A Local Authority v H [2023] EWCOP 4

Judgment concerning the capacity of an eighteen year old who has had her liberty restricted because she presents a risk to others. ​

H, who was born male but now identifies as female, has many complex psychological challenges including global developmental delay, attention deficit hyperactivity disorder and a possible emotionally unstable personality disorder. When ‘dysregulated’ her behaviour presents a real risk of sexual harm to children, both in contact with them and online. At her current placement H’s liberty is restricted and she supervised 2:1 and checked every hour, though H seemingly acquiesces to the regime for her own good. In this hearing, Hayden J was considering H’s capacity to make decisions about residence; care/support; contact with others (both adults and children); and the use of the internet and social media.

In this judgment Hayden J, the Vice President, sets out in some detail the relevant statutes and case law relating to capacity. In particular he notes that “though a person may be unable to use and weigh some information relevant to the decision in question, they may nonetheless be able to use and weigh other elements sufficiently to be able to make a capacitous decision” (Re SB). He goes on to state the evidence is clear, agreeing with the expert psychologist, that H is unable to make capacitous decisions when she is ‘dysregulated’ and while “H plainly has some insights into her behaviour, it remains incomplete”. At [31-36] Hayden J explains his reasoning behind the RRO - only accredited journalists and legal bloggers were allowed to remain in court - as the risks to H’s privacy and safety, given her gender status, meant the competing rights and interests fell firmly in favour of her Art 8 rights.

Read the full judgment on Bailii.