Mental Capacity Case

London Borough of Southwark v P, AA and South London and Maudsley NHS Foundation Trust

Lieven J


The saga of Re P (Discharge of a Party) [2021] EWCA Civ 512, reported in previous issues, continued, following the Court of Appeal's overturning the decision of Hayden J to discharge AA, mother of P, from proceedings relating to P without notice or an application being made to do so.

Following the Court of Appeal decision on 16 April 2021, AA was reinstated as a party in proceedings.    In a subsequent judgment as to costs, the Court of Appeal considered that none of the other parties in the case had been unreasonable in arguing that Hayden J's order should be maintained – an unsurprising finding where this judgment had been handed down only a few days prior.

The substantive question of what should happen in relation to AA was then sent to Lieven J, and twice adjourned, once tragically due to the death of AA's counsel, Timothy Nesbitt QC.

The history of the case is summarised in the Court of Appeal decision; in brief, the application related to P, now 19 years old, who had diagnoses of atypical anorexia, PTSD and selective mutism. Concerns had been raised by the local authority that P had been sexually assaulted by a visitor to the family home, where she had lived with her mother, AA. By the summer of 2019, P's anorexia was quite severe, and she had a BMI of 10.9; it was also noted that she was unkempt and in a poor state of hygiene.

Welfare proceedings had commenced in June 2019 before Hayden J, who made immediate orders that P should be removed from the family home, and that her direct contact with AA was to be supervised. Proceedings had continued for over a year while additional work by way of trauma therapy was conducted with P, and further assessments were undertaken. Lieven J summarises a turning point in proceedings at paragraph 7-8:

  1. In October 2020, P revealed for the first time that she had been subject to emotional abuse by AA through various WhatsApp messages. She also disclosed that contrary to what she and her family had previously said, AA had been aware of the abuse by the alleged abuser, SB, but had taken no action. She also alleged, for the first time, that she had been physically and sexually abused by AA's new partner and father of P's half-sister who was born in October 2020.
  2. In a material departure from P's previous statements, P indicated in late October 2020 that she no longer wished to live with her mother or have any contact with her mother…
At the next hearing on 3 November 2020, Hayden J discharged AA as a party to proceedings and ordered all contact between P and AA should end. AA successfully appealed that order in the Court of Appeal, and was again a party to proceedings when the case came before Lieven J.

The court summarised the material which had originally been withheld from AA, and had been the subject of a 'gist' document. AA had since been given some of the original material, but was still relying on the gist document in part:

(1) There were messages between AA and P which indicated that:

(a) P informed AA of abuse by AA's new partner but NM disbelieved her;

(b) P believed that [P's] baby was at risk of abuse by AA's new partner;

(c) P was raped and physically abused by SB. She informed AA that abuse was occurring and believed AA took no action. AA was aware P had been assaulted by SB;

(d) AA told P not to disclose the abuse by SB or AA's new partner to anyone;

(e) AA threatened P that both she and the baby could be harmed if she did not speak to AA's new partner;

(f) AA continued to send P emotionally abusive messages after 10.12.20 until around the end of February 2021.

(2) There were messages from an anonymous source to P threatening her.

(3) There were exchanges between the treating team at SLAM, the Local Authority and police and updates from P's treating time at SLAM.  (Paragraph 10)

By the time of the hearing before Lieven J, AA was now aware of the information above, and P's wishes and feelings had been set out. P had been consistent in stating that she did not wish to live with AA, that she did not want any contact with AA or AA's partner, and that she did not want AA to be a party to proceedings. P had also texted her representatives that in April 2021 that if AA "gets back in as a party I'm not being involved, I don't see why she should as she's not very supportive of me as a person" (paragraph 13).   She continued: "you can tell the judge I wouldn't want to be part of proceedings if my Mum was a party, I wouldn't see the point in participating as I don't want a relationship with her and she doesn't want me living away from home (despite me turning 20 this year)" (paragraph 14).  In discussions with other professionals working with her, P noted that communications from AA, AA's partner and her extended family had been "abusive, threatening and deeply disturbing" (16). P's therapist had expressed concerns for P's welfare if AA became a party to proceedings, and considered it would harm her ability to engage in trauma therapy.

AA was clear that she wished to remain on as a party to proceedings, and to give evidence regarding P's best interests. Despite having filed a witness statement, AA did not provide evidence acknowledging or engaging with the abusive and concerning text messages P had disclosed.

Lieven J directed herself to the decision of the Court of Appeal, and the overriding objective, which included "ensuring P's interests and position" (22).  She noted that the Court of Appeal had stated that if there were 'exceptional' circumstances, the parties may apply to discharge AA as a party. However, Lieven J observed that:

  1. It is not clear to me, nor the advocates before me, where the reference to exceptional circumstances comes from. The Rules do not require any "exceptionality" before a party is discharged.
Lieven J therefore considered instead that the relevant principles were those in s.1(5) MCA 2005, looking also to Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, Wye Valley NHS Trust v B [2015] EWCOP 60 and Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26, and emphasising that the best interests test is considered from the perspective of the protected person, though the specific weigh given to P's wishes and feelings will vary on a case by case basis.

In considering balancing competing rights, Lieven J looked to London Borough of Redbridge v G [2014] EWCOP 1361. While noting that that case related to the Article 8 rights of a journalist, Lieven J considered the statement of principles was also applicable, citing the following passages from the judgment of Munby J in that case:

  1. Secondly, if for whatever reason, good or bad, reasonable or unreasonable, or if indeed for no reason at all, X does not wish to have anything to do with Y, then Y cannot impose himself on X by praying in aid his own Article 8 rights. For X can pray in aid, against Y, X's own Article 8 right to decide who is to be excluded from X's 'inner circle' and in that contest, if X is a competent adult, X's Article 8 rights must trump Y's. It necessarily follows from this that, absent any issue as to X's capacity or undue influence, X's refusal to associate with Y cannot give rise to any justiciable issue as between Y and X.
  1. Thirdly, if X lacks capacity, Y's Article 8 rights can no more trump X's rights than if X had capacity. Y cannot impose himself on X by praying in aid his own Article 8rights. Y's Article 8 rights have to be weighed and assessed in the balance against X's Article 8 rights. If Y's rights and X's rights conflict, then both domestic law and the Strasbourg jurisprudence require the conflict to be resolved by reference to X's best interests. X's best interests are determinative. As I said in Re S, para 45, referring to what Sedley LJ had said in In re F (Adult: Court's Jurisdiction) [2001] Fam 38, 57:

"In the final analysis, as Sedley LJ put the point, it is the mentally incapacitated adult's welfare which must remain throughout the single issue (emphasis added). The court's concern must be with his safety and welfare.""

Looking to Re F (A Child Adjournment) [2021] EWCA Civ 469 by analogy, AA argued that the best interests test was not the correct one to apply in case management decisions.  Lieven J, however, considered that the analogy was not entirely apt:

…. In proceedings under the Children Act 1989 the parent has a right to be a party, not least because s/he has in law parental responsibility. However, in the Court of Protection the parent of an adult child has no rights to party status and as such the legal analysis is different. The legal relationship between a minor child and his/her parents is quite different from that of a person over 18 and their parents. Having said that, it is obvious that justice to any third party is a highly important consideration.

Considering the judgment of Cobb J in KK v Leeds City Council [2020] EWCOP 64, Lieven J considered that potential harm to P of a person being joined as a party or having evidence disclosed was likely to be a relevant consideration, summarising her approach at paragraph 32-33 thus:

32…the whole purpose of the MCA is to protect and promote the best interests of P. Where the interests of P's parents, here AA, conflict with P's best interests then P's interests must take precedence. There is a real danger in this litigation of that fundamental principle being forgotten.


  1. However, it would be vanishingly rare in a Court of Protection case for justice to a third party to result in a decision which was contrary to the best interests of P. It is critical to be clear where one starts from in the analysis under the MCA. There are always two questions under that Act; does P have capacity and if not, what is in P's best interests? Critically, P is an adult and has the rights that go with being an adult, subject to the loss of capacity. As Hayden J put it in the Barnsleycase the "whole focus of the MCA is to reassert P's autonomy and his or her right to take their own decisions." The focus in Children Act proceedings is entirely different. The principles underlying the two statutory schemes are not analogous, and they should not therefore be conflated.
All parties except for AA took the clear position that it was in P's best interests for AA to be removed as a party. The Official Solicitor emphasised P's strong wishes to this effect, and the court noted their consistency over a period of approximately 8 months.

AA argued that she had Article 8 rights in respect of P, and had a right to be a party.  Lieven J did not accept this argument:

Since October 2020, P has made it entirely clear that she does not want contact with her mother. In my view whatever Article 8 rights AA had in relation to P in respect of the earlier evidence (which was considered by the Court of Appeal), the weight to be accorded to any such rights has significantly diminished in light of the further evidence. We now have a position where P has been living away from family home for at least 2 years and most importantly where P is now an adult, being no longer under the age of 18 and has expressed in the clearest way that she does not want to have contact or an ongoing relationship with her mother, who she says was complicit in her abuse. In my view, that assertion of her rights must cap and seriously diminish any Article 8 rights of her mother.

Lieven J similarly rejected arguments that AA had the right to respond to allegations made against her by P, with AA also noting that Hayden J's order discharging AA as a party appeared to have been made under the inherent jurisdiction rather than the MCA 2005.  Lieven J concluded that the original orders had been made under the MCA 2005, as it had been determined on an interim basis that P lacked capacity, and capacity was not to be revisited until P's therapy had been completed. The court thus proceeded on the basis that P lacked the material decision-making capacity.

Lieven J considered that it was "entirely open to AA to file evidence saying that she did not send the texts and to produce evidence to that effect" (paragraph 40).  She did  not consider that the fact of an ongoing criminal investigation into the texts would preclude her from producing evidence that she did not send them "if that is the true position." The court further could not "see any requirement of natural justice for her to be a party in order to refute the allegations. This is not a case where without being a party she does not know the substance of the allegations" (40).

Lieven J considered that by focusing on facilitating 'P's participation in proceedings' and having "at the forefront of my mind her best interests" (paragraph 41) the outcome of the application to discharge AA as a party was clear. "[T]o put the mother's rights before P would be to entirely subvert purposes of the Mental Capacity Act. Secondly, it is very clear from evidence from Ms Dawson and most importantly, Ms X that it would be contrary to P's best interests for her mother to be a party to these proceedings" (paragraph 42). The court considered that AA could file evidence relating to the texts and as to P's best interests, "albeit without knowing all the evidence before the court but in circumstances where the evidential position as to best interests and wishes and feelings is so clear, in my view AA should be removed as a party" (paragraph 44).


The case provides what appears to be an end to the saga, with AA having effectively all relevant information to hand, an application before the court and an opportunity to put her case, Lieven J reached the same conclusion as had Hayden J in November. The discussion is notable for several reasons, not least being what Lieven J identified as the interplay between consideration of P's welfare and best interests under the MCA 2005 and the case management question before the court.  The judgment is also interesting for its refutation of the suggestion by the Court of Appeal that the discharge of a party was 'exceptional,' with the court noting that no party was able to offer an argument that such a standard should be applied.