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Court of Protection proceedings will generally be brought to an end once a Judge has made a final decision on the main issue or issues in the case, although even then this will often be subject to an ongoing review where necessary. By way of example, when the Court is asked to decide where a protected party should live – which can be a particularly tough decision if there is a tug-of-love between relatives in different locations, and if the protected party has complex care needs – the available and realistic options will be presented before the Court and the Judge will decide which of them is in the protected party’s best interests, according to the best interests criteria. But what happens when none of the options available to the Judge are suitable?
This was the scenario a family Judge was faced with in the case of Re W (young person: unavailability of suitable placement) [2021] EWHC 2345 (Fam) and the scenario would have led to similar difficulties in the Court of Protection.
Re W (young person: unavailability of suitable placement) [2021] EWHC 2345 (Fam)
Case summary
This case, which was heard several times, centred around a protected party (W) who was 15 years of age and suffered from mental distress difficulties and displayed evidence of self-harm.
During the proceedings, the Local Authority had applied for a deprivation of liberty order and had W detained in an adult ward in a general hospital, as W was deemed to be a risk to herself. It was agreed by all parties though that this placement was not suitable for W in the long run. The question the Court had to decide was which form of accommodation would best suit W given her health needs.
The Court considered moving W in with her mother. W’s mother, however, could not cope with caring for W alone and wanted help from the Local Authority. This presented practical difficulties and medical advice suggested it would be too much of a risk. With this option off the table, the Court, unfortunately, had to extend W’s stay in the general hospital whilst the Local Authority was directed to set out alternative possibilities.
The Local Authority asked for an interim care order to ensure W was protected suitably. This was not opposed. Suitable alternative accommodation had now been identified but it was not approved as it was not regulated by Ofsted. The Court was presented with a few other options, none of which were appropriate for W in the long term.
Under pressure to make a short-term decision, the Court had to consider what was in W’s best interests given her unique needs and circumstances. It had become clear that whilst a change in accommodation presented its own difficulties, it was clearly not appropriate for W to remain in the general hospital and on the adult ward as evidence had been produced which suggested it was becoming detrimental to her health. The temporary accommodation was a better alternative than the current placement, despite the fact that it fell short of what was required.
Comment
This decision, and the issues in this case generally, reaffirms that any decision made by the Court will be based on what is considered to be in a protected party’s best interests in the specific circumstances. It also serves to demonstrate that, unlike many civil cases, the concept of best interests is so complex that the predictable structure of a civil case heard under the CPR is not always appropriate, and proceedings will continue until the right solution can be found for a protected party.
How Nelsons can help
Stuart Parris is an Associate in our expert Dispute Resolution team.
If you have any questions in relation to the subjects discussed in this article, please contact Stuart or another member of the team in Derby, Leicester or Nottingham who will be able to assist. Please call 0800 024 1976 or contact us via our online form.