Judge: Sir James Munby P
Citation:  EWCOP 78
Sir James Munby P has given important guidance as to when (and when not) to hold a fact-finding hearing.
The context of the decision is one that is – sadly – not altogether unfamiliar. It concerned a young woman, AG, with a moderate learning disability and autism spectrum disorder. She alternated between living in her own property and living with her mother, DG, in respect of whom there were a number of allegations by AG (and others), but in respect of whom no conclusive findings had been reached in the context of safeguarding investigations. In November 2011, after a number of allegations relating to both AG and her mother the local authority with responsibility for AG moved her into a placement at a care home (no prior order having been sought from the Court of Protection). The local authority applied shortly after the move to the Court of Protection for declarations and decisions as to AG’s welfare and best interests. By the time of the final hearing, DG had moved into semi-independent living. A final order was made granting the relief sought by the local authority, including supervision of contact between AG and her mother.
DG appealed on four grounds, the major thrust being that the judge, HHJ Rogers, failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings.
In relation to this ground, Sir James Munby P expressly endorsed the pre-MCA 2005 decision of Wall J (as he then was) in Re S (Adult’s Lack of Capacity: Care and Residence)  EWHC 1909 (Fam), in which he had emphasised that unlike in the case of care proceedings in relation to a child, there is no requirement to establish ‘threshold’ in the case of proceedings in relation to an adult, whether the proceedings are brought in the High Court under the inherent jurisdiction or, as here, in the Court of Protection, such that the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act 1989, “raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.” Sir James Munby P expressly endorsed the answer given by Wall J at paragraphs 18 and 21 of that decision, namely that:
“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified in para  would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.
21 Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”
Sir James Munby P held that the decisions of McFarlane J in A County Council v DP, RS, BS (By the Children’s Guardian)  EWHC 1593 (Fam) and in Re W (Care Proceedings)  EWHC 1118 (Fam), and the decision of Cobb J in LBX v TT (By the Official Solicitor as her Litigation Friend), MJ, WT, LT  EWCOP 24, had to be read in light of the “overarching principles” identified by Wall J.
On the facts of the instant case and, in particular, given that HHJ Rogers was careful to spell out the consequences of there having been no fact finding hearing (in particular that he did not “hold them in the background as it were by way of a suspicion lurking over DG”), Sir James Munby P had little hesitation in dismissing the appeal.
The case is also of some note for confirming that where there is no new evidence (whether by way of expert evidence or observable events), there is no need for a judge to return to a determination of capacity made (in the present case) over a year previously before making a final order: see paragraph 17.
Finally, and returning to a consistent theme, Sir James Munby P noted that:
“56. Ms Khalique submits, and I am inclined to agree, that the local authority acted unlawfully in removing AG from OG in November 2011 and placing her at HH without having first obtained judicial sanction. Local authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation. Local authorities do not themselves have power to do this.
Alex is somewhat reassured by this case because it represents endorsement of precisely the approach identified in the Court of Protection Handbook (which provides a neat opportunity to highlight that a revised first edition including the updated rules is now available).
More seriously, the approach set out by the President undoubtedly represents the correct way in which to proceed in cases where the key focus must be upon P and the factual basis upon which the court is being invited to make decisions about P. Only where it is necessary to make findings of fact in order to make those decisions should the court embark upon such a fact-finding procedure.
The only caveat that we would note is that whilst it is undoubtedly correct that the court does not apply a threshold akin to s.31 Children Act 1989, it is a very salutary exercise for local authorities considering making applications to the Court of Protection for what are the functional equivalent of adult care orders to proceed as if it does.
In other words, applying the same forensic rigour as would be applied were a care order to be sought in respect of a child will – we suggest – ensure that elementary steps are taken to ensure that there is proper, substantiated, evidence upon which to seek orders which will have the effect of interfering dramatically with the rights of P and (frequently) those close to them. As Hedley J recognised in LBB v JM, BK and CM  COPLR Con Vol 779:
“7. The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court’s jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified.
In other words, if local authorities (or indeed other public authorities) proceed on the basis that they need to be prepared – if needs be – to establish any and allegations made as to the risks faced by P (whether from others or from themselves), many of the car-crashes recently seen in the Court of Protection can be avoided.