PB v RB and Ors  EWCOP B41 (HHJ Altman)
RB was a 71 year old woman with Alzheimer’s disease who lacked capacity to make decisions about contact, including with her son, PB. Proceedings in the CoP took a sadly familiar path, with PB objecting to the care being provided to his mother and voicing those objections to professionals in a way which the court found placed her care at risk. Restrictions were placed on PB’s contact with RB, and in due course, DJ Eldergill determined that a member of the local authority should be appointed as welfare deputy for RB, with the power to make decisions about contact between RB and PB. In particular, the deputy was to be permitted to prevent contact beween RB and PB taking place for up to a maximum of 7 days in the event that PB became embroiled in conflict once again which threatened to put RB’s care at home at risk. PB appealed on the basis that it was ultra vires s.20 MCA 2005 for the court to provide the Local Authority deputy for welfare with the power to suspend contact for up to one week, because the Act provides that a welfare deputy cannot ‘prohibit’ contact.
The appeal was dismissed. The court noted that s.17 MCA 2005 distinguished ‘deciding what contact, if any P, is to have with any specified person’ and ‘making an order prohibiting a named person from having contact with P’. The latter was not within the power of a deputy by virtue of s.20(2)(a) MCA 2005. But ‘prohibiting contact’ did not mean a permanent ban on contact, as the judge had found at first instance. That being the case, how could the 7 day ban which the deputy was permitted to impose be distinguished from the prohibition of contact?
The difference between the two provisions was determined by asking if the period without contact could be part and parcel and an incident of an on-going management and monitoring of contact in a flexible way for a proportionate period of time and as a proportionate adjustment to the arrangements that would otherwise have taken effect in the particular family, or would it be more of a specific response, standing alone, to a situation with the consequence of a set pattern of no contact probably for a more substantial period of time commensurate with an application to court (paragraph 24)?
In the instant case, it was within the scope of the deputy’s powers to prevent contact between RB and PB for up to seven days at a time as part of the day to day management of contact without having to refer back to the court, the court having determined itself the limit to the cessation of contact but allowing the deputy to exercise his discretion in deciding whether to cease contact for short periods within that framework. The deputy had not been given a power to prohibit contact within the meaning of the statute.
The explanation of the difference between prohibiting contact and a 7-day ban on contact in this decision is somewhat tortuously worded, and yet captures a readily understandable distinction on the facts of the case. The deputy is attempting to manage a dynamic situation on the ground by exercising a power, approved by the court, to stop visits where it is clear that problems are otherwise going to arise for P, without having to apply to the court first. If the deputy (or any decision maker) had to apply to the court for a declaration each time a contact visit needed to end early, or to be postponed or cancelled due to X’s conduct, the Cheshire West flood would rapidly start to look like a small puddle. No doubt it would be simpler if ‘prohibition’ meant ‘permanent ban’, but the formulation adopted in this case gives more protection to P (and P’s visitors), as the crucial aspect of the deputyship order which ensured the validity of its time-limited suspension of visits was the court’s preliminary authorization of a framework for contact which followed a full investigation of RB’s best interests.