Court of Appeal Upholds Decision on Best Interests vs. Risk Assessment in Travel Case Under Mental Capacity Act 2005

Citation: [2024] EWCA Civ 3
Judgment on

Introduction

The Court of Appeal (Civil Division) in “J (by his Litigation Friend, the Official Solicitor) v Luton Borough Council & Ors: EWCA-Civil 2024 3” addressed an appeal concerning the balance between best interests and risk assessment under the Mental Capacity Act 2005 (MCA 2005), with respect to a person lacking decision-making capacity who wished to travel to Afghanistan.

Key Facts

J, a young man with severe learning difficulties and represented by the Official Solicitor, and his family planned a trip to Afghanistan for a family holiday and arranged marriages. The local authority applied for a Forced Marriage Protection Order (FMPO), preventing the trip. The family accepted J’s incapacity to marry and engage in sexual relations. Later, the FMPO was discharged for the sister but remained for J. A mental capacity assessment determined J could not decide independently about his travel to Afghanistan. J’s family sought permission for J to travel, which was denied by Mrs. Justice Roberts, citing significant risks advised by the Foreign, Commonwealth & Development Office (FCDO) and prioritizing J’s safety and progress made in the UK. The Official Solicitor appealed the decision.

The court’s analysis was guided by several legal principles:

  1. Best Interests under MCA 2005: The court considered J’s best interests, considering his inability to weigh the information enabling an independent choice about travel. The MCA 2005 requires the court to take into account the person’s past and present wishes, beliefs, values, and other factors they would likely consider if able to do so.

  2. Adherence to Advice: The judge relied on FCDO advice which strongly recommended against travel to Afghanistan for British nationals due to safety concerns and the lack of consular services. The court acknowledged the advice’s significance but did not treat it as binding.

  3. Rights under Article 8 of the European Convention on Human Rights (ECHR): Designated protection of one’s right to a private and family life. The decision proportionally considered Article 8 rights, ensuring the interference was justified and appropriately balanced J’s interests and family needs.

  4. Discrimination under Article 14 ECHR: The appeal also considered whether the decision discriminated against J based on his disability and his incapacity to make the decision to travel. The appeal was allowed on this ground, though it was acknowledged as likely not forming a separate issue.

  5. Notion of Allowing ‘Mistakes’: Referencing An NHS Trust v P & another [2013] EWHC 50 (COP), it was considered whether shielding J from potential mistakes could lead to judicial over-protectiveness, which the MCA aimed against.

  6. Precedent of Aintree and Re UR: The Supreme Court case Aintree University Hospitals NHS Foundation Trust v James reaffirmed considering individual wishes and values as a significant factor in best interests decisions. Re UR was engaged regarding the importance of mitigating over-protectiveness.

  7. Assessment of ‘Unwise’ Decisions: While individuals can make unwise decisions, the court must ensure that any decision made on behalf of a person lacking capacity is truly in their best interests, even if the decision might seem unwise to others.

Outcomes

The appeal was dismissed by the Court of Appeal after a thorough analysis of the decision-making process used by Mrs. Justice Roberts. It was determined that she had adequately considered J’s and the family’s wishes, alongside the potential risks, as informed by the FCDO advice. The MCA 2005 framework was applied appropriately, and the judge’s decision did not constitute discrimination under Article 14 nor unjustly infringe upon J’s Article 8 rights.

Conclusion

In “J (by his Litigation Friend, the Official Solicitor) v Luton Borough Council & Ors,” the Court of Appeal upheld the decision that it was not in J’s best interests to travel to Afghanistan with his family, chiefly due to safety risks affirmed by the FCDO advice. The decision reflects a critical judicial balancing act between an individual’s rights to autonomy and the duty to protect their welfare, as codified in the MCA 2005 and interpreted within the context of established case law, including Aintree and Re UR. The court’s systematic approach emphasized the importance of individual circumstances over blanket application of guidelines and illustrated the nuanced application of best interests assessments in complex situations involving capacity and international risk.