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When Best Interests Collide: A Protected Party, Protected Party’s Children and the Court of Protection

Sarah Phillimore, barrister of St John's Chambers, Bristol, and Daniela Nickols, associate solicitor with Mowbray Woodwards, analyse the recent case of X,Y, and Z [2014] EWHC 87 (COP) in which the Court of Protection considered the interplay between the best interests of a protected party and that party's children.

Sarah Phillimore, barristerDaniela Nickols, solicitor 













Sarah Phillimore, barrister, St John's Chambers and Daniela Nickols, associate solicitor, Mowbray Woodwards

Introduction
On 20th and 29th November 2013, Mr. Justice Baker, sitting as a judge in the Family Division and in the Court of Protection, made final orders by consent in two conjoined proceedings (1) under Part IV of the Children Act 1989 care orders in respect of three children and (2) under the Mental Capacity Act 2005 authorising the payment of sums to facilitate the care of the children from funds held in trust for their mother who is a person lacking capacity within the meaning of the 2005 Act.

In Re X,Y and Z [2014] EWHC 87 (COP) the court was concerned with the interplay between the 'best interests' of both a protected party and the protected party's children.

The case involved a mother of three children, now aged 15, 13 and 12 years. The mother was born in 1977 and was 36 at the time of judgment.

Brief history of the matter
The children's parents married in 1998 but divorced following the father's repeated and serious physical attacks on the mother which led to his imprisonment in July 2003. Since the parents separated, the father has had only limited contact with the children and played no active role in these proceedings.

Tragically, before the father was imprisoned, in 2002 the mother was a passenger in a car driven by her sister which was involved in a very serious road traffic accident. Her sister was killed and the mother suffered very serious injuries, leading to her becoming confined to a wheelchair, as well as sustaining a severe head injury which has had a negative impact on her personality and behaviour ever since.

The children were aged 4, 2 and 9 months at the time of the accident and were then cared for primarily by their maternal grandmother and professional carers. The grandmother died in 2008 and from that time a succession of professional nannies were employed.

S was the children's current nanny at the time of the proceedings; she worked from Sunday evening until Friday evening, living at the family home, with two other nannies working at the weekends.  All agreed that the children have become closely attached to S and she has done an excellent job in looking after them. 

In 2009 an order was made in the Court of Protection, appointing a deputy to make decisions on the mother's behalf in relation to her property, affairs and personal welfare. A claim for damages arising out of the road traffic accident was settled in 2012. The mother received a lump sum of £4.25 million, and annual periodical payments until aged 60 of £175,000 and thereafter £215,000 (in line with inflation).  The lump sum included £400,000 capitalised for future payment of nannies but was not 'ring-fenced' for this exclusive use.
Unfortunately for the mother, her own care costs have been greater than was anticipated at the time of settlement which has meant that the deputy has had to draw upon the capital lump sum which it is estimated will become exhausted by the time the mother is in her forties. She has a normal life expectancy.

Children's Services became involved with the family when it became clear that the children were suffering emotional harm due to the mother's behaviour. Reluctantly, after attempting to manage the difficulties caused by the mother's behaviour and its impact on the children, they concluded that the emotional harm suffered by the children was becoming so serious that they needed to be removed from the mother's home.

Therefore in February 2013 the local authority initiated care proceedings. The Official Solicitor represented the mother.

As there were no family members who could care for the children, all involved were in agreement that the best outcome would be for the children to live with S in a separate household and have contact with their mother.

A range of legal orders were considered. It was concluded that the best option would be for the children to be placed with S as a foster carer under a care order. This would give the children a degree of security if arrangements with S broke down and would enable them to benefit from the leaving care provisions under section 23A-E of the Children Act 1989.

The local authority agreed to support S in obtaining a housing association property and agreed to pay a short period of private rental income in the interim. She would also be paid a foster carer's allowance to meet the children's needs and any reasonable expenses she incurred in meeting those needs.

The judge was satisfied that a care order in the circumstances of this case was manifestly in the best interests of the children and their placement with S would minimize the risk of future harm.

The Problem: How to secure the continued involvement of S to care for the children and was this in the mother's best interests?
S was concerned about her own financial future were she to give up her paid employment as nanny to become the children's full time foster carer. She would not be permitted to use the fostering allowances to pay into her pension fund or meet any costs relating to maintaining her own flat and therefore would face an uncertain financial future on her retirement.

S therefore stated that she needed to receive funds to compensate her for giving up her paid employment. S estimated she was worth about £26,000 pa on the open market as an employed nanny. However, she would be happy to accept £20,000 pa net, which would enable her to meet both her current personal, and future retirement needs.

It was argued on behalf of the local authority and S that it was manifestly in the mother's best interests that S should be paid to continue to care for the children for the following reasons:

  1. The on-going need to make financial provision to care for the children had been one of the purposes behind the mother's fund.
  2. The effect of the care order was to permit the fund to make large savings in terms of child care cost – once the children moved out of the mother's home, their day to day needs would be met by the local authority fostering allowances, there would be no need for weekend nanny payments nor the significant sums expended on psychological intervention for the children, to help them cope with the difficult atmosphere at home. 
  3. Further, it was the natural and reasonable desire of any parent to know their children were well cared for and the mother, when she could express a view, was saying that she wished S would care for the children. There was a risk the mother's emotional health would deteriorate if she became concerned about the children's well-being.

The deputy did not agree on the mother's behalf and was concerned that the payments might not be in the mother's best interests as it was clear that on the mother's current expenditure her capital sum would be exhausted before the mother was 40 years old. The deputy was concerned to note that there was no evidence that the mother had expressed the wish that the children remain with S in the context of having it explained to her that any financial contribution made by her to sustain this, would exacerbate her income shortfall. Further, it was mere speculation to suggest that a change in the children's carer would impinge upon the mother's mental health.

The court gave the parties permission to seek the expert opinion of an employment lawyer to consider the possibility of the mother continuing to employ the nanny under a contract of employment. This expert opinion was that such a course would meet insuperable legal difficulties, not least that it would not be clear how an employment contract could operate alongside S's statutory duties as a foster carer. Further, there was a concern that any such contract could be voidable for duress as the mother would in effect be told that the children would not end up with the most suitable carer unless the mother paid for it.

Thus all agreed that if payments were to be made by the mother, they could not be made contractually to S but would be a matter of ex gratia discretionary allowance which the deputy could be authorized by the court to make from time to time.

The court recognized that the deputy was not acting adversarially by raising objections to this course of action but rather was compelled to raise these issues in her capacity as a professional office holder with duties under the 2005 Mental Capacity Act.

It therefore fell to the court to make the decision concerning the use of the mother's funds in her best interests. At the court's suggestion, the local authority thus filed an application in the Court of Protection seeking a declaration that the continued employment of the nanny was appropriate expenditure from the funds held on the mother's behalf and administered by her deputy. The application was listed alongside the care proceedings.

Examination of what is in the mother's best interests
In July 2013 the judge gave directions to determine the following questions: (1) whether the mother lacked capacity and (2) if so, whether it was in the mother's best interests for the deputy to continue to employ S under a contract of employment in the circumstances as proposed in the concurrent care proceedings, and if so at what level of remuneration, or (3) if not, whether it was in the mother's best interests for the deputy to make a non-contractual contribution to the arrangements proposed by the local authority for the children to be cared for by S.

The possibility of entering into a contract of employment, as discussed above, was dismissed by all as unfeasible.

With regard to the first question, a psychologist assessed the mother in September 2013 and concluded that both the diagnostic and functional tests for lack of capacity were satisfied, pursuant to ss.2 and 3 of the Mental Capacity Act 2005.  It was therefore agreed that the mother was unlikely ever to be able to make fully informed decisions about whether or not continuing to pay S to look after the children would be in her own best interests.

Thus question 3 remained the key question.  What course of action would be in the mother's 'best interests'?

The law governing 'best interests' decisions pursuant to the MCA 2005
The court was satisfied it had the power pursuant to section 18 of the MCA 2005 to make an order authorizing payments to S from the fund. The key question remained whether or not to do so would be in the mother's best interests.

Section 1(5) of the MCA 2005 provides that to act or make decisions for the mother as a protected person can only be done, if to do so is in her best interests.

Section 4 sets out what the decision maker must consider in order to determine whether this requirement is met.  Section 4(2) simply directs the decision maker to 'all the relevant circumstances'.

Munby J in Re M: ITW v Z and Various Charities [2009] EWCH 2525 (Fam) at paragraph 35 considered what should be included in 'relevant circumstances' and concluded that this should encompass, inter alia, the degree of the protected person's incapacity; the strength and consistency of any views expressed; the possible impact of knowing that these views are not being given effect; the extent to which the protected person's wishes and feelings are or are not rational, sensible and 'pragmatically capable of sensible implementation'; and 'crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests'.

Section 4(6) requires the decision maker to consider any previously expressed wishes and feelings, in particular anything written down when the protected person had capacity; the protected person's 'beliefs and values' that would be likely to influence his decision if he had capacity and 'the other factors that he would be likely to consider if he were able to do so'.

The judge considered the statute and case law and made the following observations:

  1. There is no hierarchy between the various factors; the weight to be attached to each will vary from case to case.
  2. However, there may be factors of 'magnetic importance' that determine the outcome – see Re M: ITW v Z op cit. 
  3. Given that the powers under section 18 include the power to makes gifts and settlements for the benefit of others, 'best interests' cannot be confined to 'self interest' and the court may conclude that the protected person should act altruistically. See Re G (TJ) [2013] EWHC 3005 at paragraph 35.
  4. The court must consider the mother's beliefs and values that will be likely to influence her decision if she had capacity, such as her wish that the children remained cared for by S. 
  5. The 'best interests test' under the MCA 2005 is very different from the previous test of 'substituted judgments'; thus the focus has shifted from what the protected party 'might be expected' to have done if they had capacity, to what is considered to be in that person's best interests.
  6. However, given the importance attached to the mother's wishes and feelings by section 4(6) of MCA 2005, the concept of 'substituted judgment' retains relevance and accordingly, the balance sheet of factors which a protected person would draw up if he or she had capacity is a relevant factor for the court's decision.

The court's decision and conclusion
The judge concluded 'without hesitation' that the proposed payments to S from the mother's fund were in the mother's best interests. He noted particularly at paragraph 45 of his judgment that:

'Where a parent loses mental capacity at a time when she is still responsible for her children, those responsibilities are part of her 'interests' which have to be addressed by those making decisions on her behalf.'

He noted that the mother's wishes and feelings were of great importance and although she may not appreciate the fact that her own care needs now cost more than her income, the judge concluded that she would nevertheless prefer to pay S to safeguard the children's future. In any event, the new arrangements would significantly reduce the sums paid out of the fund to meet the children's needs and thus the deputy would now have greater flexibility to adjust arrangements to enable the mother to make savings.

It would appear that this is the first case to be decided under the MCA 2005 or its predecessor, when the court was dealing with the 'best interests' of both a protected party and the protected party's children.

It is hoped therefore that this will prove a useful and instructive authority for any decision maker faced with any future dilemma about what is in the 'best interests' of a protected person with on-going responsibilities to provide care for minor children.  Based on this authority it would appear that a protected party's 'interests' would include the care requirements of their children.

There can be no criticism of a deputy who seeks the court's approval for a decision that may have adverse financial consequences for a protected person, but it is sad to note that the cost of these legal proceedings made a considerable dent in the mother's fund. Hopefully such costs can be avoided in any future cases now that Baker J has thoroughly considered and assessed the impact of continuing child care responsibilities upon the 'best interests' of a protected party.

5/2/14