A v B and Ors  EWCOP 1
This article originally appeared in Issue 5 (May 2020).
A mother was refused permission to apply for a full review of the arrangements for contact with her severely autistic son, on the basis that she could not show a “good arguable case” that a review was likely to lead to the arrangements being changed.
This case concerned the level of a mother’s contact with her severely autistic son, “D”. Aged 20 at the time of the hearing, D had been in the care of his father and the father’s partner since he was 3 years old, and his contact with his mother was very limited. Over the course of the next 17 years, the mother had brought a number of substantive applications for a review of the contact arrangements, each time involving in-depth investigations by various combinations of psychiatrists, the Tavistock Centre, the Guardian ad Litem and Cafcass. At the time of the hearing, the extant contact regime permitted four supervised 2-hour visits per year. It had been confirmed by the court two years previously.
The mother faced two permission hurdles in order to bring about a substantive review. First, she was subject to a civil restraint order – but she was granted leave to proceed under the terms of that order in July 2019. Secondly, she had to acquire permission from the Court of Protection to apply to have the contact arrangements reviewed in full. That is because section 50 of the Mental Capacity Act 2005 provides that, subject to a limited list of exceptions set out in subsections 50(1) and (2), permission is required for such applications to that court.
Mostyn J referred to section 50(3), which sets out the factors the court is to have particular regard to when considering an application for permission, namely (a) the applicant’s connection with the person to whom the application relates, (b) the reasons for the application, (c) the benefit to the person to whom the application relates of a proposed order or directions, and (d) whether the benefit can be achieved in any other way. He also noted, however, that there is no authority which sets the merits “threshold” for permission to be granted. In those circumstances, the judge was inclined to follow the test for permission to proceed with judicial review proceedings i.e. the applicant had to demonstrate a “good arguable case” that at a substantive hearing, she could show that it was in D’s best interests for the present contact arrangements to be altered.
It had been argued by the mother that the fact that D had recently passed the age of majority was a relevant factor, but this was rejected by the court as an “arbitrary chronological threshold” in the context of an individual with a mental age of seven years. Rather, Mostyn J took into account the evidence which showed that, although D derived some pleasure from visits with his mother, he also exhibited distressed behaviour prior to and after such visits. In those circumstances it was difficult to envisage the benefit to D in having the level of contact increased. He also accepted a submission from the father that nothing had materially changed since the current regime had been confirmed by the court following a previous review two years ago.
In the circumstances, the mother did not cross the second hurdle for permission, and her application was rejected. The decision provides a useful steer on the threshold requirement for permission under section 50 of the MHA 2005, and demonstrates the relevance of a change in circumstances where the application seeks a change in extant contact arrangements.