Judge: Baker J
Citation:  EWCOP 33
This is a mammoth judgment running to 92 pages following a hearing that lasted over 2 weeks. It has been reported predominantly for what Baker J said (or, rather was very careful not to say) about the MMR vaccine and any link with autism, but we do not focus upon that aspect here, not least because Baker J was at pains to say that the MMR vaccine had nothing to do with the case before him.
The case concerned M, a 24 year old man with autism and learning disabilities and charted the difficult relationship which developed between E (M’s mother and health and welfare deputy) and the local authority from M’s late teens and culminated in the local authority making an application to the COP. The local authority made a series of allegations against E’s parenting of M which led to a lengthy fact finding hearing.
At paragraph 253, Baker J summarised the critical facts which had been established in the case as follows (253):
“M has autistic spectrum disorder. There is no evidence that his autism was caused by the MMR vaccination. His parents’ account of an adverse reaction to that vaccination is fabricated. The mother has also given many other false accounts about M’s health. He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease. As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions. He did have a dental abscess for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering. E has also insisted that M be subjected to a wholly unnecessary diet and regime of supplements. Through her abuse of her responsibility entrusted to her as M’s deputy, she has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived. This behaviour amounts to factitious disorder imposed on another. In addition, E has a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder”.
The main focus of the case was the fact finding exercise (which led to the conclusions above) and the judgment contains a useful summary of the principles which should be applied to a fact finding hearing in the COP (at paragraphs 82 – 90). In short, Baker J held that the legal principles in the COP should be broadly the same as in children’s proceedings where a court is investigating that a child has been ill-treated or neglected. Those principles have been summarised by Baker J in a number of cases including Re JS  EWHC 1370 (Fam). The principles which were of particular importance in the instant case (and are likely to be of importance in the majority of COP cases) are set out here for ease of reference:
“83. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them.
84. Secondly, the standard of proof is the balance of probabilities: Re B (Children)  UKHR 35. If the local authority proves a fact on the balance of probabilities, this court will treat that fact as established and all future decisions concerning M’s future will be based on that finding. Equally, if the local authority fails to prove any allegation, the court will disregard that allegation completely. In her written submissions on behalf of the local authority, Miss Bretherton contended that the court should apply the principle that
‘the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’
This principle, originally stated by Ungoed-Thomas J in Re Dellows Will Trust 1 WLR 451, was at one time applied by the courts considering allegations of child abuse in family proceedings under the Children Act 1989. In Re B, however, the House of Lords emphatically rejected that approach. Baroness Hale of Richmond, with whose judgment the other four Law Lords agreed, having analysed the case law, stated at paragraphs 70 to 72:
‘70 I would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s.31(2) or the welfare considerations of the 1989 Act is the simple balance of probabilities – neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant in deciding where the truth lies.
71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted or he may find himself still at liberty to maltreat this or other children in the future.
72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.’
In my judgment, the same approach must surely apply in the Court of Protection where the court is carrying out a similar exercise in determining the facts upon which to base decisions as to the best interests of an incapacitated adult.
85. Thirdly, findings of fact in these cases must be based on evidence. As Munby J (as he then was) observed in Re A (A Child: Fact-finding hearing: speculation)  EWCA Civ 12:
‘It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation.’
86. Fourth, the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President, observed in Re T  EWCA Civ 458,  2 FLR 838, at paragraph 33:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”
87. Fifth, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the experts are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence: A County Council v. K, D and L  EWHC 144 Fam,  1 FLR 851 per Charles J.
88. Sixth, in assessing the expert evidence, which involves a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, one important consideration – and of particular relevance in this case – is that the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others – see the observations of Eleanor King J in Re S  EWHC 2115 Fam.
89. Seventh, the evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and impressions it forms of them – see Re W and another (Non-accidental injury)  FCR 346.
90. Eighth, it is not uncommon for witnesses in these cases to tell lies, both before and during the hearing. The court must be careful to bear in mind that a witness may lie for many reasons – such as shame, misplaced loyalty, panic, fear and distress – and the fact that a witness has lied about some matters does not mean that he or she has lied about everything – see R v. Lucas  QB 720. The assessment of the truthfulness is an important part of my function in this case”.
This was a factually dense case with 35 lever arch files of evidence and 32 witnesses giving oral evidence. It was further complicated (and the case substantially lengthened) by the fact that E (M’s mother) was acting in person. As he drily noted:
“One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy.”
Despite those factors, Baker J applied the principles set out above to make succinct findings of fact (see paragraph 253 quoted above). He set out in detail his assessment of each of the witnesses and the evidence as a whole in a manner which is useful and informative generally as an approach to evidence in such cases. Notably, he did not shy away from a judgment which was highly critical of E whilst acknowledging in the last paragraph of his judgment (paragraph 254) that E and A (M’s mother and father) would have an enormous amount to offer their son if they “could work in collaboration with the local authority and other professionals in M’s best interests.”