K v LBX & Ors

When deciding what is in the best interests of a person who lacks capacity, the court must apply the principles and checklist in the Mental Capacity Act 2005 and consider all relevant circumstances. Existing family life is a relevant circumstance and may deserve very great weight, but Article 8 does not impose a prescribed starting point, legal presumption or practical and evidential burden in favour of continued family placement. Any interference with family life must be lawful, necessary and proportionate. Private life includes personal development, autonomy and relationships, and may support supported or independent living. Family and private life may conflict. The assessment is therefore fact-sensitive and must not be mechanistic.

K, the father of L, appealed against a decision of Theis J in the Court of Protection authorising a trial move for L, an adult lacking capacity, from the family home to supported accommodation. L had lived with K and his brother and received a high standard of care. Theis J’s decision is reported at [2011] EWHC 2419 (Fam).

K did not challenge the order itself, but argued that Article 8 required the court to begin with a priority or presumption in favour of maintaining existing family life. The central issue was whether family life was such a prescribed starting point or merely one of the relevant circumstances under section 4 of the Mental Capacity Act 2005.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. The challenge concerned the judge’s reasoning rather than the conclusion that a trial placement was in L’s best interests.
2. Statutory framework. The Mental Capacity Act 2005 provides the governing framework. The decision-maker must determine best interests under sections 1 and 4, consider all relevant circumstances, and apply the statutory checklist. The Act does not require a prescribed starting point, presumption or practical and evidential burden in favour of continued family placement.
3. Article 8. Article 8 rights must be considered. Where the best-interests decision interferes with family life, the interference must be in accordance with law and justified as necessary and proportionate. This does not require Article 8 to be converted into a separate legal starting point for the section 4 assessment. Family life and private life may point in different directions. A move to supported accommodation, particularly one close to the family home and permitting continuing contact, is not necessarily a termination or significant interference with family life.
4. Fact-sensitive assessment. The observations in Re S did not establish a formal or rigid starting point under the Act. The court also declined to import approaches developed under the inherent jurisdiction or Children Act proceedings into the statutory scheme. Existing family life may require very great weight where it is long-standing and of high quality, but its weight depends on the evidence. Private life includes personal development, autonomy and the establishment of relationships, and may support a move towards independent living.
5. Application. Theis J had considered L’s family life, the quality of care and emotional attachments, his developing autonomy and ability to express wishes, the timing of independent living, and the proximity and support offered by the proposed placement. She correctly concluded that any interference with family life was justified and proportionate. Her approach was sound and the conclusion was plainly open to her.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 79, the court unanimously dismissed the appeal.
2. Court of Protection: Theis J authorised a trial placement for L after determining that it was in his best interests. The decision is reported at [2011] EWHC 2419 (Fam).