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Family Law

The leading authority on all aspects of family law

18 MAY 2007

LOCAL AUTHORITY: Re Schwarz

(Family Division; Charles J; 18 May 2007)

The local authority sought declaratory and injunctive relief under the inherent jurisdiction concerning a vulnerable adult, the husband, who lacked capacity. The wife was firmly of the view that the husband would be best placed at home, with appropriate support; the authority and the primary health care trust supported his placement in a nursing home. Questions arose as to the legal approach, procedurally and substantively, to the case, in particular the possibility of the wife raising a public law challenge to the decision made by the authority and the health trust. The Official Solicitor had concluded that the husband's best interests were promoted by placement in the nursing home.

The correct procedural approach was to deal with and decide the public law challenge first. If that challenge failed, there was little or no life left in the inherent jurisdiction proceedings. If the husband had had capacity to make decisions as to where he should be placed and how he should be cared for, his position would have been either that he would provide for himself on a privately funded basis, or that he would rely on, or challenge as a matter of public law, decisions made by public authorities. The court could make and impose different choices because the husband lacked capacity. If, on a full examination of the evidence, the court concluded that the husbands best interests would be served by him being at home, the court could not compel the health care trust or the local authority to provide support to bring this about. The court's view would be taken into account by the relevant public authorities, and the court might feel strongly enough about best interests to seek to influence those authorities, but should only do so having given careful consideration to the respective roles of the court and the authorities, although it was quite common for the courts to provide assistance to break through procedures and red tape when they felt that decisions needed to be made quickly. Generally, if a court thought that a decision by a public authority was within the range of decisions open to it, and there was no other public law attack likely to succeed, it ought not to embark upon a lengthy trial process with a view to 'negotiating' with the relevant statutory decision maker. When, as in this case, the relevant public authorities had made their decisions, the general approach of the court in determining best interests and granting any relief under the inherent jurisdiction was one in which the court should focus on what was practically available.

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