J (by his Litigation Friend, the Official Solicitor) v Luton Borough Council & Ors

Under the Mental Capacity Act 2005, a best-interests decision is a fact-sensitive evaluative exercise. The court must consider all relevant circumstances, including the person’s wishes and feelings, beliefs and values, the views of those concerned for their welfare, and the benefits and risks of the proposed course. Public guidance may be highly influential, but it is not automatically decisive. In a travel case, the court may balance heritage and family relationships against the nature, likelihood and consequences of serious harm. An appellate court should not interfere merely because another outcome is arguable. Required factors need not be addressed individually where the hearing record and reasons show that they were considered.

J, an adult with severe learning difficulties, lacked capacity to decide whether to travel to Afghanistan with his family. The local authority applied for protective orders after concerns about forced marriage and travel-related risks.

On 26 July 2023, Mrs Justice Roberts made an interim order in the Court of Protection declaring that travel was not in J’s best interests. She also continued a Family Division order preventing his removal from England and Wales. J appealed, alleging an inadequate Mental Capacity Act 2005 best-interests assessment and discrimination under article 14. The discrimination ground was ultimately accepted to add no separate issue. The central question was whether the judge had given proper consideration to J’s wishes, values, family relationships, proposed safeguards and the risks identified in the FCDO travel advice.

Appeal dismissed. Lord Justice Peter Jackson gave the judgment, with Lord Justice Dingemans and Lord Justice Lewis agreeing.

1. The task under section 4 of the Mental Capacity Act 2005 is a multi-factorial best-interests evaluation. The decision-maker must consider all relevant circumstances, including the person’s perspective, wishes and feelings, beliefs and values, other factors they would be likely to consider, and the views of those caring for or interested in their welfare.
2. A judgment need not recite every statutory factor separately. The transcript and reasons showed that the judge was aware of J’s perspective, the importance of the proposed trip and the family’s perspective. Her failure to mention each matter individually did not establish an error of approach.
3. The FCDO advice was not treated as legally binding or decisive in a doctrinaire manner. It brought a series of undisputed risks into the assessment. The judge carried out a conventional balancing exercise, weighing the benefits of heritage, family relationships and travel against the nature, likelihood and consequences of serious harm, including detention, non-return, lack of consular assistance and loss of essential support. Her conclusion was soundly based and comfortably open on the evidence.
4. In cases of this nature, the court should give the fullest consideration to heritage and family relationships while recognising that excessive risk aversion may itself cause welfare disadvantage. The court noted that information about the reasons for the family’s asylum and the fact that J would travel on an expired Afghan passport were potentially relevant matters for any future application. This was additional guidance rather than a basis for allowing the appeal. The article 14 ground added no separate issue to the best-interests challenge.

1. Court of Appeal (Civil Division) — On 11 January 2024, the appeal was dismissed. The court held that the Court of Protection judge had properly undertaken the required best-interests assessment.
2. Court of Protection and Family Division — On 26 July 2023, Mrs Justice Roberts refused permission for J to travel to Afghanistan in his best interests and continued an order preventing his removal from England and Wales.