(unreported, 6 February 2013)

Best interests – Contact

Summary

In June 2008 LP left her husband, BP, and her family to live with PP. LP told the police that she had been subject to abuse and domestic violence in the past and felt that she and PP were in danger from LP‟s family, who she felt would attempt to trace them. LP only contacted a few individuals after she left the family home, including her grandfather and one of her brothers, and had no contact with her husband or her children.

Less than three months after she left the family home, LP suffered a cerebral aneurism. As a result, LP currently resides at a care home and requires twenty four hour care. It was impossible to obtain any indication of LP‟s wishes following her injury. Although there was the potential for LP to undergo surgery in the future which might improve her ability to communicate, it was believed that any changes would only be minor.

LP‟s family discovered that she was living in the nursing home and were prevented from having contact with LP by the local authority, in accordance with LP‟s expressed wishes prior to her aneurism. The local authority made an application to the Court of Protection but by the time of the final hearing the only parties were PS (the daughter of LP) and LP, by her litigation friend the Official Solicitor. The sole issue for determination was whether it was in LP‟s best interests to have contact with her family. LP had written a will and a "letter of wishes" in July 2008 in which she was highly critical of her husband and children. PS and her family challenged the veracity of these documents, claiming that the letter was not in her style of writing and had been written at a time when LP was subject to improper influence from PP. PS and her family were adamant that the criticisms made by LP were untrue and that she would have wished to see them.

Having heard the evidence of the parties, His Honour Judge Cardinal was in no doubt that LP‟s wish not to see her family was quite genuine and of her own volition at the time she expressed it. In considering the authorship of the will and the letter of wishes, His Honour Judge Cardinal did not feel it was appropriate to place great weight on the evidence of a forensic linguistic expert and found that, in any event, whoever may have written the documents, it could not be said that LP was incapacitous in 2008 at the time she signed the will and the letter of wishes. His Honour Judge Cardinal considered that LP‟s clear expression of her wishes was a magnetic factor in the case and, after weighing all the relevant matters, concluded that it was not in the best interests of LP to see her PS and her family unless there was a change in LP‟s situation at some point in the future.

Comment

This case illustrates the difficulty that arises where there is conflicting evidence as to a person‟s true wishes and feelings prior to their sudden loss of capacity. The Court derived great assistance in this case from LP‟s signed letter of wishes and the impression that LP gave to the detective sergeant who spoke to her shortly after she left the family home. In the absence of this evidence, the Court‟s task would have been significantly more difficult. It is suggested that anyone presented with a client who is considering a major break in their family ties may wish to consider advising them to record their detailed wishes and feelings in writing, and to sign and date the document in the presence of a suitably independent witness, preferably a solicitor, to avoid disputes about these matters in future.