Re PL [2015] EWCOP 44

Health and welfare application by a local authority seeking declarations:

1. to move the Patient, PL, to OL, a care home in Lincolnshire (currently PL resides in Dorset); and
   
2. that it is in PL’s best interests to have restricted and supervised contact with his mother, AL, at an off-site location.

The official solicitor on behalf of PL and the applicant local authority, having considered the options of another care home, CC, and OL, maintained that OL was the most suitable and would be in PL’s best interest to move to OL. AL believed it to be in PL’s best interest to move to CC.

In relation to contact the court did not undertake a  factual enquiry as to what may or may not have led to the breakdown of the relationship between AL and staff at the current home BH.

Background
PL is aged 19, diagnosed with autism and severe learning disability and lacks capacity to conduct proceedings or to make decisions regarding residence contact and his care. 

PL is not able to verbally communicate but he can vocalise and whistle and also is able to use the PECS symbols and a choice board to indicate basic decisions. He has no awareness of risk and can exhibit some challenging behaviours that present a risk to him and others such as pushing, grabbing and biting. PL had attended specialist schools since the age of four and has moved to various placements – geographically this has meant in the past his mother, AL, has had to move herself in order to be closer to PL and spend time with him.

PL has been subject to a standard authorisation under the deprivation of liberty safeguards (dols) which expired on 17 December 2014 and his continuing deprivation at BH has been subsequently authorised by the court.

The proceedings arose because BH the current care provider gave notice they were no longer able to offer placement PL claiming that AL’s behaviour throughout PL’s placement made the placement unsustainable and had a significant impact upon the service they could provide. The proceedings were pre-empted by AL’s application for deputyship on behalf of PL – this was rejected by District Judge Mort who directed an independent social work report be obtained in respect of  PL’s  best interests.

During the course of the preparation of evidence for the hearing but very late in the day and just prior to the final hearing, AL asked the local authority to consider a new placement, CC. The local authority had  already considered a number of possible placements and identified three potential care homes which might meet PL’s needs and had a vacancy, and subsequently produced a best interest decision confirming that they still considered the placement at OL would be in PL’s best interests. The local authority undertook an assessment and there was an addendum report prepared by the ISW in relation to a potential placement at CC. However it remained the view of the official solicitor and the local authority that OL was the most suitable option for PL and was in PL’s best interest .

PL’s father, AB, was not a party to the proceedings but had previously participated in best interests assessments – he maintained monthly contact with PL and expressed a view that OL would be an appropriate placement notwithstanding the fact that CC would be a more convenient location for travel purposes.

The social worker adopted a balance sheet approach in her statement looking at the assessment of CC and was clear in her evidence that there needed to be boundaries in place in relation to supervision of contact between AL and PL, that there should be set routines and given past difficulty there should not be any flexible arrangement. Given that the placement of OL was a long term option she considered that contact between PL and AL should be off-site.

The court recorded that AL loved her son very much and wanted to ensure that PL received the best possible care and support and understanding of his needs. The court said at paragraph 23 “the court can well understand the frustration of a mother who has spent some 19 years bringing up, caring for and visiting her son with whom she has a special relationship when she perceives others charged with his care may not be discharging those functions in necessarily the same way that she would.” The court went on to note that during AL’s evidence she was prepared to comply with restrictions on contact, restrictions on its regularity and where PL should live because “she loved her son”. The court noted that the source of the home CC had come from AL’s own diligent researches and she had produced documentation in response to PL’s social worker and the ISW in a reasoned format. She advocated that the home CC was at not some personal inconvenience to her given that she would probably have to relocate and noted the additional travel.

Decision
The court found the evidence of the social worker and ISW compelling not only in terms of placement but also in terms of contact. The court also accepted that on the evidence of the ISW there needed to be a transition period when contact does not take place until such time as PL had settled in; thereafter contact should be weekly for 2 hours duration and should be off-site.

The court therefore concluded as follows:

1. it is in PL’s best interest to reside at OL;
   
2. there should be a transition plan which would accommodate a further visit to OL by PL;
   
3. there should be no contact between AL or AB with PL for an initial six weeks to allow PL to settle;
   
4. thereafter contact with AB should be on a monthly basis;
   
5. contact with AL would be at an off-site location for duration of up to 2 hours every week;
   
6. contact be terminated in the event PL became overstimulated or anxious;
   
7. there would be a full review of contact arrangements after the initial six week period, thereafter a further six week review with a three month review before moving on in accordance with the social worker’s proposal to a six month review and then annual reviews;
   
8. there should be a limit on the numbers who attend on family contacts;
   
9. there would be an amendment to the draft order in relation to contact so as to provide for clarification as to where AL or AB could direct their concerns and observations in relation to PL’s care and support and there should be further clarification of the terms “overstimulated or anxious” so the staff could be clear in terms of boundaries.

Discussion
This case is of interest as it highlights the paucity of specialist provision and the subsequent need for geographical relocation of vulnerable incapacitated young adults. In terms of the breakdown of the relationship between PL’s mother, AL and the current care provider, BH, it is significant that the court did not undertake a factual hearing to determine the cause of the breakdown placement, notwithstanding the fact that it appears that this is in large measure reason for the restrictions placed upon contact and in particular it being ordered in future to be off-site at the new care home OL. It is also silent as to what steps have been previously taken by the care home BH, the local authority and AL (and possibly AB) to resolve disputed day-to-day issues by way of internal review or indeed mediation. Mediation will always be the preferable route prior to initiating any formal court application and yet it does not appear on the face of the judgment to have been undertaken or suggested.

Read the full text of the judgment on Bailii