A London Borough v BB & Ors

In best-interests proceedings concerning an incapacitated adult, the court must assess all realistic care options, including family placement, rather than considering only the option advanced by the public authority. Family life is a significant starting point, and the State bears the practical and evidential burden of showing that welfare cannot be sustained within the family, with appropriate support.

A deprivation of liberty depends on the objective circumstances and the person’s subjective situation. It may exist where accommodation, supervision, control and restrictions on leaving or contact are imputable to the State, even where the person is content and the arrangements are beneficial. Any interference must be necessary and proportionate and requires judicial authorisation.

The local authority and the Official Solicitor sought declarations and decisions concerning BB, an incapacitated adult with schizo-affective disorder, profound pre-lingual deafness and a learning disability. The proceedings concerned her capacity, marriage, residence, contact with her family and medical and care arrangements.

BB had been moved from her family home to a specialist residential placement in Birmingham. The court considered whether her residence there amounted to a deprivation of liberty, whether it was in her best interests, and whether a return home or a placement in London should be investigated. The central issue was whether the available evidence permitted a lawful comparison of the benefits and detriments of all realistic options.

1. Capacity and marriage. It was common ground that BB lacked capacity to conduct the litigation and to make the relevant decisions, including the decision to marry. The parties agreed that her marriage should be annulled under Matrimonial Causes Act 1973, section 12(c). The court granted leave for an annulment application and made procedural directions under the Family Procedure Rules 2010.
2. Alleged assault. The allegation that BB had been assaulted by her mother was not proved on the balance of probabilities. The welfare issues remained significant and required determination independently of that allegation.
3. Deprivation of liberty. Applying P and Q v Surrey CC & Ors [2011] EWCA Civ 190 and the relevant safeguards, the objective and subjective elements were satisfied. BB could not consent to the placement, had expressed a wish to leave, was continuously supervised and accompanied, was subject to substantial control over medication and activities, and her placement was imposed by the State. The restrictions therefore amounted to a deprivation of liberty requiring court authorisation.
4. Best interests. The court adopted a balance-sheet approach. It was insufficient for the local authority to establish only a prima facie case for the Birmingham placement. The authority had to provide evidence permitting comparison with a family placement, a London placement and continued residence in Birmingham. The separation from BB’s family engaged her rights under article 8 ECHR.
5. The authorities establish no absolute presumption that an incapacitated adult must live with family. Nevertheless, family placement should receive priority consideration, and the State bears the practical and evidential burden of showing that welfare cannot be sustained within the family, with or without outside support. The local authority had not yet discharged that burden.
6. On the evidence presently available, BB’s best interests were safeguarded by remaining at Polestar for the time being because its intensive, expert and integrated support could not yet be replicated at home or in London. That was an interim conclusion. The placement and deprivation of liberty were to be reviewed within six months after further assessment of all options.
7. Contact was to be improved and supported, but intense supervision and multiple interpreters were not automatically required. The local authority was given discretion, in consultation with the Official Solicitor, subject to the court’s expectation of increased visits and staying contact if the family co-operated.

First-instance proceedings in the High Court (Family Division) and Court of Protection. The judgment made interim determinations and directed review after further assessment.