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G v E and others [2010] EWCA 548 Civ

Renewed application for permission to appeal against placement order. Application granted.

The case concerned E, a young man of 19 with severe learning disability who suffers from a rare and very complex genetic condition. The background to the case can be found here.

Pending a final hearing, Baker J had to determine whether E should remain at Z Road or return to live with F, with whom he had lived for ten years. Baker J concluded that E should remain at Z Road pending the final hearing. 

G, the sister of E, appealed against that order on the following grounds: i) the judge failed to apply Winterwerp v The Netherlands (1979-80) 2HRR 387 and Re PS [2007] EWCA 623; ii) the judge fell into legal error and that matter was open for G  to take on appeal; iii) procedures were not dealt with speedily, as required by Articles 6 and 8 of the European Convention on Human Rights; iv) any placement at Z Road was illegal, there being "non-compliance involving the commission of a criminal offence in any placement at that location" because of non-compliance with the relevant regulatory regime; v) there was a breach of G's Article 8 rights.

Arden LJ, refusing the original application for permission to appeal, had indicated that even if the argument based upon Winterwerp was correct, nonetheless there was, in her opinion, based upon what Baker J had said his judgment, medical evidence satisfying the Winterwerp conditions.  In the light of fresh evidence submitted by G, the Court gave permission on ground i) under Court of Protection Rules 2007 r173(1)(a) (the appeal would have a real prospect of success); and on grounds ii), iv) and v) under r173(1)(b) (there is a compelling reason why the appeal should be heard). Ground iii) was refused.


Case No: C3/2010/0814
Neutral Citation Number: [2010] EWCA Civ 548

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 4th May 2010

(Lord Neuberger of Abbotsbury)
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G (Appellant)

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E & ORS (Respondent)

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(DAR Transcript of
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Ms Kerry Bretherton (instructed by Messrs Linder Myers) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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(As Approved)
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Lord Justice Munby:
1. This is a renewed application for permission to appeal the application, having previously been dismissed on the papers by Arden LJ on 21 April 2010, against the judgment and order given and made on 26 March by Baker J, sitting in the Court of Protection (see G v E & Others [2010] EWHC 621 Fam). 

2. The judgment is in the public domain and readily accessible on BAILI, so I can be brief. 

3. The case concerns E, a young man of 19 with severe learning disability who suffers from a rare and very complex genetic condition.  It is common ground that he lacks capacity.  He had been living for over ten years with F, initially the foster carer and subsequently on (inaudible) placement, until he was removed by the local authority in circumstances in which Baker J was extremely critical and which he found breached E's Article & rights.

4. The local authority then placed E first at the V Unit, then at Z Road, without any prior judicial sanction, and the circumstances which Baker J found in each case involved an unlawful deprivation by the local authority for E's liberty in breach of his Article 5 rights.  The proceedings were begun on 13 November 2009 in the Court of Protection by E's sister, G.  The matter came before Ryder J on 8 December 2009.  The order which he made on that occasion declared in the interim that, pending the hearing of an interim issue for which he gave directions, it was in E's best interest to continue to reside at Z Road, that declaration being made pursuant to recycle that the court had heard no argument, made no findings on the issue of deprivation of liberty and best interests and made the order as a result of the provisional agreement of the parties. 

5. The interim hearing directed by Ryder J came on before Baker J.  Baker J directed a review hearing on 6 May 2010 and a final hearing on 19 July 2010 with an estimated length of hearing ten days. 

6. So far as concerns the matter now explored in the Court of Appeal the major issue for Baker J was whether, pending final hearing, he should remain at Z Road or return to live with F.  That issue was described by the official solicitor and the judge as exceptionally difficult and finely balanced.  In the event Baker J has concluded, differing on this point and both the official solicitor and the independent social worker, that E should remain at Z Road pending the final hearing. 

7. There is no challenge to Baker J's decision insofar as it involved the exercise of discretion.  What is said by Ms Kerry Bretherton, appearing before us as before the judge on behalf of G, is that Baker J fell into legal error.  A number of grounds of appeal are identified by Ms Bretherton.  The first, which is set out in paragraphs 3 to 5 of the grounds, arises in this way.  In paragraph 97 of his judgment Baker J posed the question "whether the law stipulates that the court may not entertain an application for an order under Section 16 of the Mental Capacity Act that had the effect of depriving a person of his liberty unless satisfied that his condition warrants compulsory confinement".  The judge answered that with the question he had posed in the negative; thereby, submits Ms Bretherton, falling into legal error.  Her complaint is encapsulated in the propositions that the learned judge failed to apply the Strasbourg jurisprudence in Winterwerp v The Netherlands (1979-80) 2HRR 387 and failed to have followed the approach, which as it happens I have adopted, in Re PS [2007] EWCA 623. 

8. Arden LJ, refusing permission, indicated that even if the argument based upon Winterwerp was correct, nonetheless there was, in her opinion, based upon what Baker J said in paragraph 48 of his judgment, medical evidence satisfying the Winterwerp conditions.  Materials which have been put before us in the grounds for renewal prepared by Ms Bretherton suggest that that may not in fact have been the case.  In the circumstances, as indeed we earlier indicated at the outset we were provisionally minded to do, I would give permission to appeal on this ground not merely because, as it seems to me, the factual premises upon which Arden LJ made her decision made a lot of things sustainable but also that, in any event, it seems to me to raise an important matter of principle in relation to which it is desirable that this court should give definitive guidance.  I would therefore, in relation to this ground of appeal, give permission in accordance with Rule 173(1)(a) in the Court of Protection Rules 2007.

9. The second ground of appeal, set out in paragraphs 6 and 7 of the grounds of appeal, relates to the order made by Ryder J to which I have already made reference.  It is submitted by Ms Bretherton that Ryder J fell into legal error and that the matter, bearing in mind the circumstances in which the case came before Ryder J, is one which is open to her now to take in this court.  I confess to some scepticism as to whether that ground of appeal is arguable.  However, it seems to me that it would be desirable in the circumstances that this court should have the opportunity of considering the matter and therefore, for my part, I give permission in relation to that in accordance with Rule 173(1)(b). 

10. The third ground of appeal is a complaint that procedures were not dealt with speedily, as required by Articles 6 and 8 of the Convention. Arden LJ expressed scepticism in relation to that, questioning whether it was in truth a ground of appeal or merely a generalised complaint; and Ms Bretherton in her grounds of renewal has in effect accepted that the matter is not one independent of appeal, although she hoped that the court in due course, when it comes to hear the substantial appeal, might express some views about the disturbing list of problems which appear to have assailed both Ryder J and Baker J in this case.  Speaking for my own part from comparatively recent experience, sitting in these cases, both in front of the Court of Protection and the Family Division, has become far too frequent for judicial comfort.  In those circumstances, in common with Arden LJ, I would refuse permission on that ground.

11. The fourth ground of appeal, set in paragraphs 9 and 11 of the grounds of appeal, relates to what is said to be the legality of any placement at Z Road, there being, it is said by Ms Bretherton, "non-compliance involving the commission of a criminal offence in any placement at that location" because of, so it is said, non-compliance with the relevant regulatory regime.  Again, for my own part I confess to some scepticism as to whether there is at the end of the day real substance in that point, but again, as it seems to me, it would be desirable for the matter to be considered by the Court of Appeal and I therefore propose to give permission, but there again under Rule 173(1)(b). 

12. The final ground of appeal set out in paragraph 12 of the grounds of appeal alleges a breach of Article 8.  I was initially very sceptical indeed as to whether this added anything to the arguments based upon Article 5, my scepticism deriving from the provisional view that if Ms Bretherton succeeded on her arguments under Article 5 there would be no need for her to pursue arguments under Article 8, whereas conversely my provisional feeling was that if her arguments under Article 8 failed she was exceedingly unlikely to succeed on corresponding arguments under Article 8.  It may be on reflection that that was an unduly pessimistic appraisal of Ms Bretherton's submission, but I remain unpersuaded that there is a real prospect of success in relation to that ground, but again it seems to me that there may be considerable advantage in this court considering the Article 8 point so as to be in a position to give reasonably comprehensive guidance to the profession and to the judges in the context of these exceptionally difficult deprivation cases.  Accordingly, for my part I would give permission to appeal on the Article 8 point again under Rule 173(1)(b). 

13. The indication which had previously been given by the parties in court was that the appeal, were permission to be granted, would need to occupy the time of the court for some two to two-and-a-half days.  I do not, with all respect to those who may be of that opinion, share that view; but there is, it seems to me, the most pressing need for this appeal to be listed as soon as possible.  Bearing in mind the history of forensic difficulties which have assailed this particular case in the past, it is unthinkable that the ten-day hearing fixed for 19 July 2010 should be prejudiced by anything that happens in this court. Moreover and in any event, it seems to me that the arguments in relation to matters for which permission has been given can be dealt with fairly and justly in the course of a one-day hearing.  The counsel will of course have provided in advance skeleton arguments and will have provided bundles of authorities and, with the assistance of that material as well as oral submissions, can, I am confident, be fully accommodated without undue pressure or any pleading of injustice if the hearing is listed for one day. 

14. In that context I would add this observation.  There are a number of parties in this litigation. In relation to the matters which are going to be before this court it seems to me that those parties will essentially fall into two camps and only two camps, and I therefore urge careful consideration on all involved when deciding which party needs to be represented and which not.  It may well be the kind of case in which some of the parties could appropriately -- if they could appropriately then it seems to me they should -- adopt the stance of putting in written submissions supportive of supplementary similar submissions of the main protagonists, but not necessarily appearing before the court. 

15. There is one final matter and that is this: I mentioned, as it happens, the matter was listed for review before Baker J in two days' time on 6 May 2010.  It is of course entirely a matter for that judge to decide what, if any, directions he gives at that hearing with a view to ensuring that the final hearing fixed for July 2010 is not for some reason rendered abortive.  In that context, although as I stress it is a time matter for him, Baker J may wish to consider the desirability of giving directions later this week so as to ensure if this court were in the event to allow the appeal on the Winterwerp point, he would have all the materials he needs, whether by expert reports or other evidence, to enable a proper decision on that point to be taken at the hearing in July.  I would be very concerned indeed to think that the inevitable delay, which is going to be caused by the hearing of this appeal, should trickle through and in any way prejudice the hearing fixed for July, the prejudice being the possibility of the hearing fixed for July being anything other than a final hearing dealing finally with the matter in issue in the proceedings.  ^^(1.0.16) brought that to our consideration ^^(1.0.19) the attention of Baker J is of course entirely a matter for him to give such directions, if any, at the forthcoming review hearing, as he, having had the assistance of submissions of counsel (inaudible)

Lord Neuberger: 
16. I agree.  It seems to me that permission to appeal should be given on the basis that there is a real prospect of success in relation to what my Lord has called the Winterwerp point.  As to the other three points, they ought to be raised, other than what has been called the speed point.  I have significantly more doubts as to the prospects of those other points being arguable, but I see the force of the contention that it is desirable, particularly as an appeal is going to be mounted anyway, that guidance is given in relation to those points so far as other cases are concerned.

17. I echo my Lord's view that it should be possible to deal with this appeal within one day, particularly if counsel bears in mind the fact that there is only one day and prepares both their written and oral submissions accordingly. 

18. It would also obviously be desirable to have minimum representation simply from the point of view of costs.  Although it is, as my Lord has rightly emphasised, a matter for Baker J, it may well be desirable to consider whether to give directions which proceeds on the assumption -- which is no more than a possibility of course at the moment -- that this court may take a different view on the Winterwerp point from that taken by him.  I emphasise for the benefit of the parties and to be fair to the judge, as my Lord has done, that his view on the Winterwerp point may well be upheld.  All we are saying at this stage is that there is an arguable case for saying that he was not right on the Winterwerp point, in what, to me at any rate, appears to be an exceptionally conscientious and careful judgment. 

Order:  Application granted on grounds 1, 2, 4 & 5; ground 3 refused