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Brazil

This is a case about protection of a vulnerable adult, who has capacity to make a decision, but where everyone involved could see that the decision was a very very poor one, even the adult herself accepting that if a friend came to her with the same decision she’d say “of course it does not sound like a sensible plan”

EF is a girl aged 18, coming up to 19. When she was 14, she met a man GH on an online chatroom. GH was at that time 25. When she was 15, GH sent her an engagement ring and told her that they would get married. In September 2019, GH came to the UK to meet EF, and whilst in the UK he was arrested on charges of indecent images of children.

GH returned to Brazil. EF wants to go to Brazil to be with him.

The London Borough of Islington brought the case to Court, seeking under the inherent jurisdiction orders preventing her from going to Brazil.

The Court say this about GH

What is known is as follows. He is 11 years older than EF. He met her in a chat room when she was 14 and continued a relationship with her when he learnt she was 15. He admits to EF that he is addicted to pornography and has downloaded child pornography including images of very young children. He told EF that this action was linked to his addiction. He knows about EF’s mental ill health and her need for mental health support and so her vulnerability.

Of course anyone looking at this case would be very worried about EF, who is vulnerable and appears to have fallen in love with a man about whom there are significant red flags. However, it is clear that EF has capacity to make decisions for herself, even unwise ones.

The Court was driven to the conclusion that the orders sought by the Local Authority were a very significant interference with the freedoms of a person who whilst vulnerable had capacity to make decisions for herself, even very bad and unwise ones. The Court declined to make the orders (which must be right in law, though you can easily see why Islington asked for them) but also urged EF to think very carefully before making the trip to Brazil and EF had agreed to undertake some educative work before going.

Discussion
The first point to reiterate is that it is clear from Dr D’s evidence and the parties agree that EF has capacity and that therefore the court’s jurisdiction is not the MCA.
I am also mindful of the statutory principles set out in section 1 of the MCA namely that a person must be assumed to have capacity unless it is established that she lacks it and that a person is not to be treated as unable to make a decision merely because she makes an unwise one.
As EF has capacity the only jurisdiction that this court has to make the orders the LA seeks is pursuant to the court’s inherent jurisdiction but the exercise of this is carefully circumscribed as set out above and the power must be used sparingly.
Although the MCA does not apply I think the above principles apply equally in this case, namely that I should assume EF is able to make her own decisions and should not be treated as being unable to merely because she is making unwise ones.
I have considered all the cases that I have been referred but in my judgement the weight of the authorities clearly indicates that this jurisdiction should be used rarely and in any event should be facilitative and not dictatorial and that the court should not make orders against the subject of the proceedings prohibiting them from acting in accordance with their wishes.
The orders that the LA seek are dictatorial and aimed at the victim namely EF. The LA is expressly seeking to impose such decisions upon EF, namely prohibiting her from visiting or living with her partner, prohibiting her from travelling to Brazil and prohibiting her from having her passport without the permission of the court. The net effect of these prohibitions is also to stop EF from seeing GH. The LA are seeking for decisions of the utmost significance to be imposed upon EF. On that basis alone I should not make them.
If I am wrong about that and there is a jurisdiction to make such orders against victims it only exists in truly exceptional circumstances. I am not satisfied that those exist in this case. The scale of interference is significant and not in reality time limited to 6 months as it is by no means certain that in 6 months’ time the court will be in a different position as there is every chance that despite the work that EF will carry out with the LA her views will not have changed. The justification for the inference is the risk to EF’s health and wellbeing and in the worst case her life. I have already dealt with my assessment of that risk.
Moreover, EF is an adult with capacity and wants to be in a relationship with GH. She has known him for 3 years and separated from him once. She has received advice from professionals not to go and is intelligent enough to understand that advice and act on it if she so wishes. She plans to visit Brazil at least once before moving there permanently. She has saved up a reasonable sum so that she will have a degree of independence once over there. She plans to take a second mobile phone with her as another level of security. She has researched the medical and health facilities in Brazil and is aware of its shortcomings. She has agreed not to travel to Brazil until her course is completed. She has agreed to continue to work with the LA before she leaves. These are sensible decisions which show a degree of independence and critical thinking.
In addition I have very much in mind EF’s Article 8 right to respect for her private and family life which if I were to make the orders sought by the LA would be breached as she would be prevented from pursuing the relationship she wants and living the life she wants. As already stated the purpose of invoking the inherent jurisdiction in respect of a vulnerable adult should be to enhance a person’s Article 8 rights not limit them. Article 8 protects and obligates the State to “respect” both “family life” and “private life”; this includes a person’s right to live their personal life as they choose and establish and develop relationships including intimate relationships. The orders the LA seek would fundamentally breach EF’s Article 8 rights. Moreover, as already referred to, whilst the LA only seek orders for a further 6 months, such orders have been in place for 9 months already and there is a real chance and KL
accepted that in 6 months the LA’s position will not have changed and they will seek further orders.
Lastly to impose what would be a worldwide travel ban for any further period of time would be a highly intrusive step by the court would and only be justified in exceptional circumstances. I am not satisfied those exist in this case.
I am conscious of the fact that the only reason why court intervention is possible in this case to stop EF’s relationship with GH is because he lives in another continent. If EF was associating with a man who lived in London who the LA thought was unsuitable they would not be able to protect her from that save by depriving her of her liberty which step they obviously would not take.
Conclusion
This is a difficult case but I have therefore reached the clear conclusion that the court should not continue to invoke its inherent jurisdiction to stop EF from travelling to Brazil and so having a relationship with GH.
In the Court of Protection in the case of LB Tower Hamlets v PB [2020] EWCOP 34 Hayden J, VP, stated that:
” The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.”
In my judgement this general principle has application in this case.
I have therefore decided to end the protective orders that have been in place.
I do that on the basis that EF has undertaken to this court that she will not travel abroad before the end of her college course on 5.07.22 and that in the meantime she will attend the proposed sessions of work arranged by the LA.
Postscript
I end this judgment with a plea to EF. I have accepted that the LA and Dr D are right to be very worried about her because I have found that there are real risks to EF’s wellbeing from moving to Brazil and living with GH.
I have concluded that the professionals in this case have EF’s best interest at heart and want to protect her and keep her safe.
The court’s view is that EF would be making a very unwise decision to move to Brazil.
I urge her to work with them between now and July when her course finishes.
I urge EF to attend all the sessions that the LA arrange for her.
I ask EF to listen carefully to the advice given and think more deeply about the issues in this case.
EF told me she would be worried if a friend of hers was about to embark on a similar trip. She needs to think about her own case as if she were that friend

https://www.bailii.org/ew/cases/EWHC/Fam/2022/803.html

London Borough of Islington and EF 2022

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

One response

  1. hi Andrews – sorry I’ve lost your email – can I nominate this case for your ‘judicial magic wand’ posts ? ( if you still do them ) … cheers … best wishes … Pete
    https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWFC/HCJ/2022/31.html&query=(somerset)

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