Mental Capacity Case

A Local Authority v M, F, A and B

Elizabeth Isaacs QC

These family proceedings considered whether two young children should be placed in long-term foster care or for adoption. But we cover it because useful lessons were identified which can be carried across to ensuring effective participation in Court of Protection proceedings. The mother ('M') was profoundly deaf and had previously been assessed as having a learning disability, with extremely low cognitive ability, and lacking capacity to conduct care proceedings. However, subsequent expert evidence established that this was wrong on both counts. Moreover, there was no evidence that the professionals conducting the pre-birth assessment of M's parenting ability had the skills suitable to her needs as a deaf parent.


The judgment provides guidance on the type of reasonable adjustments to be considered where a party to proceedings is deaf. The judge observed that deafness was a disability for Equality Act 2010 purposes, section 20 of which requires public authorities (including the courts) to make reasonable adjustments to provisions, criteria or practices that place the disabled person at a substantial disadvantage. This can include providing information in an accessible format and securing effective and fair participation in proceedings, as expanded upon in the Equal Treatment Bench Book. In this case, the mother was supported by a lip-speaker and an intermediary, there were regular breaks, and the judge prepared a simplified version of the judgment which was read aloud to the mother with their assistance.


The main lessons learnt, potentially applicable to the Court of Protection are:


  1. Professionals working with a deaf person must be aware of their obligations under the Equality Act 2010 and the need for reasonable adjustments. They (including those supervising contact arrangements) should receive adequate and timely deaf awareness training, to include information about how to provide information in a clear and appropriate way to a deaf person who also has communication difficulties.
  2. The person's needs must be identified, with expert advice as necessary, and corresponding support be made available, provided by professionals with suitable skills. A cognitive and capacity assessment undertaken by a suitable specialist at the outset of proceedings can prove instrumental, both in terms of determining the person's mental capacity but also for reasonable adjustment purposes.



We commend the relevant Advocate's Gateway Toolkit which informed the judgment. More broadly, the court's Equal Treatment Bench Book is an incredibly helpful resource when considering how to promote a person's participation in proceedings (whether that is P or a party to proceedings). Appendix B provides useful examples of reasonable adjustments for a whole range of protected characteristics which COP practitioners can draw from to promote participation.


We also commend the post about this case by Abigail Bond on the Transparency Project, which also links to a recent but more unusual care case involving a deaf parent, see A Local Authority v X & others [2020] EWFC 36, where the mother had neither litigation capacity nor the capacity to give evidence in court but was assisted to participate as fully as possible in the proceedings by a bespoke DVD 'interview' process devised and undertaken by Dr Austen.