What now for deprivations of liberty?
What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.
SPOTLIGHT |
A High Court judge has given her reasoning why she would have rejected a local authority’s application for an injunction under the Court's inherent jurisdiction preventing a husband living in a property with his wife, had it not been withdrawn.
In London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam) the council had applied to withdraw its application after the first day of hearing when evidence had been given by two social workers. Counsel for Croydon accepted that in light of the oral evidence his case could not proceed.
The proceedings concerned KR, a 59-year-old man who is seriously disabled having suffered a life changing brain injury in 2004 after an attack.
It was accepted that KR has capacity to make decisions as to where he lives and who he lives with. He therefore did not fall within the scope of the Mental Capacity Act 2005.
Mrs Justice Lieven gave permission to Croydon to withdraw its application but said she would give a full judgment.
KR and his wife, ST, had been married for 40 years. ST herself has considerable vulnerabilities, the judge said. She is recorded as having been diagnosed as having bipolar affective disorder and emotionally unstable personality disorder. She reports a history of depression and has twice in recent years been detained under s.2 of the Mental Health Act 1983 (but not s.3).
There was also a very clear record of problems with alcohol and this was undoubtedly part of the background to the problems which had arisen, the judge said.
In 2015 KR moved from a care home to live with ST in a one-bedroom council flat in Croydon. From this point onwards ST became his primary carer. She is said to have been having to sleep in the living room on a sofa whilst caring for KR.
A safeguarding assessment in July 2016 stated that KR had a bloody face and black eye and reports that KR had said that he wanted to leave and go into a care home before ST kills him. He later confirmed that he did not wish to go into a care home.
“There follows a sad pattern of concerns around KR's care, and allegations of domestic abuse between ST and KR, with the allegations pointing in both directions. It is right to note at this point that KR, because he cannot mobilise, is necessarily very vulnerable to any physical assault,” Mrs Justice Lieven said.
The judge said it seemed to her that the local authority had perfectly valid safeguarding concerns about KR's care, and that the couple have had “a troubled and at times highly antagonistic relationship”.
In late 2018 and early 2019 there were a number of developments:
In her ruling Mrs Justice Lieven said she was “seriously concerned about the discrepancies between what some of [the] background documents showed and what was said in the evidence to the court, particularly in the first witness statement of [a social worker], which was the basis of the without notice order.
“This case commenced with an application for an injunction without notice. It continued through a series of interim injunctions where the judges necessarily had very limited time to examine background documents, even if they had been exhibited, which in key instances they were not. It is trite law that when a without notice injunction is applied for there is a duty of full and frank disclosure and there is in any event a duty on any claimant not to mislead the court. This is just as true in proceedings like this as in the Commercial Court or Queen's Bench.”
The judge said that it was relevant that the injunction sought was “not just draconian it was deeply intrusive into the private lives of two adults with capacity”.
Referring to the European and domestic caselaw on the importance of the State not interfering into individuals' marriage, she said the obligation for full and frank disclosure was “as important if not more important, than in any other form of litigation”.
Mrs Justice Lieven added: “I appreciate local authorities are hard pressed, and poorly resourced, however the importance of ensuring the Court is possession of all the relevant facts at a without notice injunction application cannot be overstated.”
The judge said she was sure that the social worker was not intending to mislead anyone [about KR’s isolation from his carers and the number of unaccounted for visits], but there was a lack of attention to the background documents, and a failure to present the full picture “which is very concerning”.
The effect of this situation was that the evidence before Cohen J painted a significantly more troubling picture of the degree to which ST was preventing carers seeing KR, and therefore suggesting that KR was at much greater risk, than the true evidence suggested, Mrs Justice Lieven said.
“It is not obvious that Cohen J would have granted the draconian order sought if he had known that ST was not stopping carers anywhere near as often as the LA had suggested, or that only a few weeks earlier the care agency had reported that ST did allow them access.”
Mrs Justice Lieven said she had to answer the following questions:
She concluded that:
Mrs Justice Lieven therefore found that the risks on the facts of this case did not justify the interference under article 8(2). “Further I find that the LA has not properly considered whether there are less intrusive means by which KR could be properly protected. In these circumstances I find that making the order sought would not have been necessary or proportionate.”