Local Authority X v MM & Anor (No. 2)

Where a local authority controls a vulnerable adult’s residence and personal relationships, it must ensure that the arrangements do not disproportionately interfere with the adult’s rights under Article 8 of the European Convention on Human Rights.

If the authority wishes to control where and with whom the adult lives, it must take appropriate positive steps to facilitate the continuation of an intimate relationship where necessary to avoid a breach of Article 8. Contact arrangements must represent at least the minimum acceptable level and should be reviewed with a view to increasing frequency or duration, while having regard to the adult’s wishes and feelings.

This was the coda to the court’s earlier judgment concerning MM, an adult lacking capacity in several respects. The court had approved the local authority’s care plan in general but found that the proposed restrictions on MM’s residence and contact with KM created a risk of disproportionate interference with her Article 8 rights.

The local authority filed a revised care plan providing for unsupervised weekly contact between MM and KM, including contact at MM’s supported accommodation, subject to safeguards addressing violence, intimidation and abuse. The Official Solicitor and KM accepted the revised plan. The issue was whether the revised arrangements adequately addressed the court’s earlier concerns.

1. Revised care plan approved. The revised plan addressed the court’s concern that the local authority’s control over MM’s residence and contact with KM could otherwise breach Article 8. It provided for KM to visit MM at her supported accommodation during contact periods, subject to proportionate safeguards concerning aggressive, abusive or intoxicated behaviour.
2. Positive obligations arising from interference. The court reaffirmed that a local authority which imposes a regime preventing an adult from continuing an intimate relationship must either modify the regime so that Article 8 is not breached or, if it retains control over residence, take appropriate positive steps to facilitate the relationship. Controlling residence without undertaking the corresponding positive obligation would be disproportionate. The court could not endorse a care plan which involved a breach of Article 8, having regard to section 6 of the Human Rights Act 1998.
3. Minimum contact and review. Once-weekly unsupervised contact for at least four hours was the minimum acceptable arrangement. Contact was to be reviewed every four to six weeks, with a view to increasing its frequency or duration. MM’s wishes and feelings were important and her advocate should be able to attend review meetings. Additional direct contact could be directed by the local authority because MM lacked capacity to decide the issue, but the authority was required to have regard to her wishes and feelings. Telephone contact did not require limitation or supervision and could be arranged by MM and KM.
4. The order declared that MM lacked capacity in specified areas, including residence, contact, financial arrangements and marriage, but had capacity to consent to sexual relations. It ordered residence in accommodation provided or approved by the local authority, weekly unsupervised contact, telephone contact, liberty to apply and no order as to costs.

The judgment was a coda to the court’s earlier judgment in the same proceedings, Re MM, Local Authority X v MM and anor, [2007] EWHC 2003 (Fam). No appeal history is stated.