The Court of Protection considered whether or not an 18-year-old Woman’s access to the internet and social media platforms should be restricted. The Court was due to make its decision on 3 March 2022 and following several procedural failures and delays by the Local Authority (the Applicant), the hearing became redundant.
As a result, the Applicant was ordered to pay 85% of the costs incurred by the Official Solicitor (Respondent) concerning what turned out to be an ineffective hearing.
A Local Authority v ST (By her Litigation Friend, the Official Solicitor) [2022]
Background
The ongoing proceedings in this recent case relate to a young woman referred to as Sarah or ‘ST’, who has been described as having “a troubled life”.
Sarah has experienced emotional, physical, and sexual abuse throughout her childhood. She also suffers from a mild learning disability and ADHD, both of which have been exacerbated by childhood trauma.
In December 2021, Sarah went missing. She was known to have been taking illicit substances and was involved with a male who had previously assaulted her. As the Local Authority was highly concerned for her safety, an urgent application and the Court made orders empowering the Local Authority and Police to remove Sarah to a place of safety and to be deprived of her liberty there.
As Sarah was deemed to lack the mental capacity to conduct her own Court case and in the absence of any suitable person to act as her Litigation Friend, the Official Solicitor stepped into this role.
Unfortunately, in early January 2022, Sarah absconded from her placement and the Court made another order that she be taken to a safe place and detained there.
Whilst the Official Solicitor and Local Authority had agreed that:
- Sarah required a basic care plan to keep her safe;
- There was sufficient evidence to say that Sarah lacked the capacity to make decisions concerning her residence and care; and
- Expert input from an independent psychiatrist was needed to thoroughly assess Sarah’s capacity to make a number of decisions. This was with the view to making long-term declarations in Sarah’s best interests.
The parties disagreed on one fundamental issue. This was whether or not Sarah’s use of social media should be restricted.
- Local Authority’s position: It was argued that if Sarah were to continue using social media, she would make contact with harmful people, engage in online activities which may cause her harm, and possibly give away her address which would put her at risk of harm from her boyfriend.
- Official Solicitor’s position: Concerns were raised that no specific capacity assessment had taken place to deal with this particular issue and even if Sarah was deemed to lack the capacity to use social media, the suggested restrictions were unnecessary and disproportionate.
Ineffective hearing
Whilst the Local Authority acted properly at the time of making the initial application in December 2021, it failed to comply with a number of the Court’s directions before the hearing in March 2022.
The capacity expert asked to assess Sarah was incorrectly instructed. This meant that the report only commented on whether or not Sarah understood using social media safely, not whether she had the capacity to make decisions in this regard. The assessor found that Sarah is able to understand and retain the information long enough to make a decision, able to weigh up some of the pros and cons, communicate her decision but could not weigh the risks to the extent that would keep her safe.
A social worker also provided witness evidence concerning what is in the best interests of Sarah. This statement recorded that Sarah was continuing to use Facebook and there had been no inappropriate posts found. This evidence was also described as uncompelling by the Judge.
Based on the evidence presented, it was highly unlikely that a Court would find that Sarah lacked the capacity to make decisions around social media, and even if it did, that preventing her use of that media would be in her best interests. In fact, the Local Authority’s statement which was filed 48 hours late and only a day before the hearing, admitted that its evidence was insufficient. It naturally followed that the hearing was ineffective and costs were ordered against the Local Authority.
In what circumstances should social media and internet use be restricted?
Daily reliance on social media has become the norm for most of us and so this is undoubtedly a very difficult decision for a Court to make.
We have seen from these proceedings that the Court will require highly compelling and persuasive evidence to depart from the presumption (starting point) that an individual has the capacity to make decisions about using social media.
In this case, the Judge commented that:
“Restrictions and prohibitions on social media use are profoundly significant for Sarah as a young woman used to using and perhaps living on that media. Equally, if she were able to use that media it could expose her to serious risk…”.
The Local Authority’s evidence clearly fell below the threshold required to prove to the Court that restrictions should be placed on the Protected Party’s internet and social media usage.
As similar cases are likely to arise in the future, such a decision will involve an extremely detailed balancing exercise to determine which restrictions, if any, would be in a Protected Party’s best interests taking into account all of the circumstances.
How can we help
Shrdha Kapoor is a Trainee Solicitor in our Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please contact Shrdha or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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