Parental alienation and a person’s capacity to make nuanced decisions were addressed recently in the court of protection.
The judgment focused on RK, a 30-year-old woman with Down syndrome, a moderate to severe learning disability and partial sight impairment.
RK had been assessed as having a learning disability and some communication difficulties. She was resident in supported living accommodation, Castle Hill, with services commissioned by a county council from Signia Family Support Services (not their real names).
She was described as a confident woman who could articulate her needs and wishes verbally, demonstrating a well developed vocabulary and comprehension. She appeared settled in Castle Hill, where she had lived for around eight years.
She benefited from activities run by Signia, although some had stopped, which the family believed was a result of pressure from the provider.
RK had an ambivalent relationship with her family, feeling empathy and love, but also anger because of perceived control issues.
Her opposition to family contact likely stemmed from past experiences, including lockdown restrictions, a police visit and disputes related to money, weight and concern about an intimate relationship.
RK fundamentally loved her family. However, she had been reluctant to see her parents since around late summer 2020. She expressed a desire to reconcile but was not confident it would be a positive experience.
Her vacillation in recent times over seeing her relatives did not necessarily indicate inappropriate pressure or a lack of capacity
Alongside questions of parental alienation and decision-making capacity, this case also considered the inherent jurisdiction. This was in case RK did have capacity with regard to her care and family contact but needed more time to consider matters to make fully informed decisions.
Undue influence
The inherent jurisdiction is a power the high court has to make orders and grant injunctions in certain circumstances. Such orders can be used to protect a person who does not lack mental capacity under the Mental Capacity Act but is vulnerable because their decision-making is impaired owing to abuse, undue influence or coercion.
The inherent jurisdiction should be applied only to adults whose decision-making capacity has been compromised by factors other than mental incapacity. The burden of proof falls on the applicant (in this case, the father) to demonstrate that the individual’s will has been overpowered by coercion, undue influence or other vitiating factors.
Before this hearing, the court had determined that RK lacked capacity for certain decisions (for example on litigation and financial or property matters) but she had capacity for others (such as over where she lived and support).
RK was represented by the official solicitor because there was no dispute that she lacked litigation capacity. The judge visited her accommodation, spending time with her to gain insight into her living conditions and situation.
RK’s family sought various declarations and orders regarding her capacity to make decisions about contact, protection from undue influence and her interest
in revoking a lasting power of attorney that she had already granted to a family member.
If she did not lack capacity in relation to these issues, they wanted an order under the inherent jurisdiction powers to ensure she had more space in which to make decisions of her own.
Capacity the main issue
Although RK’s family had been calling for an extensive fact-finding inquiry to get to the bottom of all the concerns, the judge emphasised the need to focus on her capacity and best interests decisions. He did not find it necessary to make findings about facts to determine what the court needed to decide.
The judgment began by stating that there was no clear jurisdiction for making any decisions about RK’s care going forward, either in the court of protection or under its inherent jurisdiction for adults who were merely vulnerable.
RK likely had the capacity to decide on her care provider. Given that she was so fed up with the proceedings, the judge said that changing provider at a care planning level would carry the risk that she was likely to reject the new provider and perceive her parents were behind this change.
The judgment concluded that the legal proceedings should end.
It acknowledged the negative impact of the litigation on RK’s relationships and emphasised the importance of family reconciliation. The judge suggested that initial contact between RK and her family should be via video calls and mentioned the potential involvement of a sibling’s new baby in the process.
Consultant psychiatrist Dr Claudia Camden-Smith assessed RK’s capacity and noted her inability to understand the pros and cons of contact with others.
Consultant clinical psychologist Dr Katherine McKay, however, concluded that RK retained the presumption of capacity in this regard. She understood the issues, could use and weigh relevant information, retain information and communicate her views. Her vacillation in recent times over seeing her relatives did not necessarily indicate inappropriate pressure or a lack of capacity in the expert’s view.
The judge agreed with McKay.
RK’s social worker observed that a meeting with the parents had been very distressing for all concerned and it was regrettable that RK’s parents approached the meeting by seeking to interrogate her and defend themselves.
Being interviewed repeatedly on the same issues left her feeling that her views, experiences and, importantly, her own decisions had been disregarded
At the end of the meeting, the RK’s mother gently hugged her and said, “I suppose we won’t be seeing you again,” and her father placed his arm around her back and said, “Have a nice life” – comments they regretted by the time of the hearing.
To his credit, RK’s social worker made this observation: “This independent spirit… has been continuously undermined and undervalued time and time again.
“R has been assessed, questioned and interviewed repeatedly over the same issues which have left her feeling that her words and feelings count for little – that her views have been ignored or diminished, her experiences, her feelings and, more importantly, her own decisions disregarded.”
Case: RK, Re (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37
