London Borough of Ealing v KS & Ors

The court’s protective jurisdiction over vulnerable adults must be exercised by reference to capacity, best interests, proportionality and Convention rights. Capacity to consent to sexual relations is issue-specific, rather than partner-specific, and depends on understanding the sexual nature and character of intercourse and its reasonably foreseeable consequences. It must not be confused with the wisdom of the decision or the person’s best interests. A person with capacity may make an unwise but lawful choice. Where capacity fluctuates, carers must identify and respond to changes in capacity. A residential placement may be authorised where a structured balance-sheet assessment establishes that it better protects the vulnerable adult than family care. Any deprivation of liberty requires a lawful and carefully reviewed framework.

The local authority brought Part 8 proceedings concerning SK, a vulnerable adult represented by the Official Solicitor. It sought declarations about her capacity to litigate, marry, decide residence and contact, consent to sexual relations, contraception and medical treatment. It also sought declarations concerning a marriage and SK’s biological relationship to the respondents, together with injunctions regulating contact and removal.

The principal disputes concerned whether SK should live with her mother or in supported residential accommodation, the appropriate contact arrangements, the legal test for capacity to consent to sexual relations, and the future management of possible deprivation of liberty and contraception.

1. Declarations and treatment. SK lacked capacity to litigate, marry, decide residence, consent to the proposed ovarian surgery and, in relation to contraception, the issue required adjournment. Her capacity to consent to sexual relations fluctuated. The court declared that the marriage in issue would not be recognised as valid in English law because of the form of its celebration.
2. Best interests. The court adopted a balance-sheet approach, weighing actual and possible benefits against burdens and risks. Detailed findings on every family allegation were unnecessary. Allegations had to be proved by the person making them on the balance of probabilities, and suspicion alone could not establish facts. The established conflict, volatility, poor understanding of SK’s needs and risk of exploitation outweighed the benefits of family care. Residence at WR was therefore in SK’s best interests.
3. Contact. Contact with the family was in SK’s best interests, but it required a cautious and managed relaxation of the existing supervised arrangements. The court rejected an immediate move to unsupervised or staying contact and directed that the arrangements be reviewed.
4. Sexual relations. Applying X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) and MM v Local Authority X [2007] EWHC 2003 (Fam), capacity was issue-specific and not partner-specific. The test concerned understanding of the sexual nature and character of intercourse and its reasonably foreseeable consequences. Risks of pregnancy, psychiatric deterioration, emotional harm or an unwise choice did not convert best-interests considerations into capacity requirements. The residual inherent jurisdiction could not be used paternalistically to prevent lawful sexual relations where SK had capacity.
5. Liberty and future management. Any proposed restriction of liberty at WR had to be assessed against Article 5 and Article 8, with prior judicial authorisation and regular review where detention was contemplated. No personal welfare deputy was appointed. The case was to return for review of contact, contraception and any deprivation-of-liberty arrangements.

First-instance proceedings under Part 8 of the Civil Procedure Rules. The judgment records an earlier interlocutory decision by Sumner J, but no appellate decision.