SW v (1) Nottingham City Council, and (2) JW

Summary

In this (complicated) case, Poole J dealt with an application to appeal from findings of fact made by HHJ Rogers (sitting in retirement).  

SW and JW had been married for over 29 years. SW was diagnosed with muscular dystrophy, was a long-time wheelchair user and now largely bedbound. JW was diagnosed with OCD and long-standing depression. They lived together in their own home until JW was admitted to hospital in July 2023 with a very serious leg infection. SW could not be left alone and was moved to a care home. On JW’s discharge from hospital, she was moved to the same care home. After some time living together in the same care home, the care home raised concerns about SW’s conduct, including his conduct towards JW which was thought to be controlling and coercive. The care home gave notice to SW and JW resulting in the local authority making an application to the Court of Protection.

The parties instructed a psychologist to report, amongst other things, on JW’s capacity in relation to contact. At the first meeting, the psychologist relayed the concerns and allegations to JW but she either did not accept them or she took responsibility herself for matters such as the failure to seek medical attention for her infections. The parties agreed that a fact finding hearing should be listed before further expert evidence on capacity could be sought. However, DJ Buss disagreed and held that a fact-finding hearing would generate excessive delay and was not necessary.

The local authority appealed. HHJ Rogers reversed the decision of DJ Buss not to hold a fact-finding hearing, and directed the local authority to set out a schedule of allegations upon which findings were sought. The schedule produced by the local authority ran to 20 pages. Poole J drew on experience in the family courts and gave the following guidance:

24. […] In family proceedings, the courts have considered how best to present allegations of fact on which a party seeks findings, in particular where the allegation is of a pattern of behaviour said to constitute controlling or coercive behaviour. In Re H-N [2021] EWCA Civ 448, the Court of Appeal said that when an allegation of controlling and/or coercive behaviour is alleged, that should be the central allegation to be considered and “Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour” In Re JK [2021] EWHC 1367 (Fam) and Re B-B [2022] EWHC 108 (Fam) suggestions were made about how to draft allegations of fact in such cases. On the one hand it is unhelpful to have a long Scott Schedule containing multiple allegations about individual events. On the other hand a simple, unparticularised allegation that a person has been guilty of coercive or controlling behaviour is not helpful. It might be helpful to have a narrative statement of the relationship but include some specific examples of abuse and evidence as to when it started and ended, if it has ended. It might assist to group allegations under different headings of control or coercion.

In his judgment, HHJ Rogers referred to the large bundle of documentary material and witness statements. He gave pen pictures of the evidence of thirteen witnesses who gave oral evidence, including SW. In conclusion, the judge was satisfied on the balance of probabilities that the factual accounts advanced by the local authority were made out, and that the conduct could be properly categorised in part as coercive and controlling.

SW, supported by JW, appealed, which came before Poole J.  After recounting the history of the case, Poole J set out the relevant law, emphasising that, “[t]he appellate court should be slow to interfere with findings of fact.” Poole J then dealt with thirteen grounds of appeal one by one, which were summarised as follows:

40. […] In essence the Appellant contends that the Judge failed to provide any analysis of the evidence and failed to give any or any adequate reasons for his conclusions. The Judge did not identify SW’s case, where his evidence differed from that relied upon by the Local Authority, and did not explain how he had resolved those differences. The Judge did not weigh the evidence “warts and all”. Any analysis was superficial and the approach taken was confused. There was no specificity about findings made and there was no consideration of the wider context in which SW’s behaviour ought to have been analysed. As a consequence any conclusion that he was guilty of coercive and controlling behaviour is unsustainable.

The appeal was dismissed, but not without a distinct sense of trepidation. For example, Poole J acknowledged that “this very experienced Judge’s analysis of the large bundle of written evidence and oral evidence given by 13 witnesses as well as SW over three days, was at best concise”. Furthermore, Poole J identified that the judge “did not refer expressly to any specific document within the bundle”, and “[h]is analysis of the evidence relied upon by the Local Authority to support the seven findings it sought is found in one paragraph”. Later on, Poole J expressed, “I am sure that many other Judges would have referred to at least one or two specific alleged events to demonstrate why they preferred the evidence relied upon by the Local Authority over SW’s evidence. This Judge did not do so. Nor did the Judge analyse the oral evidence beyond his pen-pictures of the individual oral witnesses including SW.”

In the end, Poole J found that “the Judge was certainly concise, but he gave adequate reasons. His analysis of the evidence was brief but the dispute on the underlying factual accounts was not nuanced.” After describing this as “a difficult case”, Poole J held that:

61. […] There was no discernible error of fact or law. The Judge was entitled to make the findings that he did on the evidence before him. His judgment was coherent and his reasons were adequate. There was no procedural irregularity rendering the proceedings or the judgment unfair.

Comment

Fact-finding hearings in the Court of Protection are relatively uncommon at Tier 3 level (although they are more prevalent at Tiers 1 and Tier 2), and reported appeals from findings of fact are even more uncommon still. This judgment is a salient reminder that the utmost care should be taken in handling allegations that require findings of fact.

Although there was no appeal against earlier case management directions, it is apparent that this case would have benefited from better preparation in the earlier stages. Poole J found that “[t]he procedural pathway to the fact finding hearing in this case was problematic and the presentation of the findings sought was not particularly conductive to achieving clarity”. For example, in relation to the allegations presented, Poole J expressed the view:

49. […] It is regrettable that specific events or examples of SW’s conduct were not specified. There was not express allegation that on a certain date at a certain place SW acted in a certain way. However else they may have been presented, the allegations were in fact in the form of general statements about the effects of SW’s behavior on JW – affecting her access to health care, to care services, to the community, to her autonomy over finances and so on.

Poole J made the following suggestion, “[f]or clarity of understanding it would have been preferable if the specific events had been set out in the schedule rather than referring to them by way of bundle page references.”

We would stress the need for early, careful, and precise particularisation of specific allegations, especially where it is alleged that a pattern of behaviour amounts to coercive or controlling behaviour, and/or abuse. This would not only be of benefit to the judge making determinations, but to all parties involved.

Separately, although it did not form part of the appeal, Poole J also observed at (paragraph 20) that:

In this appeal I am not concerned with Dr Todd’s conclusion that JW’s “borderline intellectual functioning” met the diagnostic test, nor the potentially nuanced question of the causal nexus between her inability to make decisions as to care, residence and contact, and her borderline intellectual functioning. However, being a victim of coercion and control is unlikely to be found to be an impairment of or a disturbance in the functioning of the mind or brain. A victim of coercion and/or controlling behaviour may or may not lack mental capacity to make certain decisions including contact with the person who exercised control or coercion. A person who otherwise has mental capacity but is who is so subjugated by abusive behaviour that their will is overborne, may be the subject of an application to the High Court to exercise its inherent jurisdiction to protect the autonomy of such a person.

As Poole J made clear in remitting the case to HHJ Rogers (having clarified what, in fact, stood as findings of fact), one of the matters that he would have to address as soon as practicable in reaching a conclusion as to capacity was: “(d) [w]hether the causal nexus is established given the significant role of coercion and control and the need to identify a causal nexus between the inability to make a decision and an impairment or disturbance in the functioning of the mind or brain.”   It is to be hoped that there is a judgment forthcoming on this point, as it is one which causes very considerable difficulties, both conceptual and practical (see further this shedinar conversation between Dr Kevin Ariyo and Alex on the former’s research on interpersonal influence and capacity).