propose to make prohibits MH from removing FH from her place of residence - currently Care Home (Y) - and that order will continue until or unless I discharge it. MH is further injuncted from removing FH from any of the Trust premises, should FH be relocated to one of the Trust premises in the future. The order will prohibit MH from having direct contact with his wife without third party support, as agreed with the local authority, whilst FH is the Care Home or elsewhere within the community, or as agreed with the Mid Yorkshire Teaching NHS Trust in the event she is resident on Trust premises. Those orders are now to be final orders, although of course it will be open to any party, including MH, to apply to vary or set aside those orders on notice to the others.
20. I have seen the care plans which have been filed by each of the statutory bodies, and I can confirm that I am satisfied that they do, indeed, meet FH's best interests.
21. It leaves me only to say this. I hope that FH, who I know is still listening to what I say this morning, enjoys a peaceful, pain-free and stress-free future at the Care Home, and that she continues to enjoy and benefit from visits from MH and is, hereafter, spared the unhappy displays of his temper and behaviour which have, from time to time, flared up in the past in her presence. She deserves peace and happiness where she lives and I hope that that is what she gets.
22. That is all I propose to say by way of judgment.
__________ ANNEX Neutral Citation Number: [2021] EWHC 1233 (Fam)

Case No. H90LS935