Judge: DJ Marin

Citation: [2011] EWHC 2244

Summary: This is a decision of District Judge Marin upon an application by a local authority for declaratory relief regarding an elderly lady’s residence and contact with one of her children. It merits note not for the substance of the decision, but rather for the approach taken by the District Judge to the question of whether it was necessary to hold a fact-finding hearing before making declarations as to contact between the elderly lady, GS, and her son, RS.

The relevant paragraphs of the judgment are as follows:

“30. There are many cases in the Court of Protection where large numbers of allegations are made by a care home, a local authority or a family member against another family member (usually a child as in this case) which relate to the family member’s conduct during visits to a care home or at home. The difficulty that is often faced by the court in these cases is whether or not a fact finding hearing is necessary in order to establish the veracity of the allegations first before the court proceeds to impose a final order in a case.
31. The obvious problem with fact finding hearings is that they can be lengthy, they eat up the court’s pressed resources and they are expensive not only because of legal costs but in terms of the cost of social workers and other professionals involved who need to attend court to give evidence. In this case, both judges who managed this case prior to the final hearing clearly took the view that no fact finding hearing was necessary presumably because they believed that the court would be able to make its own decision after hearing the evidence at the final hearing.
32. It should be said in RS’s favour that he has accepted some of the allegations such that I have taken the view in agreement with all the parties that there is no need for me to embark on a long fact finding exercise in respect of every event that is found in the papers. I believe this is a proportionate way of dealing with matters.
…[the Judge then recorded what RS had accepted]
35. Given these admissions I do not need to make any further investigation into the various allegations made against RS because the admissions on their own in my view demonstrate that the concerns raised by WCC about RS’ behaviour are genuine.”

Comment: The necessity for and scope of fact-finding hearings is a perennial difficulty for practitioners before the Court of Protection. There are decisions which suggest which one is always required before the Court makes a decision which involves a serious intervention in P’s family life where the factual basis for that intervention is contested – see, for instance, LBB v JM, BK and CM. However, the authors have collective experience of numerous cases, including this one, in which what might be said to be a more pragmatic approach is taken. This case represents a useful, and rare, example of the reasoning process being recorded in a judgment approved for publication (even if, strictly, it can have no precedent value given that it was determined by a District Judge).

CategoryBest interests - Contact, Practice and procedure - Fact finding Date


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