The London Borough of Wandsworth v M & Ors (Rev 2)

Procedural fairness remains essential even where the evidence overwhelmingly establishes the statutory threshold for intervention. Under the Mental Capacity Act 2005, capacity is decision-specific and time-specific. The impairment or disturbance relied upon must cause the inability to make the particular decision.

The interim jurisdiction under section 48 requires reason to believe that the person lacks capacity. It is a distinct interim test, not merely a lower version of the final test. A serious possibility or unclear situation is insufficient without a solid, well-reasoned assessment in which the person’s reasoning and voice have been properly engaged. Autism, developmental difficulty or an unwise decision does not, by itself, establish incapacity.

The inherent jurisdiction may protect a vulnerable adult whose free decision-making is compromised otherwise than by mental incapacity. Any injunction must be useful, enforceable, proportionate, minimally restrictive and kept under review.

The local authority brought care proceedings concerning three boys. Final care orders had previously been made by HHJ Tolson QC, but the Court of Appeal allowed M’s appeal because the proceedings had not been fair and disputed evidence had been treated as established.

The rehearing concerned whether the statutory threshold was met, the appropriate care arrangements for A and C, and the position of J, who had reached 18 and was therefore outside the relevant family-law jurisdiction. The local authority sought protective steps concerning J, including proceedings in the Court of Protection. The central issues were whether J lacked capacity to decide where he should live and, if not determined, whether the High Court’s inherent jurisdiction could protect him.

1. Threshold and care arrangements. The threshold under section 31(2) of the Children Act 1989 was established. The evidence showed neglect and emotional, educational and developmental harm, although the court emphasised the underlying developmental difficulties and M’s benevolent intentions. A and C’s wishes, welfare and progress in separate residential placements supported their remaining there.
2. Capacity. Capacity is specific to the particular decision and time, and must be causally linked to an impairment or disturbance in the functioning of the mind or brain. The assessment concerning J lacked forensic rigour. Its purpose had not been properly explained, its analysis of the relevant information was superficial, and its reasoning was vague.
3. Section 48. The interim gateway under section 48 of the Mental Capacity Act 2005 requires reason to believe that P lacks capacity. It is a different interim test, rather than simply a lesser test. A mere possibility, even a serious one, or an unclear situation is insufficient. The assessment must be solid and well reasoned, and must give P’s own reasoning the proper opportunity to operate. Autism must not be elided with incapacity.
4. Inherent jurisdiction. Although the section 48 test was not met, the inherent jurisdiction could protect J as a vulnerable adult while a proper assessment was undertaken. The jurisdiction extends to an adult whose ability to make a free choice or express genuine consent is compromised by constraint, coercion, undue influence or another vitiating factor, even without mental incapacity.
5. Relief. The court directed an immediate, MCA-compliant capacity assessment by a consultant psychiatrist. Pending reconsideration, it was in J’s best interests to remain in his residential unit. The injunction was confined to restraining J from living at M’s home, rather than compelling him to live in a specified place. It was to last only until capacity and jurisdiction were reconsidered, reflecting the requirements of usefulness, enforceability, proportionality, minimum interference and regular review.

The proceedings had previously resulted in final care orders made by HHJ Tolson QC. The Court of Appeal allowed M’s appeal on the basis that the first-instance process had been procedurally unfair and remitted the matter for rehearing. The present court then reheard the issues.