In Parr v Cheshire East Council & Anor [2026] EWCOP 1 (T3), and whilst expressly applying, rather than seeking to distinguish Lawson and Mottram, Poole J took a rather different approach to the question of principle underpinning the issue of when a personal welfare deputy should be appointed to that taken by Hayden J in that earlier case. In Lawson and Mottram, Hayden J expressed the view that “[t]he structure of the Act and, in particular, the factors which fall to be considered pursuant to Section 4 may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the Court to appoint a [personal welfare deputy].” In his analysis of the position, Hayden J took what might be considered to be a distinctly purist approach, placing considerable weight upon the fact that Parliament had enacted a framework in s.5 MCA 2005 which is expressly intended not to confer decision-making authority on any one individual.
Poole J, by contrast, took what might be thought to be a rather more pragmatic approach, in the context of a case concerning an 18 year old, Ruby Parr, whose mother had experienced considerable challenges before her 18th birthday securing effective decision-making in relation to her. At the critical passage of his judgment he observed that
37. Hayden J made very clear in Lawson, Mottram and Hopton(above) that there is no presumption against appointment of a PWD. A PWD is not needed merely because a child with complex needs has become an adult. It is unlikely to be appropriate if there is a single significant decision to be made. In most cases the appointment will not be required, but in some it will. Here, there is likely to be a series of decisions to be made about Ruby’s health and welfare. When Ruby was a child and Ms Parr had parental responsibility, service providers have sometimes struggled to make swift or appropriate decisions for Ruby’s health and welfare and Ms Parr has been at hand to prompt, cajole or insist on Ruby’s behalf and in her best interests. In the first few months of Ruby’s adulthood Ms Parr has experienced further incidents of that kind but without the ability to point to her parental responsibility to give weight to her views. Difficult decisions lie ahead and whilst there may be agreement amongst all involved, there might well not be. It is also in the experience of this Court that public bodies and others responsible for the care of an adult without capacity are anxious about having the appropriate consent for certain interventions or about the propriety of sharing information. It would be invidious to insist upon repeated applications to court to resolve these matters when the Court can be satisfied, as I am, that Ms Parr is uniquely placed to assess and act on Ruby’s best interests in relation to personal welfare decisions as her PWD. On the facts of this case it would not be a restriction of Ruby’s autonomy to make the appointment.
In a passage which may well resonate with many, Poole J separately, noted that:
23. I cannot ascertain Ruby’s wishes and feelings about the application but I am sure she unconditionally trusts her mother. The views of her close family members and those who care for her professionally (at least those about whose views I have evidence) unanimously support the application and view the proposed appointment as being in Ruby’s best interests. This is not a case where there is any conflict of views within the family or those concerned with Ruby’s welfare.
24. Ruby needs decisions to be made about her personal welfare and health frequently and rapidly. She has complex needs and therefore would benefit from someone speaking up for her who understands those needs and is attuned to Ruby.
25. The person who is most in tune with Ruby’s wishes and feelings is her mother who is also the person most committed to ensuring that Ruby’s best interests are met.
Poole J therefore made the appointment, and also granted an application by the media to vary the transparency order governing the proceedings to enable the naming of Ruby and her mother, before concluding that:
46. It was a delight to have Ruby in my courtroom and inspiring to learn of her life and the devotion to her of her family, in particular of Ms Parr. Her energy and commitment to fight Ruby’s corner, time and time again, is truly impressive. She has sacrificed a great deal in her drive to do what is best for her daughter. She has also helped many others through Ruby’s Fund. Evidence put before me included glowing tributes from different individuals within the healthcare, social care, and charitable sectors. Ruby is fortunate to have been born into this family and to have so much love, care, and support given to her. I wish her and the family the best for the future.
Conscious, I suspect, that his judgment might well be alighted upon with considerable excitement by the parents of those with life-long cognitive disabilities to seek (understandably) to maintain a form of parental responsibility post-18, Poole J made clear at paragraph 40 that his:
judgment is not an inducement to others to make applications for appointment as a PWD in cases where the appointment would not be appropriate.
Comment
The battles fought by Ms Parr on her daughter’s behalf when she was a child are, sadly, not uncommon (see, in this regard, amongst many other reports, the Law Commission’s report on Disabled Children’s Social Care). Nor were the problems encountered when Ruby turned 18 (see, in this regard, the National Mental Capacity Forum’s work on approaching the ‘cliff-edge’ of 18).
What is also not uncommon is, as recorded by Poole J, that “public bodies and others responsible for the care of an adult without capacity are anxious about having the appropriate consent for certain interventions or about the propriety of sharing information.” What Poole J could perhaps usefully have made clear is that they are simply wrong to have this anxiety. Within limits (see here), the MCA provides the workaround for a person’s inability to consent to relevant actions in the health and social care context in the form of s.5 (which, unlike Hayden J, Poole J did not expressly address); other legislation may well also be relevant in the context of information sharing.
This concern about consent in the context of a person lacking capacity to give it remains prevalent – leading, often, to weird requests for ‘next of kin’ to sign documents – and is enough to make me tear out what little remains of my hair. It would also be, I suggest, a very problematic basis upon which to justify appointment of a health and welfare deputy.
In the instant case, however, Poole J did not found himself solely upon this, but upon the well-established risk that decision-making was not and would not not be carried out effectively and in Ruby’s best interests without her mother having the role of deputy.
In this regard, I note that there might, on the face of it, be thought to be some similarities between Ms Parr’s situation and that considered by Keehan J in Re CB, in which CB’s sister sought to be appointed as health and welfare deputy so as to ensure that:
that she has a label, so that she has status, and so that she will be listened to and consulted by professionals in a way which she asserts she has not been listened to or taken notice of, for very, very many years.
It is unclear whether Poole J had this case brought to his attention, but given the limited body of case-law in this area, it would perhaps have been helpful if he could have explained how the two situations differed: most likely on the basis that P’s sister in that case was frank that she was not seeking to make decisions on her behalf in most situations, in contrast to the likely role of Ms Parr.
A final, unrelated, note. Reading this judgment in the middle of marking essays from my Mental Heath and Capacity Law class on the Medical Law / Mental Health, Ethics and Law Masters programmes at King’s College London, and reading answers to the question as to whether the word ‘autonomy’ should not be used in best interests decision-making because it is a meaningless concept, my eye alighted on this observation from Poole J that:
Appointment of a deputy would not take away autonomy from Ruby because she cannot exercise autonomy in relation to anything except the most basic activities and needs.
As I might say to my students: discuss.
