Re M [2015] EWCOP 69

This case concerned long-running proceedings relating to a young man aged 26, M, and had been ongoing for two years. His parents E and A, whilst the court found they greatly loved their son, had, in an earlier judgment of Baker J, (Re M [2014] EWCOP 33] found that whilst M had ASD and a learning disability, his parents had fabricated his reaction to an MMR vaccination. They had claimed it had caused autism in M and had given many fabricated accounts as to his health, caused M to be subjected to unnecessary tests and interventions, failed in relation to dental treatment to obtain treatment and E as M’s deputy had controlled all aspects of his life and restricted access to him by number of professionals. The court found that these behaviours amounted to factitious disorder imposed on others and additionally E had a combination of personality disorders – narcissistic, histrionic and emotionally unstable.
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The key issues in this judgment focused upon the identity of the deputy, deprivation of liberty, disclosure and publication of information relating to proceedings and some miscellaneous issues​.

Decision
Deputyship
In relation to deputyship the parties eventually agreed that a deputy should be appointed for both property and affairs and health and welfare. The court considered section 16(4) Mental Capacity Act and chapter 8 of the Code of Practice together with Baker J’s own observations in the earlier case of G v E [2010] EWHC 2512 (Fam).

The focus was the identity of the deputy. The local authority proposed an employee of the local authority, Y; and the parents proposed a solicitor, Z. The Official Solicitor took a neutral stance. The court reviewed the abilities of both Y and Z and found that it was a finely balanced decision but in the end decided to appoint Z as deputy. One of the reasons given in paragraph 25 was:

“the fact is however that she [Y] is employed by the same local authority which has been responsible for taking and prosecuting these proceedings. As a result, it is, in my judgment, very unlikely that she would ever have the full trust and confidence of E and A. I have already found the multiple criticisms levelled by E and A at the social workers in this case to be almost completely unjustified and I have no reason to question the integrity or professionalism of anyone within this local authority. But, in my judgment, it is essential that the new deputy is given the best opportunity to forge a good working relationship with everyone case, in particular E and A and, therefore, if possible, must be not only independent of the local authority but seen to be independent”.

Deprivation of liberty
The court reviewed article 5 and the well-known case of Cheshire West. The court found at paragraph 34 that perhaps E and A misunderstood the purpose of the court being asked to authorise the deprivation of liberty: “it is not to imprison or stigmatise, rather to protect him”.

The court applied the acid test identified by the Supreme Court and found it was “manifestly satisfied” [para 35]. Accordingly, the judge made a declaration and directed a further review by the court in 12 months.

Disclosure
The court had made a previous order set out at paragraph 37 in the order of 11th of August 2014:

“E and A shall not, whether by themselves or encouraging any other person to do so, disclose or publish any information relating to these proceedings to any person, including any legal organisation, save for their legal representatives.“

The court considered the Court of Protection Rules 2007 90, 91 and 93. The general rule is that proceedings are held in private (section 12 Administration of Justice Act 1960). Rule 91(3) says that the court may authorise the publication of information so as to authorise what would otherwise be a contempt of court, but in doing so may also impose wide-ranging restrictions on the publication of the identity of any party or other relevant person. Furthermore, an order authorising publication can only be made where it appears to the court that there is a “good reason” for making the order.

The court reviewed the authorities set out in paragraph 39 and also considered practice guidance published by the President on transparency in the Court of Protection dated 16 January 2014. The parents had filed a specific COP9 application to their opposition to the continued anonymisation in the published documents of both the local authority and individual social workers.

Two leading authorities were considered: Lord Judge LCJ  in Independent News media v A [2009] EWHC 2858 (Fam) at paragraph 10 and the President in Re J (Reporting restrictions: Internet video) [2013] EWHC 2694 (Fam) at paragraphs 36 to 40.

Baker J, applying those principles and reiterating that his order should do no more necessary to protect M’s interests (paragraph 43) concluded:

” without such restriction, there is a significant risk that M could be identified because of the highly unusual facts of this case”.

Accordingly, the parents application was rejected and in particular in 44(3) he said:

"no person shall disclose or publish (in any form whether in a newspaper or broadcast or via the Internet) any documents filed in these proceedings to any person without the prior permission of the court”.

The caveat to this was that the parties may disclose papers filed to their legal advisers and M’s deputies for health and welfare and property and affairs. The parties were also at liberty to disclose the official transcripts of the judgments dated 11th August 2014 and 7th July 2015 to any person provided that they bring to that person's attention the warning notice in relation to the restrictions on publication on the face of the judgment.

Miscellaneous

• The court declined to reopen any inquiry into issues of contact protocol and M’s activities.
• The court maintained a provision in the order that communications with other professionals and E and A to be in writing via M’s deputy or otherwise with the consent of the deputy.
• Permission was given to the local authority to disclose the judgment of care plans and contact protocols to medical professionals and any advocate concerned with M’s care and welfare despite E and A’s objections that they would be “maligned”.
• A penal notice was placed in the order directed at E and A.
• The court rejected a recital that the court found neither E or A suitable persons to act as litigation friends. The court included within the deputy’s terms of reference a provision that X should be allowed to act as litigation friend in all proceedings in respect of M from this point.
• Change of social worker – an application made by E and A was rejected.
• In relation to further applications, whilst there is no power akin to section 91 (14) Children Act 1989, the court was invited to use its inherent powers to restrict applications – considering the case of Bhamjee v Forsdick and others (No 2) [2003] EWCA Civ 113. The court rejected this application but directed any application issue shall in the first instance be referred to Baker J for further directions.

Discussion
This case should act as a solitary tale for those intensely involved in the welfare of their loved ones. Whilst no doubt every sympathy should and would be extended to parents who have perceived their child to have been adversely affected by, in this case, the MMR vaccination, what transpired after that has been a sorry tale over two years plus litigation with very serious findings made against them as parents.

Whilst the court refers to the potential for further applications (paragraph 45) in the future it does not actually consider that these parents should enter into mediation. Given the ongoing nature of the dispute this might have been a way to allow M’s parents to step back and use mediation to look with different eyes to what has transpired so far to see whether the future can be looked at in different light.

Read the full text of the judgment on Bailii