Family Fail To Have Protected Party’s Representative Replaced In Complex Court Of Protection Case

In many Court of Protection cases, the Official Solicitor (OS) is invited to step in as a litigation friend and act on behalf of the Protected Party. The OS will in turn often engage a solicitor.

This happens more often in health and welfare cases, and one of the tasks of the OS is to ensure the Protected Party’s voice is heard. Consequently, the OS’s representatives quite often meet with the Protected Party to see if they can establish that person’s wishes and feelings – a relevant factor under section 4(6) of the Mental Capacity Act 2005. It is, however, very difficult for the OS to fulfil that role if they cannot access the Protected Party. This was the case in A Local Authority v MF and others [2022] EWCOP 54.

A Local Authority v MF and others [2022] EWCOP 54

Case background

This case concerned a 40-year-old man with moderate learning difficulties and schizoaffective disorder. The individual (M) had, for most of his life, been living at home with his family, who appeared to have had a significant aversion to the involvement of the local authority and associated service providers. Consequently, M had not received the care and treatment that the local authority believed he needed in order to live a fulfilling life.

The judgment of Sir Jonathan Cohen describes some of the family history and there were many incidents that caused significant concern, resulting in M being moved into a care home in 2016. He stayed there for a number of years and made some progress in terms of learning self-care and other everyday skills. However, he was moved back home during a family visit, and although the local authority was prepared to accommodate this to a degree (accepting M had outgrown the care home to some extent), the family again began to obstruct visits by social workers and carers.

The key decision to be made by the Court of Protection was whether or not M should live away from home, given the concerns over his family’s approach, and whether he had the capacity to make that decision. Whilst the family was providing care, in the past, there had been some worrying reports from the social workers, and appointments with carers were being cancelled frequently by the family and they appeared to be actively trying to frustrate M from going out to activities and into the community. There were concerns about coercive and controlling behaviour.

M was represented in the proceedings by the OS (as a litigation friend), and the OS in turn appointed a solicitor to act for them. The family were very critical of the solicitor in question, accusing her of siding with the local authority unreasonably. They applied to Court to have her removed from the case, and the application was rejected. A Judge warned them not to make a further application and the family appeared to have M apply for her removal in his own name. They prevented the solicitor from meeting with M to try and establish his wishes and feelings.

In the end, because the attempts were so persistent, the Judge ended up placing a penal notice on the order. A penal notice is a warning that if the terms of an order are breached, the culprit will be in contempt of the Court and can be imprisoned for their actions/inaction. This is sometimes requested against family members who are found to be behaving in an obstructive or harmful manner. However, any such order should be proportionate and should not be enforced unreasonably.

The Judge in this particular case made an order for M to be moved into a supported living facility. M was noted to be a talented musician and artist who had a lot of potential and needed access to suitable support so as to progress. He had met with the Judge and had expressed a desire to live at home. The Judge was wary of influence from overbearing family members but accepted that M did want to live at home. However, the Judge noted that M was “an engaging and sociable man, who has missed out on key developmental stages” and that it was “crucial for his development that he is supported to form friendships with people his own age outside the family”.

The key factor was that the family was noted to be averse to providing M with the chance to fully develop his abilities with the help of outside service providers. As such, the Judge decided that despite M’s wishes to remain at home, it was in his best interests to live independently of his family.