Overseas travel for adults lacking capacity

What is in the best interests of a person with learning disabilities and lacking mental capacity when planning foreign travel? Gemma Eason and Emma Bergin analyse a recent Court of Appeal ruling.

The Court of Appeal case of J (by his Litigation Friend, the Official Solicitor) v Luton Borough Council [2024] EWCA Civ 3 concerned whether it was in the best interests of a young man (J) with severe learning difficulties to travel to Afghanistan with his family for a holiday. 

Background

J had moved from Afghanistan to the UK as a refugee and is now a British citizen. His family and J himself were in support of this holiday, but J lacked capacity to decide on whether he should go. 

In the urgent initial hearing at the lower court, the judge had made an order declaring that it was not in J’s best interests to travel to Afghanistan with his family. 

The Judge had met with J and heard evidence from his father and social worker. She also considered the Foreign and Commonwealth and Development Office (FCDO) publication ‘Travel Advice to Afghanistan’ from June 2023. 

In making her decision for J, the judge considered the FCDO advice, which was clear that there was a significant risk to any British nationals travelling to Afghanistan and she did not believe that the travel would be safe for J. 

She accepted that the trip would have benefits such as spending time with extended family, allowing J to enjoy the country’s culture as well as experiencing international travel. 

However, these needed to be weighed up against the potential harm to J in travelling, including no consular support and less access to the care and support required by J. 

Therefore, she concluded in an extempore decision, “there is no doubt in my mind that, but for the concerns reflected in the Foreign and Commonwealth Office guidance, this would be a positive and beneficial trip for him to make,” and rejected the family’s application for permission to travel. 

The Appeal

The Official Solicitor on behalf of J appealed on two grounds. 

These were: 

1. That the Judge had failed to properly analyse the best interest considerations for various reasons including adding too much weight to travel guidance and not giving any weight to J’s wishes and feelings, values and beliefs and 
2. That the decision amounted to discrimination on the grounds of disability as had J been able to make his own decision, he was likely to have gone to Afghanistan. 

The Official Solicitor put forward the argument from previous case law that “the purpose of the best interests test is to consider matters from the individual’s point of view, and that insofar as it is possible to ascertain his wishes and feelings, his beliefs and values or the things which are important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being”. 

The Court of Appeal judges held that the original judge had taken into account everything she was obliged to consider in determining best interests. 

The judge had met with J and heard witness evidence as well as giving an extempore judgment in urgent circumstances. 

The Court of Appeal felt that the judgment made it clear that J’s views had been considered as well as the family’s views. It was accepted that the judge had all the matters in mind, but the fact that they were not all mentioned within the Judgment - due to the urgency of the hearing - did not mean that she had failed to carry out a balancing exercise. 

The FCDO guidance was, in the view of the Court of Appeal, not viewed incorrectly; the Judge clearly completed a balancing exercise “taking account of the nature, likelihood and consequences of the feared harm”. 

Although on this occasion, the outcome was not in line with J’ s own wishes, it did highlight some important factors to consider in any balancing exercise: “when assessing risk in cases of this nature, it is important that the fullest consideration is given to the importance of a person’s heritage and family relationships, with an awareness that an unduly risk-adverse approach can itself cause harm or welfare disadvantage” 

The Court of Appeal agreed that the judge had followed this approach, but in the circumstances, the risk to J in going outweighed the harm and disadvantage referred to above. 

Heritage and family relationships need to be weighed up

The judgment, therefore, adds emphasis to the requirement in section 4(6) of the Mental Capacity Act 2005 to, so far as reasonably ascertainable, consider the person’s beliefs and values when making a best interests decision. When considering this, a person’s heritage and family relationships will be an important factor to weigh.  

Gemma Eason is a Senior Associate Solicitor and Emma Bergin is a Solicitor at Irwin Mitchell. This article first appeared here.

Find out more about Irwin Mitchell's expertise in supporting families affected by decisions involving capacity disputes and best interest decision making on behalf of people who lack mental capacity at its dedicated protecting your rights section.