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Family Law

The leading authority on all aspects of family law

24 SEP 2014

Somerset County Council v MK and Others

Somerset County Council v MK and Others

Somerset County Council v MK and Others

Please see attached file below for the full judgment.

Somerset County Council has received heavy criticism in a recent landmark judgment from the Court of Protection following the Council’s involvement in the case of P, a young Somerset-based woman with autism and a learning disability.

The case has been said by some to be one of the most serious deprivation of liberty cases with which the Court of Protection has had to deal.

The proceedings arose because of the council’s decision to prevent P from leaving respite care and returning to live with her family. In pursuing this course, the council was held by the Court of Protection to have unlawfully deprived P of her liberty for a period of 14 months.

P had been kept in respite care by the council following the discovery of bruising on her chest. In deciding to detain P in this way, the council relied on unsubstantiated allegations that the bruising had been caused within the home environment.

Significantly, however, the council did not take account of several other possible explanations for the cause of the bruising, not least the fact that P had been observed hitting herself in that area and that she had also taken a member of staff to ground whilst out on a school trip. Crucially also, P herself was not given the opportunity to explain how the bruising had occurred.

Staff from the council who assessed the bruising at the time under the council’s safeguarding framework failed to properly investigate the evidence and failed also to disclose to assessing medics that P may have sustained the bruising for a variety of reasons other than abuse.

P’s mother, M, was a party to the proceedings and maintained throughout that the bruising had not been caused at home. Her account was supported by the evidence. M also maintained that the respite care into which the Council moved P was entirely unsuitable for her needs.

In delivering his judgement that the council had unlawfully deprived P of her liberty, His Honour Judge Marston criticised the council for its systemic failure, its corporate failings and its misguided philosophies. The council continued to pursue an unsubstantiated case against the family, and refused to drop allegations made against them.
His Honour Judge Marston also agreed with M that the initial respite placement was inappropriate for someone with P’s needs and that this would have been ‘stunningly obvious’ to those involved.

Fourteen months after she was prevented from doing so, P has finally returned home to live with M, and a claim for damages is now being pursued on behalf of both P and M.

M was represented in the proceedings by Catrin Blake from Butler and Co solicitors, a Taunton based firm specialising in representing patients and families in Court of Protection proceedings. M was also represented by Mr Kevin Farquharson and Ms Claire Wills-Goldingham QC of Albion Chambers, Bristol.

A crucial feature of the case was that M had not been advised by the council’s social workers, as she should have been, that she herself had the right to go to the Court of Protection to challenge the council’s decision. It was not therefore until the council brought separate proceedings some months later that M was prompted to obtain legal advice.

The case highlights a clear lack of understanding on the part of the council into this crucial area of law and procedure, a lack of understanding which led to a vulnerable adult being deprived of her liberty and separated from her family.

As importantly perhaps, the case also acts as a reminder to all those involved in the care of vulnerable adults that they should seek specialist legal advice when issues such as this arise. Legal aid is often available to cover advice and representation in such cases.

In the Court of Protection (sitting at Bristol)

In the matter of Somerset County Council v MK

Date: 6th July 2014

Before:

His Honour Judge Nicholas Marston

Between:

Somerset County Council
Applicants

and

M.K
First Respondent
M
Second Respondent
F
Third Respondent
MG
Fourth Respondent
A
Fifth Respondent

Robin Tolson Q.C. and Louise O'Neil for the local authority
Aswini Weereratne for MK
Claire Wills-Goldingham QC and Kevin Farquharson for M
The 3rd and 4th Respondents appeared in person


JUDGMENT

Somerset County Council v MK and Others
Family Lawyer and the Court of Protection, The

Family Lawyer and the Court of Protection, The

Explains the relevance of the Court of Protection in family matters

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Court of Protection Law Reports

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