RB (Adult) , Re

Where an adult welfare case becomes academic because the protected person dies, the court may still determine issues of historical importance, but should limit the inquiry to matters that remain justiciable or materially affect the parties’ positions. An allegation of abuse may be properly raised where the available material justifies ventilating concerns, even though the evidence may later be insufficient to prove it. If an allegation is not pursued and cannot be substantiated, the court proceeds on the footing that it was not proved. Best-interests decisions concerning residence and care must address the realistic prospect that the proposed carer will cooperate with professional carers and health practitioners. The court must also respect the allocation of issues between the Family Division, the Court of Protection and specialist tribunals.

These proceedings concerned an adult with multiple sclerosis and dementia who had lived in residential care after concerns arose about her care, her partner’s conduct and the viability of care at home. The local authority sought continued residence in a care home; her partner sought her return home and challenged numerous historical allegations, evidential matters and professional assessments.

The final welfare hearing began in December 2008, but the protected person died before the evidence was complete. The court therefore considered which issues should still be determined, including the alleged sexual abuse, medication, alleged misconduct by professionals, the viability of home care, a Land Registry charge and costs.

1. Continuation after death. The protected person’s death fundamentally altered the human and forensic realities. The court nevertheless retained a limited purpose in determining matters of historical importance and in addressing allegations made against professionals, but the reasons for exploring peripheral issues in the person’s continuing welfare no longer applied.
2. Sexual-abuse allegation. The local authority had raised concerns about possible sexual abuse at the outset. It was justified in ventilating those concerns on the material then available and was justified in commencing the proceedings. It later accepted that the allegation could not be substantiated and had ceased to rely on it. Had it been pursued, it would have failed for want of proof, and the court would have proceeded on the footing that no abuse had been established, applying In re B (Children) (Care Proceedings: Standard of Prof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11.
3. Evidence and professional conduct. The court accepted Mr Sohewon’s oral evidence and rejected the purported statement attributed to him. Dr Jefferys’ evidence was measured, independent and compelling. Dr Kahtan’s criticisms were unsupported and his evidence could not be relied upon. The allegations against the local authority, the Official Solicitor, their staff and counsel were otherwise groundless, although the local authority’s handling of the supposed apology was properly criticised as prevaricatory and obfuscatory.
4. Best interests. Had the issue remained live, RB’s best interests required continued residential care. The decisive consideration was the substantial history of MF’s non-cooperation with care agencies and professionals, together with the absence of any evidence that his attitude would change. The court had regard to the Human Rights Act 1998 and Article 8, applying the approach in Re S (Adult Patient: Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, and the related authorities cited.
5. Jurisdiction and costs. Financial-abuse allegations and the validity of the Land Registry charge were matters for the Court of Protection and the Adjudicator to HM Land Registry respectively. The Family Division expressed no view on their merits. Costs did not automatically follow the event, applying Re HM, PM v KH (No 5) [2010] EWHC 2107 (Fam); any application for costs was to take account of the findings in the judgment.

First-instance proceedings in the High Court (Family Division). The final welfare hearing was interrupted by RB’s death, after which the court determined the residual issues identified by the parties.