Judge: Hedley J.
Citation:  EWHC 3932 (COP)
Summary: Proceedings were brought by the LB Haringey regarding the welfare of a young woman, HG. As a preliminary issue, Hedley J. had to decide whether HG had the capacity to litigate, and also whether she had the capacity to decide where she should live, where she should be educated, on the extent of the contact and relationship she should have with her natural family, to deal with her financial affairs, and to enter into what was described as a tenancy agreement. Hedley J. conducted a detailed analysis of the evidence as it related to HG’s capacity in each of these domains, and concluded that she lacked capacity in each regard. For present purposes, perhaps of most significance is what he then said by way of conclusion at paragraph 21, where he noted by way of a final comment:
“I have been referred to the decision of Mr Justice Baker in PH v A Local Authority  EWHC 1704 (Family). This is a considered decision on capacity, and one that is undoubtedly helpful, particularly in relation to its analysis of the law between paragraphs 13 and 16. I have deliberately not referred to it in this judgment, not because it is unhelpful or because I disagree with it, but because it seems to me that unless and until there is any binding authority available, courts may be safest in an approach to this case by ascertaining the facts, applying the statutory principles and reasoning a conclusion from that, and treating each case as one to be decided on its own facts. I say that so as to avoid a multiplicity of first instance judgments being cited as a matter of course in these cases. It may be that parties and advisors and those who have to operate this system will find the individual expressions of judges helpful, but debates in proceedings about saying the same thing in many different ways does not seem to me helpful, particularly, where, as here, no doubt increasingly so in the future, the question of capacity will be determined summarily as a preliminary issue prior to the determination of welfare which is probably, in most of these cases, what is going to be upper most in the minds of all those who engage in them.”
Comment: Whilst we do not set out here the detail of Hedley J.’s assessment of HG’s capacity to take the decisions in question, they stand (a little ironically, given his comments in paragraph 21) as a model of the exercise which we would commend to our readers.
His comments at paragraph 21 chime with those that he has subsequently made in A Local Authority v H  EWHC 49 (COP), in which he expressly decided to return to first principles in considering the question of whether H had the capacity to consent to sexual relations, only turning to previous first-instance authorities in essence by way of a cross-check. They also stand as a salutary reminder against over-burdening already groaning Court bundles with authorities in circumstances, where, as the President reminded us in RT v LT and Anor  EWHC 1910;  COPLR Con Vol 1061, “what we now have is the Act (as amended) and the essential judicial task is to apply the plain words of the statute to the facts of the case before the court.”