Re CA (Fact finding – capacity – inherent jurisdiction – injunctive relief) [2024] EWCOP 64 (T3) is a decision which is very helpfully summarised in the case title. In headline terms, it involved the court having to decide what to do, and how to do it, to secure the interests of CA, a 79 year old woman with dementia. Her daughter, DA, held lasting powers of attorney in respect of her mother’s property and affairs and health and welfare.
Arbuthnot J found, after conducting a fact-finding hearing, that:
63. Overall as I look at the evidence as a whole, I find that DA fails to make any allowances for her mother’s age and frailty. She is hoping that by force of her personality she can keep her mother healthy and able to look after herself. There is no doubt in my mind that mother and daughter love each other deeply and DA has certainly cared for her mother as much as she is able to.
64. I am concerned too that DA has persuaded her mother that she is lazy and stubborn and that her failure to look after herself better is her own fault. I consider that that view has arisen from what CA has been told repeatedly by DA in the same way that CA’s fear that she will be moved into a care home comes from her daughter and indeed EA on 20th November 2023, when the court and the local authority have been at pains to make it clear that that was not – and is not – the intention.
65. To that end, DA bullies and forces her mother to do the things that she believes will keep her alive for longer. When she force-feeds her it is because her mother is not eating enough and she has had anorexia. Their relationship of verbal abuse is mutual, but CA is ageing and getting increasingly frail and deserves a different approach from an adult daughter.
66. I am no expert, but after seeing DA in court in the four-day hearing and on other occasions before this, it is the daughter’s personality issues that lead her to treat her mother in the way she does. She lacks self-control and in particular she is unable to control her anger at times. CA describes her daughter as bullish and brutish, and I agree with that description. It is a dysfunctional, volatile relationship with a mother and daughter who are enmeshed and depend on each other emotionally.
67, I have carefully considered DA’s argument that the local authority are “out to get her” (my words, not hers). This is simply not the case. The safeguarding concerns originated from the hospital where any number of different staff reported DA’s concerning behaviour towards her mother. These complaints then continued via the care agency. The social work team have primarily gathered the information together to get a picture of the relationship and the way this elderly lady is treated by her daughter.
68. There is no protection for CA from other members of the family. EA [DA’s ex-husband] leads his own life and to the extent he steps in, he has swallowed his daughter’s story that the local authority is prejudiced against her and wants to put her mother in a home. CA’s son has only a limited involvement with his mother, and I suspect is only too glad to leave everything to his sister. DA’s partner is one step removed from CA, but there is no evidence he would mistreat CA.
69. Finally, at times CA has told the court that her daughter did not force-feed her. Indeed, in court on 2 October 2024, she said the force-feeding had not happened, but in the near past including to Dr Barker on 20 August 2024, she was less certain and has complained of her daughter pulling her hair. I certainly do not consider her accounts help me to determine either way the truth or otherwise of these allegations.
70. It was clear that CA is subject to the undue influence of her daughter in a number of different ways. One example is above, what CA said in court on 2 October 2024 when her daughter was next to her, it is clear (and on a number of other occasions) that CA says what she thinks her family would like her to say.
71. On the balance of probabilities, I find the allegations proved.
The question of CA’s capacity in the material domains was one that both the expert instructed and Arbuthnot J clearly found somewhat difficult, but ultimately she reached the conclusion that CA lacked capacity to conduct proceedings and to make decisions concerning her care and her property and affairs. Indeed, ultimately, neither CA’s daughter nor CA’s ex-husband (the third respondent) contested these conclusions. The conclusion as to whether CA had capacity to make decisions about unsupervised contact was more finely balanced, but ultimately Arbuthnot J agreed with the expert that,
124. […] applying the presumption of capacity, CA was making unwise but capacitous decisions about contact with DA. It is a relationship that is of great importance emotionally to CA and although DA is as CA says “brutish” and “bullish” she is doing her best to keep her mother alive and as healthy as she can persuade her to be. CA recognised the relationship had negatives but considered the positives, outweighed these. I found in this finely balanced case that she had capacity to decide on unsupervised contact.
Arbuthnot J also found that CA had capacity both to enter into and to revoke an LPA for health and welfare. To work out what to do in relation to the LPA, she had to change her judicial headgear to wear the hat of a High Court judge exercising its inherent jurisdiction over the capacitous but vulnerable. She found that CA was clearly within the scope of the jurisdiction, and that there was no other statutory scheme which could be used to protect her from the contact risks posed by her family. This therefore meant the inherent jurisdiction was in play:
138, The test which must be met before the inherent jurisdiction could be engaged to regulate contact is whether the proposed intervention, here supervised contact, is necessary and proportionate.
139. I heard evidence from Ms Haverson, NCC’s Adult Team Leader. She provided a graph which showed that DA’s behaviour towards her mother had improved markedly in recent months since their contact had been supervised, since proceedings had been on-going and since allegations of breaches of undertakings DA had given had been made.
140. The risks of future harm to CA remain at present. CA needs to be protected from the harm particularly from DA but also from EA, CA’s ex-husband. Another risk to CA is from DA’s misuse of the LPA for health and welfare. As Mr Lewis observed in his position statement on behalf of NCC, such was the extent to which DA sought to exercise control over CA, that she purported to make best interests decisions for DA as health welfare during a long period of time when DA believed CA had capacity to decide on her care, knowing that she had no lawful authority to make these decisions.
141. The proportionality of any proposal had to be considered. I noted that the number of times that DA and EA can see CA and the time they spend with her is not limited in any way. There are no restrictions on DA’s partner’s contact with CA. The continuation of supervised contact is the least intrusive measure commensurate with the risks I have found in CA’s relationship with DA.
142. It should not remain in the long term but I have decided to direct the parties to jointly instruct an independent psychological expert to consider the family relationships and how they can be managed so that CA remains safe when she sees her family. It may then be possible for unsupervised contact to take place. Using the inherent jurisdiction to impose a supervised framework around contact is a temporary way of ensuring that CA can be safe. All contact that CA has with DA and/or EA will accordingly be supervised by one of CA’s professional carers, but, at NCC’s suggestion supported by the Official Solicitor, I will impose no limit as to frequency or duration.
As regards the question of what to do with the LPA:
143. In terms of the LPA, Mr Lewis for NCC submitted that there were three approaches that could be taken by the Court now the Court had found that CA had capacity to make and revoke the LPA. The Court could revoke the instrument which he contended would be the “smoothest and clearest remedy”. It would avoid arguments between DA and NCC when DA was constantly suspicious of NCC’s motives and thought she was in a battle with the local authority and would avoid the risk of satellite litigation about the terms of an injunction.
144. The second route would be for the Court to “edit” the instrument itself and direct the Office of the Public Guardian to register the Court’s amendments. This would be analogous to the powers in section 23 of the Mental Capacity Act 2005 concerning LPAs and which are most commonly deployed when the attorney is, for example, directed not to sell P’s house.
145. The third route was the Official Solicitor’s preferred route and in the event the Court’s. The instrument would be left intact, but a series of injunctive directions would be made against DA. Mr Lewis relied on a case where similar circumstances, elder abuse by a son against his parents had led to this happening: DL v A Local Authority [2012] EWCA Civ 253. Theis J’s approach was approved by the Court of Appeal, although it was noted that there was no LPA in that case.
Arbuthnot J noted that
148. Mr Chisholm for the Official Solicitor, supported the third route (namely the making of injunctive orders) but on the basis that the injunctions could and should be made under section 16(2) of the Act to support best interests decisions relating to DA’s care, the Court having found that DA lacks capacity to make decisions concerning her care needs.
149. It seemed to me the third route respected CA’s wishes for DA to be her LPA, and having found that CA had capacity to make or revoke the LPA, I did not consider that the inherent jurisdiction could or should be used to revoke the LPA. The injunctive directions which were discussed by the parties and for the most part agreed would protect CA from further physical and emotional harm. These were a proportionate response to the risks CA faces.
She also found that :
150. The use of the inherent jurisdiction to impose the continuation of supervised contact between CA and DA/EA in circumstances where CA has capacity pursuant to the MCA 2005 decide on contact with others, was compatible with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention), namely the family’s rights to respect for private and family life. The interference with the Article 8 rights was justified to protect CA.
151. In the circumstances, the injunctions would allow DA to continue to be health and welfare attorney under the LPA whilst her use of it would be compatible with ensuring CA’s safety.
Comment
This was a very complex case, as can be seen by the range of tools that the court had to deploy to respond to the situation. Of particular, wider, interest was the dilemma posed by the fact that CA had capacity to revoke the health and welfare LPA (but was clearly not taking any steps to do so), but lacked capacity to make decisions in relation to her care. One issue that could perhaps have been teased out a little more in the relevant section of the judgment was whether the real concern was:
- Whether DA would use her powers as attorney in such a way as might harm her mother – in which case, directions under s.23(2) would have seemed the right course of action, because they would direct the attorney in the discharge of their decision-making.
- Whether DA would act towards her mother in such a way as to compromise her mother’s best interests, in which case directions under s.23(2) could not assist, because s.23(2) directions can only bite on the attorney acting as the donor’s substitute decision-maker.
