Judge: HHJ Lazarus
Citation:  EWFC B65
This case concerned a wide range of issues in the context of family proceedings which had gone badly wrong, of which for present purposes the most relevant is the issue of litigation capacity. HHJ Lazarus took the opportunity to conduct a detailed review of how this issue should be considered and approach. She noted that the presumption of capacity was not included in the MCA to obviate examination of whether a party to proceedings lacked capacity, and that it could not have been Parliament’s intention to place a vulnerable person in danger of their lack of capacity being overlooked at the expense of their rights by a slack reliance on the presumption. The judge considered the relevant guidance and caselaw and noted that while it was usually the case that medical evidence as to incapacity would be required, if it was not possible to obtain an assessment (for example because the party refused to participate), then the court would have to do the best it could on the evidence available to it:
In the particular case, there had been a failure to assess or determine the issue of the mother’s capacity to conduct the proceedings despite her known personality disorder and alcohol misuse, which had led ultimately to the wrong decisions being made for the child.
Having rehearsed the case-law, which she correctly identified as containing some internal tensions, HHJ Lazarus set out what she considered to be obviously impermissible steps that could be found from those cases, namely:
Although made in the context of family proceedings, the observations of HHJ Lazarus are of wider application, in any proceedings where it becomes clear that there may be an issue as to one party’s capacity to conduct them. At that point, the court is into difficult territory, trying to navigate a path which secures competing rights. Those rights are, importantly, competing from the perspective of the person concerned, including balancing the right not to be deprived of legal capacity without a proper process against the right not to have substantive decisions taken in proceedings they cannot, in truth, conduct. The observations made by HHJ Lazarus are useful in identifying what steps cannot be taken at that stage, even if they leave open the question of what can be done.