Court Of Protection Appeal: J (By His Litigation Friend, The Official Solicitor) v Luton Borough Council

When appealing a Court’s decision, the appellant must show either the Judge erred in law or, there is new evidence available which changes matters.

When appealing a Court of Protection decision, the fundamentals remain the same with any decision needing to be in the Protected Party’s best interests. An appeal in the Court of Protection would therefore be made on the basis that new evidence suggests the decision made was not in the best interests of the Protected Party or, the Judge made an error in the assessment and application of the Protected Party’s best interests.

J v Luton Borough Council & Ors [2024]

Background

A recent Court of Protection decision appealed to the Court of Appeal was J (by his litigation friend, the Official Solicitor) v Luton Borough Council and others. The Court was initially required to consider many decisions of the Protected Party in the case due to its facts.

The case concerned a young man originating from Afghanistan whose family sought to take the Protected Party back on holiday for the purpose of considering an arranged marriage and bringing the proposed wife back to the UK. The Protected Party was assessed as lacking the capacity to marry and engage in sexual relationships which resulted in the marriage being blocked, however, the family later sought for the Protected Party to still travel to Afghanistan.

The Protected Party was assessed to lack capacity regarding that decision and the Court of Protection was required to make a best interest decision. The Court of Protection noted the benefits to the Protected Party in traveling to Afghanistan which would allow him an opportunity to visit family and experience his culture.

The severe risks in travelling to Afghanistan were also highlighted in that the Foreign, Commonwealth & Development Office (FCDO) advised people not to travel there due to the heightened threat of terrorist attacks and the detention of British nationals.

In weighing up the benefits and risks the Court held it was not in the Protected Party’s best interests to travel to Afghanistan, highlighting whilst the family may perceive the risk to be minimal, in the event of an incident there would be little to no support available for the family in Afghanistan and the support the Protected Party receives in the UK is unlikely to be replicated in Afghanistan.

That decision was appealed shortly after on the following grounds:

To support ground 1, it was submitted the Court of Protection treated the FCDO advice as decisive and failed to pay sufficient weight to the Protected Party’s own wishes and feelings.

In support of ground 2, it was submitted if not for the Protected Party’s cognitive disability he would have been free to ignore the FCDO advice. It was further submitted that the Mental Capacity Act 2005 confirms an unwise decision does not mean that the decision is made without capacity and the Protected Party’s wishes should not be treated to be a result of his assessed capacity.

In considering the appeal, the Court noted the predominant risk was that the Protected Party would be detained in Afghanistan and become unable to return to the UK where he was receiving essential levels of support. The Court held the initial Judge considered all of the relevant factors in reaching the decision and reaffirmed that decision, dismissing the appeal. The Court advised the Protected Party’s capacity may be furthered by education in order to allow the Protected Party to make the decision himself in the future.

Comment

This case confirms that the appeal of a Court of Protection judgment remains to focus on the Protected Party’s best interests and unless it is held the initial decision was not in the Protected Party’s best interests, an appeal will be dismissed.