Findings of fact and welfare

The President of the Court of Protection has declared that a fellow COP judge had not erred in failing to make findings of fact in relation to the events which triggered the proceedings of a 30-year-old woman lacking mental capacity. Morris Hill and Ken Slade examine the ruling.

As a result, the judge's declaratory order, detailing the appropriate welfare arrangements for the woman, had not been unlawfully made. 

In Re AG [2015] EWCOP 78 a 30-year-old woman (AG) with a learning difficulty, autistic spectrum disorder and depression, alleged that she had been physically and emotionally abused by her mother, DG. In addition, allegations of local authority care staff providing inadequate care, mismanagement of AG’s medication by DG and verbal abuse of care staff by both AG and DG, were made.

In 2011, on the back of AG transferring from one care facility to another, the urgent, and then standard, authorisation of the deprivation of AG’s liberty was granted on 16 and 22 November, respectively. Following this, the local authority applied to the Court of Protection on 24 November 2011.

Hearing the case at first instance, His Honour Judge Rogers made orders which declared AG as lacking the capacity to litigate or make decisions about her residence and care. Accordingly, he said, it was in AG’s best interests to live at the accommodation identified in the local authority’s care plan.

The second of these orders was appealed by DG on four grounds, namely that HHJ Rogers:

1. had erred in not conducting an adequate assessment of AG's capacity;

2. failed to make findings of fact in relation to the events in 2011 that had triggered the proceedings;

3. made a decision as to where AG should live which by September 2013 was a fait accompli; and

4. acted in breach of Article 8, European Convention on Human Rights, in directing that DG's contact with AG should be, as it is put, 'heavily' supervised.

The President of the Family Division, Sir James Munby (pictured), heard DG’s evidence at an oral hearing in January 2015, before granting her permission to appeal.

Decision

Hearing the appeal himself, Sir James Munby rejected all four grounds of the appeal raised by DG.

In relation to the first ground, he found that, after careful consideration of all of the facts, the medical evidence prior to the appeal hearing had indicated that AG’s capacity was unlikely to fluctuate, become dynamic or alter in the future and that no new medical evidence had been presented to the court to suggest her capacity should be revisited.

DG made the case that, in the original proceedings, HHJ Rogers had erred when he failed to call for a fact-finding hearing. This was rejected by Sir James Munby however; as he felt that a lengthy and costly fact-finding hearing would have been entirely disproportionate. The landscape of the case, he said, had clearly changed from the initial allegations of abuse and HHJ Rogers had correctly recognised that the degree of inquiry undertaken during the 2012 hearing was sufficient to base the future arrangements of AG.

On the third ground, Sir James Munby was unable to criticise the judgment of HHJ Rogers. He gave “cogent” reasons for concluding that there needed to be a decision in June 2013 and equally cogent reasons explaining and justifying the decision then that AG should move back to her supported living placement. His reasons for not changing the arrangements in September 2013 were clearly articulated and, as in the case of his earlier decision, securely based on professional and other evidence which he was entitled to accept.

Finally, on the issue of any article 8 breach, HHJ Rogers was, Sir James Munby said, “appropriately sensitive” in balancing AG’s needs and wishes against DG’s understandable and legitimate aspirations. His decision was securely founded in the evidence and appropriately directed to the early implementation of a regime of more frequent and less stringently supervised contact. Accordingly, whatever interference with family life his approach entailed was, in all the circumstances, necessary and proportionate.

Comment

DG has sought permission to appeal the decision but, as this decision is a second appeal, the Court of Protection was unable to hear the application, which can only be made to the Court of Appeal. It remains to be seen therefore, whether this decision will be appealed.

This case may well be one that local authorities wish to take a close look at, after Sir James Munby proffered advice on how to deal with similar cases at the very end of his judgment. Most notably he called for authorities to ensure they obtain the necessary judicial authority when looking to move an adult lacking capacity from their home into alternative accommodation. Additionally, authorities should seek to balance the understandable distress and anger that is likely to be caused to someone in DG’s position when initial relief is obtained from the court on the basis of allegations which are not thereafter pursued.

Morris Hill is an Associate and Ken Slade is a Professional Support Lawyer at Weightmans. Morris can be contacted on 0151 242 7990 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Ken can be reached on 0151 242 7990 or This email address is being protected from spambots. You need JavaScript enabled to view it..