London Borough of Newham v BS & Anor

The High Court may use its inherent jurisdiction to protect and promote the welfare of an adult who lacks capacity where there is a serious justiciable welfare issue. The jurisdiction has no threshold equivalent to Children Act 1989, section 31. The adult’s welfare is paramount. The court must adopt an evidence-based approach, exclude irrelevant material, consider all relevant factors and undertake a balance-sheet assessment of the advantages and disadvantages of the available care arrangements. Historical allegations need only be resolved where their determination is necessary to the welfare decision. The court may declare a local authority to be the appropriate person to make specified care decisions, provided the arrangements are in the adult’s best interests and contain adequate safeguards.

The local authority sought declarations under the High Court’s inherent jurisdiction concerning S, a 33-year-old woman with significant learning disability, atypical autism and epilepsy. S lacked capacity to decide where she should live, who should care for her, and the nature and extent of contact with her father. Interim declarations had authorised her removal from her father’s home and placement in specialist accommodation.

The father opposed the final relief and sought S’s return to his care. The court considered disputed allegations concerning an alleged assault, alcohol misuse and the adequacy of the competing care arrangements. The central issues were whether the inherent jurisdiction applied, whether historical factual findings were necessary, and which proposed arrangements best served S’s welfare.

1. Jurisdiction. The court had jurisdiction to determine the welfare of an adult lacking capacity where there was a serious justiciable issue requiring adjudication. Incapacity and the existence of that issue were sufficient. No threshold criteria equivalent to section 31 of the Children Act 1989 applied.
2. Approach to welfare. S’s welfare was paramount. The court adopted an evidence-based and pragmatic approach. The essential steps were to establish incapacity, identify the serious welfare issue, define the issue, and draw up a balance sheet of the relevant benefits, disadvantages, possible gains and possible losses. Historical allegations did not have to be resolved unless their resolution was necessary to decide what was in S’s best interests.
3. Application. The court rejected the alleged assault and excessive-drinking allegations as unproved, but held that this did not defeat the local authority’s claim. The future suitability, security and consistency of the proposed specialist placement, together with S’s need for supervision, social development and family contact, outweighed the advantages of continued care by her father. The professional evidence strongly supported the local authority’s plan.
4. Relief and safeguards. The court could make declaratory orders identifying the local authority as the appropriate person to take specified decisions on S’s behalf. The proposed arrangements included consultation, liberty to apply, independent advocacy and structured review of contact. These safeguards were adequate.
5. Order. Declarations and orders were made in accordance with the draft order, including S’s residence in accommodation arranged by the local authority and contact with her father under the agreed schedule.

Not an appeal. The judgment itself describes interim orders made by Johnson J and continued by Hughes J, but gives no appellate history.