Mental Capacity Case

A County Council v (1) AB (2) JB (3) SB

HHJ Mark Rogers


In the course of welfare proceedings involving a young man, AB, a fact-finding hearing was listed to determine serious allegations against his parents, and the question arose of whether, and how, he was to participate in the hearing.   The key issues for HHJ Mark Rogers to determine were framed by Counsel for AB thus:

  1. whether the decision as to whether P in proceedings in the Court of Protection should attend Court is a decision for the Litigation Friend as part of the conduct of proceedings or a best interest determination for the Court;
  2. whether the decision as to whether P in such proceedings gives evidence is a decision for the Litigation Friend as part of his conduct of the proceedings or a best interest determination of the Court;
  3. what the test of competence in Court of Protection proceedings is;
  4. whether AB is competent to give evidence according to that test;
  5. if the answer to (a) is 'the Court' whether it is in AB's best interests to attend Court and meet the Judge, although it seems to be agreed that such a meeting would be appropriate;
  6. if the answer to (b) is 'the Court' whether it is in AB's best interests to give evidence.
The Official Solicitor, on behalf of AB, contended that the key decision-maker in respect of P's active participation in the case is the Litigation Friend, with the Court having no or only a residual duty to overrule.

A further question arose as to whether or how AB should be allowed to participate, whether by attendance or by meeting the Judge, by presence in the court room or via a link, or offering direct oral input into the proceedings. As the judge noted, the use of the term "oral input" as there was an issue to whether what AB says is truly evidence. The Local Authority and the parents all opposed AB giving evidence or addressing the Court other than in an informal meeting with the judge. The parents opposed AB's attendance at Court and the Local Authority had some reservations although would support practical arrangements so long as they did not draw upon Local Authority funding or resources to any significant extent.

As regards the question of who should decide whether P should attend court, HHJ Rogers was clear (at para 49) that:

  • the Litigation Friend has a pivotal role in the conduct of the litigation and should not be supervised or micro-managed by the Court;
  • the Court nevertheless retains the ultimate power to dismiss a Litigation Friend;
  • it follows in principle that a Litigation Friend can decide whether P attends a hearing and tries to participate;
  • the Court has no general power under the Rules or case management powers to exclude P. Good practice suggests that a constructive dialogue between the Litigation Friend and the Court will be helpful and almost always will achieve practical consensus;

As regards the question of the test for competence to give evidence in the Court of Protection, HHJ Mark Rogers held that:

  • the Court of Protection is governed by civil rules of procedure and evidence albeit that specific Rules in the Court of Protection have been made. As it is a dynamic jurisdiction it has immense flexibility. Whilst there are helpful parallels to be drawn between the approach in Children Act proceedings and Criminal proceedings I am not prepared to import Section 53 [Youth Justice and Criminal Evidence Act 1999] into this jurisdiction; that is in the end a matter for Parliament;
  • the key provision however remains there already, namely, Rule 95(e), and the Court's ability to have information provided by P is wide and flexible

Importantly, although HHJ Mark Rogers accepted:

  1. […] the reality is that AB has severe disadvantages and his ability to give clear and reliable answers is limited in the view of the experts although it could be said that Ms Dart is more nuanced. However, I do not accept that I am bound to accept the expert view at this stage and in effect abdicate the judicial role or at least subjugate it. It is highly likely that the expert view will prevail, but not even to attempt to give AB an opportunity to contribute even to the fact finding phase is in my judgment too restrictive. The fact that he is almost certainly not competent to give evidence is no reason not to seek with appropriate help to elicit 'information' from him via a skilled intermediary. It may well be that the net result will quickly be apparent that his information is too unclear or lacks probative value and so the exercise can gently be curtailed. In other words, using Rule 95(e) the Court may admit the information but there is no guarantee that it would accept or act upon it. If the Official Solicitor tenders AB to give 'information' I do not accept I have a general power to stop him or that a specific permission arises; it is in my judgment simply an application of Rule 95(e). Of course even if this exercise proves fruitless the position may be different at the best interests stage because it is certainly clear that AB has communicated his views as to the future.
  2. Accordingly, on the question of his attendance and the provision of evidence or information, I take the view that the Litigation Friend has generally an unrestricted power to conduct the proceedings albeit subject to the Rules and that the Court's powers to intervene or overrule the Litigation Friend are limited to extremities. Rather than create a general case management power, I prefer to characterise the Court's role as dealing with specific best interests decisions as they arise, and they do arise in many different circumstances.
On the facts of the case, HHJ Mark Rogers held that there was no best interest declaration that needs to be made to prevent P's participation; that P should attend and should attempt to participate; and that he can be tendered for questioning, very probably in the context of a Rule 95(e) exercise, which can be curtailed if necessary, even at an early stage.   As he noted "[s]imply to regard AB's contribution as forensically worthless without even hearing him is not something I can contemplate."

HHJ Mark Rogers concluded by noting recent case-law from both the Court of Protection and care proceedings such as the Wye Valley case and Re E [2016] EWCA Civ 473 as exemplifying the modern approach to the issue of participation in its most broad sense.


[By way of guest commentary upon the case and as a case study as to how to facilitate the participation of P in proceedings, we reproduce below, with permission, a modified version of the guest post that recently appeared on the Court of Protection Handbook website by Nicola Mackintosh QC (Hon) who acted for P by his litigation friend the Official Solicitor.[1]]

There are a number of ways in which ways in which practice needs to change within the Court of Protection to ensure that the court and representation process is looked at through P's eyes, rather than just adding P as an afterthought. Whilst the COPR and accompanying Practice Directions may well need to be amended in due course to secure this goal, creative steps are already possible within the framework of the COPR as they stand.   As a case study, we set out here those which were implemented to facilitate P's participation in a fact-finding hearing listed to determine allegations of abuse at the hands of his parents.

In the light of the judgment set out above the practical arrangements which had already been made were implemented. These steps show clearly how vital it is when securing and enhancing P's participation that each and every detail of the arrangements is planned from P's perspective and not simply limited to a meeting with the judge (important as that is).  This involved the following:

  1. P's lawyers meeting with P and securing appropriate Speech and Language Therapy support to prepare for the hearing by exploring concepts such as the following:
  1. 'what is happening in court, what is a case, why is your case in court, what is the case about'?
  2. 'what is a judge, what will the judge be deciding, why is it important to you'
  3. 'what will happen at the hearing, who will speak when, how long will it take etc.'
  4. 'how can I tell my story'?
  1. Considering which court location would best meet the needs of the case, taking into account all physical facilities, travel time for P and others etc.
  2. As the court's video facilities did not allow for P to be in an adjacent room viewing the proceedings from a distance so as to minimise distress, an alternative facility was found nearby which could provide a video link to the court. Arrangements were made for this between the IT specialists of the court and the other facility, and for the video link to be tested in advance to ensure it was working. In the event this facility was not used as P remained in court throughout the proceedings.
  3. (With consent) taking photographs of the judge, the courtroom and all the lawyers involved in the proceedings to explain to P the physical location and the identity of all involved in advance of the hearing.
  4. Before the hearing arranging a visit by P to the courtroom when the court was not sitting to see the layout, and also to meet the court clerk who was to be allocated to the hearing days.
  5. Deciding where it was best for P to sit in his wheelchair in the courtroom to listen to the proceedings, taking into account the position of other parties and 'lines of sight' with others.
  6. Arranging for P to be supported by staff regarding personal care, and ensuring mobile hoists were provided for P in both locations for care.
  7. Ensuring that there was enough physical space in the court complex so that P had a separate room just next to the courtroom, with a fan (P being a wheelchair user had reduced temperature control).
The first day of the hearing was listed as a Ground Rules Hearing, as provided for in the Advocates' Gateway. On the first day, as planned, the judge met with P in a side room next to the courtroom. P's solicitor was present, and P's SALT also assisted by explaining to the judge that P was able to respond 'yes, no, happy and sad' through different Makaton signs. P showed the judge how he communicated each of these expressions, enabling the judge better to understand how to interpret P's wishes and reactions.

Although the fact finding hearing was listed for 9 days, after the initial part of the first day of the hearing (P being present in court with his carers and intermediary) the parties set out their updated positions which then resulted in negotiations to see if a settlement could be reached without the need for the fact finding process. This lasted the first day and the terms of an order were agreed on the second day of the hearing. P was present during all discussions between lawyers and the court, and communicated his wish to continue to be involved and to listen to the proceedings. Between updates to the court he was permitted by the judge to remain in the courtroom with his support workers, watching a DVD. This reduced the need for him to be taken in and out of the courtroom, waiting for long periods in a small stuffy side room, and was invaluable. This could not have been arranged without the court's co-operation and flexibility of the court staff.

Once agreement had been reached in principle between the parties as to the core issues in the case, it was considered vital for P's wish to 'tell his story' to be facilitated. A very careful consideration of the issues raised, and the broad themes set out in the fact finding schedule was undertaken. Questions of P were drafted by P's legal representatives with the assistance of P's SALT and intermediary. As P's communication was limited to responses such as 'yes, no' etc, it was necessary for leading questions to be posed however these were broken down into questions so that the leading element was minimised. Examples of questions included 'Do you want to talk about when you were living at home?', 'How did you feel when you were living at home?', When you were living at home did anyone do X to you?', and if the answer was affirmative, 'How did it make you feel?' These questions were devised to ensure that P's broad wishes were communicated to the court notwithstanding the agreement between the parties, so that P felt that he had been listened to by the parties and the judge, but avoiding detailed questioning on the fact finding schedule which eventually proved to be unnecessary.

The question and answer sessions were broken down into more than one session to allow P to rest and refocus. With agreement they were filmed on a mobile phone and then played to the judge in his chambers. They were then also played to the other parties. This flexibility avoided all the delays and organisational problems associated with using the court video facilities.By the end of the second day, agreement had been reached in the form of a detailed order. The judge held a further short hearing and again explained the outcome to P, coming into the courtroom and sitting by P to confirm what was going to happen. P was repositioned in his wheelchair to be solely in the line of sight of the judge and not the other parties.Although this case required considerable practical arrangements to be made, forward planning was vital in ensuring that all elements of P's participation was effective in meeting the goal of P's enhanced involvement in the proceedings. Each case will be as different as each P is different. The more that proceedings in the Court of Protection are attended by P, or P's participation is secured by other creative means, the more the judiciary, Court staff, lawyers and all the parties will become accustomed to putting P at the centre of the process, and making appropriate arrangements. This is the beginning of a new era in the Court of Protection. This is only right given the role of the Court in making decisions which are of such fundamental importance to P's life.

[1] It will also appear in the second edition of the Court of Protection Handbook, due out in November. Recognising the importance of this area, members of the Court of Protection team in Chambers have also recently had specialist training in arrangements for vulnerable witnesses giving evidence.