This Court of Protection decision LBX v TT and Others 2014 touches on some important issues. It is a case involving a 19 year old girl, and the decision of the Court that she lacked capacity to make decisions for herself and that it would be in her best interests to continue to live in foster care.
The background to this is that there were allegations of serious sexual misconduct by her step-father, who awaits criminal trial. The case had been set down for what would have been quite a long and tricky hearing, particularly in the Court of Protection, to determine the truth of those allegations. Since, if they were not true, the best interests decision would be very different, or potentially very different.
That starts to look like care proceedings, but on a vulnerable adult rather than on a child.
An additional complexity is that whilst mother and probably stepfather would have been entitled to free legal advice to fight the case in care proceedings, that’s not the case in the Court of Protection.
The Judge, Cobb J, said this (MJ is mum, JJ stepfather)
At the outset of the hearing on 7 July, MJ and JJ made an application to adjourn the proceedings to obtain legal advice. They told me that they had been advised that they did not qualify for legal aid (on grounds of means) and did not have funds to instruct a solicitor privately. They had tried, without success, to obtain a litigation loan from the bank. I had been advised at the pre-trial hearing that the Bar Pro Bono Unit could not offer counsel for this hearing.
I recognise the considerable disadvantage to someone in the position of MJ and JJ appearing unrepresented in proceedings of this kind; their article 6 ECHR rights are imperilled. However, as there seemed no realistic prospect of MJ or JJ obtaining representation in these proceedings, and given the need to reach conclusions at this hearing, I refused the application to adjourn.
I was advised that JJ had solicitors acting for him in the criminal proceedings. I caused a message to be communicated to those solicitors over the short adjournment expressing my hope that they would be able to offer JJ some advice. I was very pleased to see Mr Levy at 2pm appearing on a pro bono basis.
On the third day of this hearing, MJ attended court with a McKenzie Friend. I considered it appropriate to allow this gentleman to assist MJ, and in doing so, applied the Guidance offered by the McKenzie Friends Practice Guidance Civil and Family Courts (12 July 2010): this Guidance is said to apply to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts. I have assumed, and unless advised to the contrary will continue to conduct hearings in my court on this basis, that it applies to proceedings in the Court of Protection.
A further problem was the unwillingness of the police to provide any of the source material, which would have been vital to the conduct of any finding of fact hearing. In the event, the finding of fact hearing did not take place, due to MJ’s position at the hearing on 9th June 2014:-
I arranged a hearing on 9 June 2014 to consider the viability of the fact-finding hearing. At that hearing the case took an unexpected turn; MJ and JJ (who were helpfully represented by counsel instructed by the Bar Council Pro Bono Unit) indicated that they intended to remain together as a couple, irrespective of the allegations &/or the outcome of any trial of the allegations, and did not propose to offer TT a home, now or in the long-term. Specifically, they conceded that:
i) MJ could not envisage a situation in which she would separate from JJ “even if findings were made against him”.
ii) TT should not return to live with MJ and JJ; she should remain living with KK (MJ: “we cannot offer her a home”).
iii) That the decision that TT should remain with KK is a “long-term decision” on the part of MJ;
iv) JJ was “is not willing to, and will not, have any contact with TT in the future. Contact is defined as direct and indirect contact and facebook/social media messaging”. He further agreed not to attempt to have any contact.
Within the case, the Official Solicitor (representing the 19 year old, TT) argued that the Court should still conduct the forensic exercise about the allegations and what happened to this young woman, and went further in suggesting that the Court had a duty to do so.
The Official Solicitor, on behalf of TT, contended that I am under a duty, or, if not under a duty should nonetheless exercise my discretion, to hear oral evidence in order that I can determine a solid factual basis for establishing TT’s best interests orders, even on an interim basis. Mr. McKendrick referred me to Re W  EWHC 1188 (Fam) where McFarlane J held at paragraph 72:
“It is important that the planning in the future for these children, particularly C, is based upon as correct a view of what happened to R as possible. It is not in the children’s interests, or in the interests of justice, or in the interests of the two adults, for the finding to be based on an erroneous basis. It is also in the interests of all of the children that are before this court for the mother’s role to be fully understood and investigated.”
He contended that the principles outlined above could be appropriately transported from the Family Division to the Court of Protection. I interpolate here to say, as will be apparent later, that I agree.
The Official Solicitor’s argument was developed further thus:
i) Section 48 provides jurisdiction to make interim ‘best interests’ orders where it is necessary to make those orders “without delay”; this phrase in section 48(c) imports into the section a degree of expectation that this provision should be used very much as an interim measure;
ii) While the evidential bar is lower on determination of capacity in section 48(a), there is no qualification to the court’s approach on ‘best interests'; therefore unless the case is urgent, there ought to be a reasonable and proportionate enquiry into best interests;
iii) That I should endeavour to resolve the facts so far as I can at this stage; many of the issues will need to be grappled with at some point in time and it is better to do so while the events are fresher in people’s minds; this hearing was set up for that purpose, and the witnesses are available;
iv) MJ has expressed a wish for unsupervised contact in the future: see §9 above. Indeed, the Official Solicitor observes that the Applicant itself accepts that “it is … foreseeable that [MJ] will seek unsupervised contact in the future, after the conclusion of the criminal trial”;
v) That ‘best interests’ decisions should be made on the most secure evidential footing; this is particularly so where
a) interim orders are expected to last for a considerable period (the criminal trial may not be for many months);
b) interim orders are inconsistent with TT’s expressed wishes (see §95-98 below);
vi) Prolonged interference with TT’s Article 8 ECHR rights for unrestricted contact without a clear determination of facts is not proportionate;
vii) That particular caution is required before the Court proceeds to make determinations largely on the basis of concessions offered by an unrepresented party (MJ), particularly where that party is plainly distressed by the issues.
As a family lawyer, it interests me that lawyers in the Court of Protection are placing reliance on McFarlane J ‘s (as he then was) decision in the family Court in Re W, which is a decision I wholeheartedly agree with, when the Court of Appeal in dealing with family cases are taking quite the reverse view about finding of fact hearings in family cases. My support for the latter stance is somewhat less than wholehearted.
Cobb J goes on to borrow some principles from family law cases to provide guidance for if and when to embark on a finding of fact exercise in the Court of Protection, and these would now be rules or guidelines to follow in such cases
By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact)  2 FLR 1 in which she said as follows:
“There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.”
It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.
Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):
i) whether there is sufficient evidence upon which to make the relevant decision;
ii) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;
iii) whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
iv) the welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;
v) the prospects of success of the applicant for a full trial;
vi) does the justice of the case require a full investigation with oral evidence?
In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian)  EWHC 1593 (Fam) 2005 2 FLR 1031 at . Following a review of case-law relevant to the issue he stated that:
“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
(a) the interests of the child (which are relevant but not paramount)
(b) the time that the investigation will take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity or otherwise of the investigation;
(f) the relevance of the potential result of the investigation to the
future care plans for the child;
(g) the impact of any fact finding process upon the other parties;
(h) the prospects of a fair trial on the issue;
(i) the justice of the case.”
There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.
Those principles are familiar to family lawyers (or at least they were, before the Court of Appeal took its newer position) but are probably fresh to Court of Protection lawyers.
The Court decided not to embark on a full-blown fact finding hearing, but did take evidence on some limited allegations which were of particular import. As part of that judgment, the Judge also clarified that hearsay evidence is permissable in the Court of Protection.
Hearsay: The factual allegations which I have been required to investigate rely very extensively on what TT has reported to third parties. She has not been called to give evidence at this hearing (no party proposed that she should), and I have therefore had to rely on a range of hearsay accounts, and on records, and interpretations, of her behaviours.
Hearsay evidence is plainly admissible in proceedings of this kind; as McFarlane J made clear in LB Enfield v SA  1 FLR 1836. While ruling (at §29-30) that proceedings in the Court of Protection under the MCA 2005 must fall within the wide definition of ‘civil proceedings’ under section 11 of the CEA 1995, they are civil proceedings before a tribunal to which the strict rules of evidence apply. He went on to conclude (§36) that:
“COPR 2007, r 95(d) gives the Court of Protection power to admit hearsay evidence which originates from a person who is not competent as a witness and which would otherwise be inadmissible under CEA 1995, s 5. Admissibility is one thing, and the weight to be attached to any particular piece of hearsay evidence will be a matter for specific evaluation in each individual case. Within that evaluation, the fact that the individual from whom the evidence originates is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child”
In all the circumstances, I guard against accepting without careful consideration of the evidence as a whole, the hearsay evidence of what TT told LT and WT as proof of the substance of what is alleged against MJ; this is particularly so given the unchallenged evidence of Dr Joyce that TT has a “very limited understanding of the oath”.
This is, as always with Cobb J, a very detailed and well-structured judgment, and he eventually reaches these conclusions about the declarations sought
Having regard to the matters listed above, I propose to make the following orders/declarations:
i) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to litigate these issues;
ii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her care and residence;
iii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her contact with others;
iv) For the reasons fully set out above at §28 and §30, I declare that there is reason to believe (section 48 of the MCA 2005) that TT lacks capacity to consent to sexual relations;
v) For the reasons fully set out above at §30 and §105, I declare that there is reason to believe (section 48 of the MCA 2005) that it would be in TT’s best interests for any education about sexual relations to await the outcome of the criminal trial (in which JJ is a defendant);
vi) For the reasons fully set out above at §8(ii), and §100-102, I find that it is in TT’s best interests that she should continue to reside with her foster carer KK (and that I should make this order under section 15 of the MCA 2005);
vii) For the reasons fully set out above at §8(iv), §100 and §104, I find that it is in TT’s best interests to have no contact with JJ (and that I make this order under section 48 of the MCA 2005);
viii) For the reasons fully set out above at §100 and §103, I find that it is in TT’s best interests to have restricted supervised contact with her mother; this order is made under section 48 MCA 2005; I propose that this should be at a frequency of about twice per week, although with a degree of flexibility. For the time being, the contact should be supervised at least until the conclusion of the criminal trial. At the conclusion of the criminal trial, urgent consideration will be required in relation to whether on-going supervision of contact is in SS’s best interests.
It does raise important questions – not least being that if the Court of Protection is going to develop a jurisprudence of quasi-care proceedings about vulnerable adults then shouldn’t the parents/carers of those vulnerable adults have access to free legal advice and representation to deal with what can potentially be very grave issues and (as here) potentially extremely serious findings against them of sexual misconduct?