Re AB

Summary: This judgment, delivered some time ago, but only very recently made publicly available, deals with a short but important point as to whether (and upon what basis) the CoP can dispense with service upon the father of the adult upon whose behalf an application was made to authorise a statutory will.

AB, a young adult, suffered a brain injury whilst a teenager, as a result of which she suffered a severe brain injury and ultimately recovered substantial damages. Her property and affairs were managed by two solicitors, appointed jointly and severally as property and affairs deputies, one of whom applied for execution of a statutory will be authorised by the CoP on AB's behalf under s.18(1)(i) MCA 2005.

AB lived with her mother, stepfather and step brother. The whereabouts of her father, PQ, was unknown. On the basis of the (at that point unchallenged) evidence before the Court there was a substantial history of violence by PQ towards CD prior to CD leaving the family home, and PQ had at one stage thereafter abducted AB. CD and AB had not seen PQ for many years. PQ has not paid maintenance for AB and CD has not claimed maintenance from him. CD had not sought contact with AB and did not know where PQ was living now or indeed whether he was alive. It was known that PQ had two other daughters, RS and TS, by a different mother.

AB told the Official Solicitor's representative that her mother had left her birth father and that her father stopped turning up for contact at a contact centre. She said that she did not want to see him or have anything to do with him; he had the opportunity to make contact with her and chose not to do so. She further said that she not want her father to get anything from her estate and he did not deserve anything.

The effect of the proposed will advanced for endorsement by the CoP was to remove PQ's entitlement to half of AB's estate under the rules on intestacy, his share being worth about £750,000 at the present time. If PQ should predecease AB, then his biological children who are AB's half-siblings would suffer a loss of entitlement under the intestacy.

The evidence before the CoP was not conclusive as to whether AB had testamentary capacity, and District Judge Batten directed that a further assessment of AB's testamentary capacity be filed. She was, however, satisfied that she had power to make interim orders and give directions because the evidence was sufficient to pass the s.48 MCA 2005 threshold.

District Judge Batten had to decide whether to grant the Applicant's application to dispense with service of the application on PQ and on RS and TS (and any others who are the biological children of PQ). In summary, the Applicant submitted that the decision was one falling within the scope of s.1(5) MCA 2005, such that it was a decision to be taken in AB's best interests; the Official Solicitor submitted that it was not, but that it should be taken with regard to the overriding objective contained in COPR r3, and the engagement of the rights of PQ (and the half-siblings) under Articles 6 and 8 ECHR as well as Article 1 Protocol 1 to the ECHR.

District Judge Batten held that she was not making a best interests decision when directing that a party not be served with an application. Rather:

"63. …This decision is one made by a judge in the exercise of powers given by the Court of Protection Rules. It is not an act done or a decision made on behalf of P. The principles of the Mental Capacity Act 2005 cannot be strictly applied to such a decision. For example the principle that a person is not to be regarded as lacking capacity because he does something unwise is clearly not a principle which can be applied to a decision by a judge made pursuant to the Court of Protection Rules. The principles set the context in which the case before the Court of Protection proceeds but do not strictly govern its case management or other decisions under the Court of Protection Rules 2007. In any event the overriding objective refers explicitly to the way in which the court must have regard to P; dealing with a case justly includes so far as practicable ensuring that P's interests and position are properly considered (Rule 3(3)(b)). The case of MN while not strictly analogous, supports this conclusion.

64. Article 6 of the European Convention on Human Rights entitles PQ to a fair hearing. This is not a qualified right. To direct that the application not be served on PQ is to interfere with his rights under Article 6. PQ will be excluded from the knowledge that his statutory entitlement to benefit from AB's estate has been removed and he will be prevented from putting forward his own evidence in response to the allegations made on behalf of the applicant and his submissions as to why he should benefit from AB's estate and to what extent.

65. Article 8 gives AB the right to respect for her privacy and family life. Article 8 is a qualified right and allows interference with the right to respect for privacy and family life in circumstances where it is necessary for the protection of the rights and freedoms of others, which includes the right of PQ to a fair trial.

66. If PQ is served with the application and as a result acts as CD fears in a threatening and harassing manner, AB's privacy and that of CD, DD and ED will be invaded and their right to family life interfered with. The court must be satisfied on the balance of probabilities that this is likely to happen and that the outcome for AB and CD, DD and ED as her family is likely to be so serious that it justifies an interference with PQ's rights under Article 6. I must make that judgment without seeing the evidence that PQ may seek to adduce to challenge the factual evidence and submissions of the Applicant.

67. Article 8 also applies to the right of PQ to a family life with AB. His decision to cease contact with AB when she was still an infant and failure to maintain any kind of parental relationship with her since that time are relevant matters to be taken into account by the court in considering how far to give effect to PQ's rights in this regard.

68. Article 1 of the First Protocol to the Human Rights Act protects the right of persons to the peaceful enjoyment of their possessions. It is beyond my remit to provide a definitive answer to the issue of whether an expectation of inheritance under the laws applying to intestacy constitutes a possession for the purpose of Article 1.

69. The cases of Re HMF and Re B were decided before the Mental Capacity Act 2005 came into effect and are thus not binding on this court. They dealt with a comparable issue, that of notification of applications under the Rules which then applied to proceedings in the old Court of Protection, and thus are of some assistance. To the best of my knowledge there is no reported case on this issue since the inception of the Mental Capacity Act 2005. According to those cases, there needs to be a compelling argument and exceptional circumstances to justify not serving an application on a person who will be materially affected by it. Both judgments were given before the Human Rights Act 1998 was implemented. Article 6 serves to reinforce the principle that parties to be materially affected by an order of the court should be notified of or served with proceedings and given an opportunity to be heard unless there are exceptional circumstances."

Having outlined the relevant elements of the overriding objective, and then the factors for and against the order sought by the Applicant, District Judge Batten concluded that, on a fine balance, the factors in favour of notifying PQ outweighed those against notifying him. As she held (at paragraph 78): "The allegations against him are significant and serious; they are partly but far from fully supported by corroborative evidence. However I have not been able to hear PQ's side of the story which may shine a different light on the events described. Weighing all the factors in the balance I have come to the conclusion that I am not satisfied that the circumstances of this case are so exceptional or that there are sufficiently compelling reasons that I must direct that service of the application on PQ and his children should be dispensed with and I will not grant the Applicant's application."

District Judge Batten did not direct that PQ and his children be served with the application papers, but rather that they be notified of the application and, if necessary, was prepared to direct that any documents sent to the Respondents must be redacted to remove any reference to AB's address or which may assist PQ in tracing AB (for example the name and address of her general practitioner). She noted that, even without a fact-finding exercise, there were some salient factors which were effective incontrovertible, and which are likely to be given very significant weight when the court makes its final decision. She considered these factors should be brought to PQ's attention when he is notified of the application. They were that (i) PQ had not seen AB since the contact proceedings were in progress; AB suffered a severe head injury over ten years after she last had contact with PQ; AB's estate was a very substantial one solely because of the personal injury damages she has received as a result of the injury; AB's mother had devoted herself to AB's care; AB's funds were required for her care throughout her life and were likely to be exhausted by the date of her death.

District Judge Batten then concluded with some important general observations:

"82. It may be thought that the circumstances of AB's case are very rare. In fact that is not the case. The Court of Protection deals several times a year with applications for permission to dispense with service of an application for approval of a statutory will, declaration of trust or the making of gifts on a person who is a respondent to be served according to practice direction 9F. Typically such a respondent is a family member (often an absent father) who is no longer in contact with P and those caring for P, and/or who has a poor relationship with them. Frequently such applications involve large sums of money. I have been asked to give a written judgment in this application to provide some guidance as to how the court is likely to deal with such an application.

83. Each case must be dealt with in the light of its own particular facts and the judge will apply the overriding objective in the light of those facts. I am well aware that other judges may take a different view from the view I have expressed in this judgment.

84. In my judgment permission to dispense with service or notification of an application altogether should only be made in exceptional circumstances, where there are compelling reasons for doing so. Otherwise the interests of justice will not be served and the court will not be seen to be acting fairly towards all parties.

85. The conduct of the Respondent may justify such an order: for example if he has been convicted of an offence of physical or sexual abuse of P, or if P's funds derive from a Criminal Injuries Compensation award where the Respondent was the assailant.

86. In matters concerning the Respondent's conduct, the court has to take a decision to dispense with service of the application while only having available evidence from the party seeking the order to dispense. The application is more likely to be successful if supported by objective evidence than unsupported allegations. The court is more likely to be persuaded of the strength of the case if there is independent and reliable corroborative evidence as to the past behaviour of the Respondent, whether in the form of criminal convictions, court orders, CAFCASS, or other reports by professionals, or other similar evidence.

87. The court may be willing to make an order to dispense with service of the application where the value of the financial benefit lost to the Respondent by the making of the order is not significant. Value should be considered both in absolute terms and relative to the Respondent's means. (A legacy of £10,000 may be of considerable significance to an elderly person on a low income but less important to a person of substantial wealth).

88. The court may also reach the conclusion, usually after enquiries have been made, that the cost to P's estate or to the parties, and the delay caused in concluding the application, of proceeding with service of an individual or class of Respondents (usually where tracing of potential Respondents will be necessary) is disproportionate relative to the value to the Respondents of the benefit they will lose by the proposed final order.

89. These examples are not intended to be exhaustive or to limit the circumstances in which judges may make an order to dispense with service of an application on a Respondent.

90. This judgment should also not be taken to apply to service of an application for a holding will, where there is acute urgency in the face of P's likely imminent death. The cases of In re Davey [1981] WLR p164 and In the matter of R [2003] WTLR 1051, although decided before the Mental Capacity Act 2005 came into force are of assistance as to service/notification of such applications."

Comment: Whilst strictly not of precedent value, this is nonetheless an important judgment setting out a number of principles that we would suggest are incontrovertible as to the principles that the Court will apply when considering the (rightly) exceptional step of granting permission to dispense with service upon a Respondent to a statutory will application. We would also respectfully suggest that District Judge Batten was clearly correct to hold that her decision was not one falling within the scope of s.1(5) MCA 2005 - to this end, the judgment also stands as a useful further confirmation of the fact that not all steps taken by the Court of Protection can be said to be 'taken for or on behalf of P.'