Case Summary: Re NB [2017] EWCOP 16

Court of Protection case summary

19/01/2018

This case will be of interest to commissioners, providers and care co-ordinators in considering residence where P constantly expresses a wish to live elsewhere other than their current placement, no matter where they are placed. This case also considers reducing contact with family members where it is clear that more frequent plans for contact are having a serious adverse effect on P.

Case

Re NB [2017] EWCOP 16

Relevant Topics

  • Reducing contact with family members
  • Residence
  • P's wishes
  • Best interests

Practical Impact

  • Where P has a pattern of expressing a preference for alternate accommodation no matter where they live, the judge may decide not to give decisive weight to their expressed wishes on residence;
  • Contact with a family member may be reduced where it is clear that the more frequent plans for contact are having a serious adverse effect on P, their placement and their wellbeing.

Summary

 

The issues before the court in this matter were:

  1. Where NB should reside;
  2. Restrictions on NB's contact with her mother, VW.

Residence

The only option before the court was for NB to reside at Address 2. NB had stated that she did not wish to live there, and wished to live somewhere else. However, the judge considered the evidence whereby it was clear that NB had expressed the same wish to live elsewhere when she lived at Address 1, and concluded that NB's stated wishes in respect of Address 2 could not be given decisive weight. The judge was satisfied that it was in NB's best interests to continue living at Address 2.

Contact

The evidence before the court was that VW had refused to comply with any level of regulation in respect of the contact arrangements in place at the time, and that VW arriving late, failing to turn up for contact, or threatening not to come was a trigger for NB's challenging behaviour. It was stated to be important to establish predictability and routine because of NB's autism. Unplanned, unregulated and unpredictable contact was having a serious adverse effect on NB's behaviour, and therefore the stability of the placement at Address 2 and NB's wellbeing.

The judge therefore concluded that it was in NB's best interests to reduce NB's contact with VW, and so far as this amounted to an interference with Article 8 rights, this was considered to be necessary and proportionate.

Background

At the time of the proceedings, NB was 23 years old. She has a diagnosis of autism, high levels of anxiety and a history of early childhood trauma.

NB moved to Address 1 in April 2016 and (what was intended to be) a final order was made on 3 May 2016. Weekly contact with her mother, VW was agreed, and set out in a schedule. All contact was to be planned in advance using contact plans.

On 25 May 2016 the local authority made an application for further directions as NB had failed to return to Address 1 after a contact session with VW, and was staying at the family home. VW subsequently gave undertakings in court on 27 May in respect of arrangements to secure NB's return to Address 1. Those undertakings were met, and NB returned to live at Address 1 on 3 June 2016.

NB continued to present with challenging behaviour and was subsequently served notice in September 2016. Address 2 was eventually identified as an alternative placement, and NB made it clear to the court that it was her desire to move there.

NB moved to Address 2 on 16 December 2016. At around the same time VW took a month's holiday in Jamaica. The trip was not sensitively explained to NB who was very distressed by the lack of contact in this period.

At the hearing on 2 February 2017. VW made an oral application for NB to return to live at the family home. That application was summarily dismissed at the time. In view of behavioural challenges being exhibited by NB, a section 49 report was directed to be prepared by Dr Hall and Dr Kabir with particular reference to strategies which may be deployed to minimise behaviours so as to give NB the best chance of settling in to her new home.

The local authority subsequently made an interim application to restrict VW's direct contact with NB fortnightly on an agreed and predictable day of the week for a specified period and to her restrict her telephone contact to twice a week on regular and specified days.

The local authority and the Official Solicitor were agreed that the court should be invited to make final orders providing for NB's continued residence at Address 2 with arrangements for contact with VW defined.

The evidence before the court was that the contact arrangements in place at the time of the hearing had "proved extremely difficult to manage in practice, mainly due to VW's refusal to comply with any level of regulation." There was also evidence that VW arriving late, failing to turn up for contact or threatening not to come in future was a trigger for NB's challenging behaviour.

The section 49 report of Dr Hall and Dr Kabir confirmed that for a placement to be able to succeed, NB would have to receive a consistent message about its permanence. Regarding contact, they concluded that "Because of her autism, NB really values predictability and routine, and can get very upset if things do not happen as she expects them… it is our opinion that any contact between VW and NB should happen in a planned way to help minimise the potential distress of not knowing… The activity for contact also needs to be planned, and to fit in with the overall plan for the management of NB's behaviour."

The placement at Address 2 was the only option before the court. Although NB expressed a wish to live somewhere else, the judge accepted the professional evidence that, in order to maximise the prospects of success of the placement, NB needed to be given a consistent message about its permanence. The judge noted NB expressed the same approach to her move from P House to Address 1, and therefore concluded that NB's stated wishes in respect of Address 2 could not be given decisive weight. The judge was therefore satisfied that it was in NB's best interests to continue living at Address 2.

Regarding contact, the judge noted that contact had not been taking place as often as had been envisaged, and accepted the evidence that contact had become unplanned, unregulated and unpredictable, and that this has had a serious adverse impact on NB's behaviour, and therefore the stability of the placement at Address 2 and NB's wellbeing.

The judge therefore concluded that in order to preserve all that is positive in the relationship between NB and VW, it would be necessary and proportionate to provide for direct contact between them to be reduced to fortnightly and in accordance with a planned timetable. This arrangement would be within what is realistically achievable by VW and in the best interests of NB. So far as this amounted to a breach of Article 8 rights, this was considered to be necessary and proportionate.

Key Findings
  • It was in NB's best interests to reside at Address 2, despite her expressed wishes to reside in alternative accommodation;
  • It was necessary, proportionate and in NB's best interests to reduce frequency of contact with VW, due to the serious adverse impact this was having on her behaviour and wellbeing, and the subsequent impact this had on the stability of her placement.

 

This case summary was written by Sumayyah Malna, Solicitor.

Please contact Sumayyah Malna if you wish to discuss this case or any related topics further. 

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.

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