MA & Anor, Re
[2023] EWCOP 65
MA v A Local Authority & Ors
22 February 2024
[2024] EWCOP 48 (T2)
Court of Protection
An elderly couple with dementia were separated in a care home. The wife appealed, saying the judge didn't consider their long marriage enough. The appeal court agreed some things could have been better, but the judge's decision to stop contact was fair because contact made the wife very upset. The court will check again in a few months to see if things have changed.
Key Facts
- •Appeal against a decision to prevent all contact between a married couple (MA and AA) with over 60 years of marriage, both suffering from dementia and living in separate care homes.
- •Both parties lack capacity, represented by the Official Solicitor.
- •Separation due to MA's challenging behaviour impacting AA's health.
- •Limited contact attempts post-separation proved distressing for MA.
- •Expert evidence from Professor Burns (Old Age Psychiatry).
- •Appeal based on eight grounds, primarily challenging the weight given to wishes, feelings, beliefs, and values in the best interests analysis under the Mental Capacity Act 2005.
- •Article 8 ECHR rights also raised.
Legal Principles
Best interests determination under s.4 MCA 2005, considering wishes, feelings, beliefs, and values.
Mental Capacity Act 2005
Appellate court's approach to findings of fact (Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5).
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5
Aintree University Hospitals NHS Foundation Trust v James 2013 UKSC 67 (best interests analysis).
Aintree University Hospitals NHS Foundation Trust v James 2013 UKSC 67
Article 8 ECHR (right to respect for private and family life).
European Convention on Human Rights, Article 8
Outcomes
Appeal dismissed on all grounds except Ground 8 (Article 8 ECHR).
Judge's decision was considered careful and thorough, with sufficient weight given to all relevant factors. While some minor criticisms were levelled at the judge's findings, these were deemed not to affect the overall best interests assessment.
Permission to appeal granted on grounds 1-7; refused on ground 8.
Arguable case presented regarding the balancing exercise, specifically concerning the weight given to MA’s wishes, the formulation of the Aintree question, and omissions in the balance sheets.
No contact order upheld.
The overwhelming evidence indicated that continued contact caused significant distress to MA due to AA's lack of recognition and the practical challenges involved in facilitating contact. The court acknowledged the importance of the marriage but prioritized MA's current well-being.