A Local Authority v E

When deciding where an incapacitated adult should live, the court must determine the person’s best interests by weighing all relevant circumstances. Family care is a normal starting point where the family has previously provided care, but it is not a presumption that family care will always be preferable. The adult’s own private-life rights, development, education, social interaction and need for appropriate support must be considered. The court may approve residential care where it provides materially greater opportunities for development and the proposed family arrangement cannot reliably meet the person’s needs. Continued family contact should ordinarily be preserved and, where possible, arrangements should remain capable of developing towards shared care.

The Council applied under the inherent jurisdiction concerning A, a young adult with severe learning disability who had previously been subject to care orders. The issues were whether A lacked capacity to decide her residence, education, community care and family contact, and what arrangements were in her best interests after she moved from a children’s facility to an adult residential unit.

The parents sought A’s return to their full-time care. The Council, Official Solicitor and most experts supported residence at the Unit, with substantial parental contact and the possibility of shared care. The central questions were A’s capacity and whether her welfare was best served by parental care, residential care, or a shared arrangement.

1. Capacity. Applying the test in Re MB (Medical Treatment) [1997] 2 FLR 426, the court held that A lacked capacity to decide her residence, educational and community care provision, and family contact. She could express preferences and make simple choices, but could not understand the consequences or weigh the relevant information. The court also recorded that the same conclusion followed under sections 2(1) and 3(1), read with section 3(4), of the Mental Capacity Act 2005.
2. Welfare assessment. The court adopted the balance-sheet approach described in Re A (Male Sterilisation) [2000] 1 FLR 549. The welfare assessment required all relevant factors to be weighed, with A’s welfare as the paramount consideration. The court also applied the guidance in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, including the normal assumption that a mentally incapacitated adult previously cared for within the family may be better off remaining there, while recognising that this is not determinative.
3. The court had to respect both the parents’ family-life rights and A’s own private-life rights under Article 8. A’s private life included the opportunity to develop her personality through relationships and social interaction, and the court acted as her surrogate decision-maker in determining her best interests, consistently with Re F (Adult: Court’s Jurisdiction) [2001] Fam 38.
4. Although shared care would ordinarily have been the preferred arrangement, it depended on parental co-operation and reliable management of transitions, routines, education and boundaries. The evidence showed that A was flourishing at the Unit, benefiting from peer interaction, college attendance and structured support, while the parents’ uncompromising position made shared care unworkable in the short term. The wholly parental model was therefore not in A’s best interests.
5. A was ordered to remain living at the Unit. The order provided machinery for unsupervised parental contact and preserved the possibility of progression towards shared care if co-operation and commitment developed.