Most of us are used to the idea that the law treats us differently when we turn 18. We gain greater freedom; we lose access to certain public resources. For those growing up subject to a Care Order, or with a high level of care due to a disability, this transition is all the more complex. These young people move not just from one category to another, but between jurisdictions. How differently does the law treat young people who ‘graduate’ from the family law jurisdiction to that of the Court of Protection? How great a difference in treatment should there be? This article will examine two cases reported in 2015 in an attempt to shed some light on these questions.
Access to public resources The first case, Re MN  EWCA Civ 411 was widely reported. Sitting in the Court of Appeal, the President of the Family Court and the Court of Protection, Sir James Munby, made an understandable effort to tie the principles and practices of the two jurisdictions together. MN was a ‘profoundly disabled’ young man, lacking capacity to make decisions relating to his care and contact with others. At the age of 8, he was made subject to a Care Order and moved to a residential placement. At the age of 18, the responsibility for funding his placement transferred to the relevant Clinical Commissioning Group (CCG). This included responsibility for funding supported contact with his parents in the community.
The parents wanted contact with MN at their home. The CCG was not offering this as an option. It would have necessitated the employment and training of alternative carers from a third party, and in any event was not considered to be in MN’s best interests. Was the Court’s scrutiny of the CCG’s position any different from that of a family judge assessing the local authority’s care plan in proceedings under the Children Act? Not at all, according to the President:
‘In my judgment exactly the same principles as apply to care cases involving children apply also as to personal welfare cases involving incapacitated adults, whether the case is proceeding in the Family Division under the inherent jurisdiction or, as here, in the Court of Protection .’ (para )This common ground includes the principle that ‘rigorous probing, searching questions and persuasion are permissible; pressure is not’ (para ).
It is not surprising that the President of both jurisdictions should seek to achieve some consistency between them. But is this the case, and does Strasbourg case-law support the application of ‘exactly the same’ principles to children and disabled adults?
The case cited by the President as the benchmark for the scrutiny of local authority care plans is para  of Re B-S  EWCA Civ 1146, in which rigorous probing and exploration are indeed mentioned. The full paragraph, however, runs as follows:
'It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking.'The principle implicit in this paragraph is that resource considerations do not justify an otherwise disproportionate interference with a family’s Art 8 rights, and therefore cannot form part of a local authority’s thinking. It is entirely justified in this context, of course, deriving as it does from the Supreme Court’s decision in Re B  UKSC 33, and its prohibition on greater interference with a these rights than is demonstrably necessary.
This principle does not apply in a commissioning context. Here, the public body in question is not simply intervening in the life of one individual, and incurring resource obligations in the process. The CCG exists to serve all the individuals for which it is responsible. In such circumstances, the speech of Lord Bingham in R v Cambridgeshire Health Authority  remains good law, and resources are inevitably part of the CCG’s thinking:
'I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet … Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.'One explanation for the contrast between this representation of commissioning principles, and the welfare principles outlined by Munby in Re MN, is the different focus of the respective judgments. The appeal in Re MN concerned the role of both the CCG and the local authority in MN’s care. However, the majority of the judgment deals with the restrictions placed by the local authority on parental involvement in MN’s ‘intimate care.’ This was the aspect of the case which concerned intervention in MN’s family life, as opposed to the funding of his care.
It is therefore less surprising that the judgment includes multiple references to Article 8 ECHR, but none to Article 5. The latter is of course the provision which led to the establishment of the Court of Protection via the Bournewood case, and then threw its gates wide open in Cheshire West. It is the right to liberty which underpins the Mental Capacity Act 2005, just as the right to family life under Art 8 informs much of the Children Act 1989. It is also the right to liberty which, in Cheshire West, was construed by Lady Hale as the right (to the greatest degree possible) to be treated like everyone else of the same age and situation, regardless of any disability.
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