+44 (0)20 7832 1111
Welcome to 39 Essex Chambers
39 Essex Chambers is a leading set based in London, Manchester, Kuala Lumpur and Singapore. Our barristers offer a depth of expertise in a range of specialist sectors and practice areas.
39 Essex Chambers regularly produces case reports, articles, newsletters and seminar across a range of areas.
Please subscribe to our mailing list if you would like to receive regular updates.
Judge: Parker J
Citation: [2017] EWHC 3904 (Fam)
Summary
In this case, decided in 2017, but which only appeared on Bailii in March 2020, Parker J considered in considerable detail the operation of s.48 MCA 2005: i.e. the jurisdiction of the Court of Protection to make interim declarations and decisions.
The case concerned a wealthy woman, about whom her children were concerned, and in respect of whom they wished to bring an application to the Court of Protection. The dilemma they – and the court – faced was neatly summarised in these two paragraphs:
[…]
In order to proceed, Parker J had to resolve the conflict between the decisions of HHJ Marshall in Re F [2009] EWHC B30 (Fam) and that of Hayden J in Wandsworth LBC v A McC [2017] EWHC 2435 (Fam) as to the threshold for engaging the jurisdiction. HHJ Marshall had held that what was required was “sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard.” Hayden J had rejected HHJ Marshall’s approach, on the basis that “…the presumption of capacity is omnipresent in the framework of this legislation and there must be reason to believe that it has been rebutted, even at the interim stage. I do not consider, as the authors of the ‘Mental Capacity Assessment’ did that a ‘possibility’, even a ‘serious one’ that P might lack capacity does justification to the rigour of the interim test. Neither do I consider ‘an unclear situation’ which might be thought to ‘suggest a serious possibility that P lacks capacity’ meets that which is contemplated either by Section 48 itself or the underpinning philosophy of the Act.” Hayden J held that an interim declaration had to be founded upon a “solid and well-reasoned assessment in which P’s voice can be heard clearly and in circumstances where his own powers of reasoning have been given the most propitious opportunity to assert themselves.”
Parker J observed that:
Parker J went on to:
On the facts of the case, and applying the “simple test in the Act,” Parker J took the view that the s.48 threshold was crossed, and made an order (the precise terms of which were not set out in the judgment) to move the case forward. She had, earlier (and importantly) noted that, if the woman was “unwilling to see the experts instructed, or the medical professionals instructed; and/or the assessment is not concluded; it is agreed that a report should be written having regard to the written material alone.”
Comment
As we noted at the time that the Wandsworth judgment was handed down, it was a problematic decision (in which it appeared not to have been brought to Hayden J’s attention that Charles J, his predecessor as Vice-President of the Court of Protection, had expressly endorsed HHJ Marshall’s position). With respect, we entirely agree with the approach adopted by Parker J, which avoids some of the real difficulties that the Wandsworth judgment caused, in particular where it has not been possible to gain access to the person to carry out a proper capacity assessment.
Call +44 (0)20 7832 1111 for more information
Click the + icon next to any barrister to add their profile to this portfolio.
Barrister | Call | CV |
---|
Click here to email this list of barristers to a colleague
Remove All