G v E & Ors  EWHC 3385 (Fam) (21 December 2010) – Read judgment
Manchester City Council has been ordered to pay the full legal costs of a 20-year-old man with severe learning disabilities who was unlawfully removed from his long-term foster carer. The council demonstrated a “blatant disregard” for mental health law.
The case has wound an interesting route through the courts, with hearings in the Court of Protection, Court of Appeal, and also a successful application by the Press Association to reveal the identity of the offending local council in the interests of transparency. In August, Siobhain Butterworth wrote that the decision to name and shame the council was a “good” one which “marries the need for transparency in the treatment of vulnerable people with the right to a private life“.
Now, Mr Justice Baker has taken the unusual step of ordering that Manchester City Council pay all of E’s family’s legal costs. The general rule in the Court of Protection is that costs should not be awarded, but as the judge ruled it can be broken in certain circumstances:
The work carried out by the local authorities and other public bodies such as NHS Trusts in this important field cannot be underestimated… That does not mean, however, that local authorities, or any other public bodies, can be excluded from liability to pay costs in appropriate cases. (para 38)
Simply, the local authority’s behaviour was so bad in this case that it justified breaking from the rule:
I am entirely satisfied that the local authority’s blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the ECHR amount to misconduct which justifies departing from the general rule. (41)
Moreover, it was no excuse that the local authority staff were ignorant of the rules under the Mental Capacity Act. Mr Justice Baker made clear that ignorance is no excuse in this or future cases:
Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions… As it is, the local authority’s actions in this case would have infringed E’s Article 5 and 8 rights under the old law as well as under the MCA. (41)
Nor was the judge interested in hearing how strained public finances are:
I deprecate the practice of relying on arguments that the impact of a costs order would reduce the local authority’s social care budget. The Legal Services Commission could equally well argue that the denial of a costs order in this case in favour of G, F and E will reduce the funds available for other cases. If a costs order is made, that will be the fault of Manchester City Council, not the Court. (39)
E’s family have already spent a lot of time in court, and the costs bill will be substantial. The complicated background to the case is set out in paragraph 6 to 21 of the judgment. In short, E suffered from severe learning difficulties. He had been living with F, his former foster carer, for around 10 years when he was removed from her care by the Local Authority.
Mr Justice Baker ruled in March that the council had deprived E of his liberty and infringed his rights under article 5 of the European Convention on Human Rights, and had also breached his article 8 rights to family life by removing him from his long-term foster carer without enough consideration or consultation. The Court of Appeal upheld the decision (read our post).
The family may not have had their last day in court, however. Permission is being sought to appeal to the Supreme Court for the original judgment against the council. If the appeal is successful, Mr Justice Baker has agreed to reconsider his decision on costs. And the question of damages for breach of E’s rights is to be decided later this year.
For now, this decision will serve as a warning to local authorities that they will not always be protected from paying out legal costs in the Court of Protection. In the most serious cases, where rules have been ignored and the rights of highly vulnerable people breached, authorities may have to pay out legal costs however empty the public purse.
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