I’m sure there are boring cases that come into the list of Her Honour Judge Lazarus, but I’m yet to read one.
She opens this cracker with the line
- “ I likened it to arriving at the scene of a car crash, and wondered what one could do about it. This situation should never have arisen. It’s caused huge tension, including within any recommendation, and I’ve tried to keep X at the centre of it. ” This evidence from the independent social worker effectively summarises the key issues in this case.
Which, you’ll agree, is a belter.
Perhaps this opener is better
“Once upon a time, in a place now known as Montana, dinosaurs roamed the land. On a fateful day, some 66 million years ago, two such creatures, a 22-foot-long theropod and a 28-foot-long ceratopsian, engaged in mortal combat.”
And this might be my favourite line in any judgment
Dr Muir Wood asked her in cross-examination why she did not simply Google the word “prick” and she answered with admirable succinctness: “Because it would have shown me porn and penises
Martinez (t/a Prick) & Anor v Prick Me Baby One More Time Ltd (t/a Prick) & Anor  EWHC 776 (IPEC) (11 April 2018)
But the opener here is indupitably a cracker.
Z v Kent County Council (Revocation of placement order – Failure to assess Mother’s capacity and Grandparents)  EWFC B65 (18 October 2018)
I’ll try to capture the background quickly and simply.
In December 2017, a different Judge made a Care Order and Placement Order in relation to a child, Z.
Z’s mother had some significant mental health problems and had spent time (including during the proceedings) in a psychiatric unit.
Early on in the 2017 case, people became concerned that mother might not have capacity to instruct a solicitor (i.e didn’t understand enough about what was going on in the case or what Courts were etc to be able to tell their solicitor what to do. If you have capacity, you can instruct your solicitor to ask for what you want – even if it doesn’t have much chance of success, that’s your right. If you don’t have capacity, someone else – often the Official Solicitor, will decide what the solicitor should ask for on your behalf)
The Court gave directions for mother to be assessed to see if she had that capacity. The mother was also insistent that her parents (Z’s maternal grandparents) should not be assessed as carers. She did not attend that assessment. The Court (not HHJ Lazarus, the initial Judge) made a series of orders basically saying that UNLESS mum attended a cognitive assessment she would be deemed to have capacity by the Court. She did not.
Mum told her solicitors, just before the final hearing, that she agreed to Z being adopted, and a Care Order and Placement Order were made.
(That’s important, because the Court didn’t ever actually resolve whether mum had capacity to instruct her solicitor to agree to adoption. Agreeing to adoption is very rare in care proceedings – sometimes parents decide not to oppose the plan, but in 25 years, I’ve only seen one parent actually consent to adoption in care proceedings. It ought to have rung some alarm bells about whether mum really understood what she was doing)
To make matters worse, as Z’s maternal grandparents had been shut out of the case in accordance with their daughter’s wishes, they did not find out that Z existed until FOUR DAYS AFTER the Placement Order was made. Z had been placed, 3 weeks before that, with foster to adopt carers who wished later to adopt Z.
When the maternal grandparents put themselves forward as carers for Z, everyone accepted that they were capable of caring for Z, AND IF they had been considered within the care proceedings, the Court would almost certainly have placed Z with them under a Special Guardianship Order and not gone the adoption route.
The grandparents applied to revoke the Placement Order and for the Court to make a Special Guardianship Order for Z, placing her with the grandparents.
What HHJ Lazarus was faced with was then a competing argument between the maternal grandparents, and the prospective adopters (who had been caring for Z for 11 months, with the intention always of adopting her)
The prospective adopters, Q and R, gave evidence together in the witness box :-
- Q and R were sworn and gave evidence together, in a process known colloquially as ‘hot-tubbing’. This was proposed by me and agreed to by all parties as a sensible and effective time-saving device, and I consider that in the process I gained a good impression of each of them and of them together as a couple.
[See, although my titles are madness, yet there is method in’t. I know a hawk from a hand-saw.]
Oh, by the way, R was the step-aunt of the child’s older siblings, so it was a quasi family placement, so not just a straight fight between family v adopters.
The case, as well as the nightmarishly difficult task of deciding what was best for Z, raised two important issues of law
- What happens when a parent is thought to lack capacity, but they don’t cooperate with the assessment that would answer that question?
- If a parent refuses to allow relatives to be considered as potential carers, is that the end of it, or is there a responsibility on the Local Authority to consider them anyway if the only other plan is adoption?
- What happens when a parent is thought to lack capacity, but they don’t cooperate with the assessment that would answer that question?
There’s some lovely analysis here, set out carefully and precisely.
- c) Under section 1(2) of the Mental Capacity Act “ A person must be assumed to have capacity unless it is established that he lacks capacity ”. This is more generally known as the ‘Presumption of Capacity’. My underlining points out a critical, and often misunderstood, element of this provision
(WordPress has lost its underlining function, so I’ve put the judicial underlining in red)
- d) Sections 2 and 3 set out the factors to be considered in determining whether or not someone lacks capacity, and are not directly in issue here. However, section 2(4) provides: “ In proceedings under this Act or any other enactment , any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities .”
- e) It is well established and follows from the wording of those provisions:
– the Presumption is an important starting point;
– however information may raise a question whether a person lacks capacity and so lead that Presumption to be questioned;
– such a question is to be decided on the balance of probabilities by reference to the relevant factors in sections 2 and 3;
– it is therefore a matter of fact to be determined on evidence by the court;
– the Presumption is thus rebuttable, and may be rebutted if lack of capacity is established by that determination.
- f) The philosophy and purpose behind this Presumption is not a matter for detailed explanation in this judgment, but one significant intention is to prevent inaccurately assuming lack of capacity in apparently vulnerable individuals without it being properly established on evidence. It is emphatically not there to obviate an examination of such an issue. Nor can it have been Parliament’s intention to place a vulnerable person in danger of their lack of capacity being overlooked at the expense of their rights by a slack reliance on this Presumption, and as is made clear in the law I refer to below.
In short, whilst deciding that a person lacks capacity requires a judicial decision and evidence, that doesn’t mean that where you have doubts about a person’s capacity you just go with the presumption unless there’s a cognitive assessment to say otherwise.
- k) Medical evidence is “ almost certainly ” required for the purposes of establishing lack of capacity. In Masterman-Lister v Brutton and Co (Nos 1 and 2)  1 WLR 1511 at paragraph 17H Kennedy LJ said: “ even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists ”.
- l) But what should be done if there is no expert evidence available?
In Carmarthenshire County Council v Peter Lewis  EWCA Civ 1567 Rimer LJ was considering an application for permission to appeal against a decision in which the first instance judge had made an order that “ unless the applicant allowed an examination of himself by a particular specialist by a specified date, he was to be debarred from defending the claim ”. The purpose of the proposed examination was to assess capacity. In that case, the applicant did not allow the examination, and at the final hearing, the first instance judge determined the claim against him without further consideration of the issue of capacity. On appeal, Rimer LJ said this:
“ In my view the problem raised by this case is as to how, once the court is possessed of information raising a question as to the capacity of the litigant to conduct the litigation, it should satisfy itself as to whether the litigant does in fact have sufficient capacity. I cannot think that the court can ordinarily, by its own impression of the litigant, safely form its own view on that. Nor am I impressed that the solution is the making of an “unless” order of the type that Judge Thomas made. The concern that I have about this case is that an order may have been made against a party who was in fact a “protected party” without a litigation friend having been appointed for him ”.
- m) In Baker Tilly (A Firm) v Mira Makar  EWHC 759 (QB) the Respondent refused to co-operate in an assessment of her capacity. The Master hearing the case at first instance made his own assessment, based on the information available to him, that the Respondent lacked capacity. On appeal to the High Court, Sir Raymond Jack noted the dictum of Rimer J (above) that the court cannot ordinarily , by its own impression of the litigant, safely form its own view of capacity. But he also noted that “ In most cases where a question of capacity has arisen the person whose capacity is in question has co-operated with the court and the court has been provided with the assistance of appropriate medical experts ” and that “ counsel has not found any case where the court has had to resolve a situation as has arisen here where the litigant has refused to co-operate in an assessment of their capacity ” (paragraph 8). In the case then before him, having taken into account further information not available to the Master, he came to the opposite conclusion as to capacity. But it is noteworthy that there is no suggestion that the Master should not have attempted the exercise, or could have properly left the issue of capacity unresolved.
- n) In Re D (Children)  EWCA Civ 745 the issue before the appeal court was whether the court at first instance had failed properly to determine whether or not the mother had litigation capacity at the time proceedings were heard.
King LJ said this at paragraph 30: “ Evidence from a suitably qualified person will be necessary as to the diagnosis [cf. section 2(1) Mental Capacity Act]. This will usually be someone with medical qualifications. … ”.
And at paragraph 56:
“ This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance . The rules providing for the identification of a person who lacks capacity, reflect society’s proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further . It is in order to avoid this course causing delay that the Public Law Outline anticipates issues of capacity being raised and dealt with in the early stages of the proceedings .”
In that case the Court of Appeal described the steps that had been taken at first instance to establish capacity as a “ serious procedural irregularity ” but declined to order a fresh capacity assessment and a retrial on the basis that the mother was not adversely affected and no practical difference was made to the hearing or outcome as a consequence. The court validated the proceedings retrospectively.
- o) There therefore remain, to some extent, tensions between the dicta in the Court of Appeal cases referred to above, and arising between:
– on the one hand the absolute necessity to determine an issue of capacity, as a matter of fact, with the assistance of expert or other medical opinion, and as a matter of urgency;
– and on the other hand, the possible absence of an expert or other medical opinion through the parent’s non-engagement, refusal to attend assessments, or due to a failure to provide information by the relevant medical sources.
- p) There does not appear to be a clear and authoritative decision that provides guidance with direct reference to this problem. It cannot have been intended that proceedings should be hamstrung and in stasis by an inability to determine this issue in the absence of co-operation with medical assessment or availability of medical evidence.
- q) However, the key may be in the words ‘ ordinarily ’ and ‘ almost ’ in the Carmarthenshire and Masterman cases, and the word ‘ likely ’ in PD15B paragraph 1.2 which appear to give some leeway.
- r) Paragraph 44 of the updated 2018 Family Justice Council guidance states: “ A parent may decline professional assessment. In those circumstances, it will be for the court to determine the issue on the best evidence it has available. ”
- s) This may enable courts faced with this challenge where there is no expert or medical assessment evidence to meet the absolute requirement that capacity issues must be fully addressed and determined, and to do so by reaching appropriate pragmatic evidence-based decisions, while ensuring that both the overriding objective and the protected party’s rights are fully in mind.
- t) Such a determination could be based on a careful review of the other relevant material that may be available, such as a report from a clinician who knows the party’s condition well enough to report without interviewing the party (if available and appropriate), other medical records, accounts of family members, accounts of the social worker or other agency workers who may be supporting the parent, and occasionally direct evidence from a parent. 
- u) Any such finding made without expert assessment evidence that leads to a declaration of protected party status due to lack of litigation capacity could always be reviewed upon expert evidence being obtained to suggest that the finding was incorrect, and by ensuring that the question of assessment is regularly revisited with the protected party by their litigation friend, their solicitor and the court. Such a review and correction is anyway the case where a party has regained capacity and the issue is addressed with the benefit of an updating expert opinion.
- v) What can be derived as following from the above statutory provisions, guidance and case law as clearly impermissible or inappropriate, and would likely lead to a failure to apply the required procedural approach and lead to breaches of that party’s Article 6 and 8 ECHR rights? :
– failure to grasp the nettle fully and early,
– ignoring information or evidence that a party may lack capacity,
– purporting to ‘adopt’ the Presumption of Capacity in circumstances where capacity has been questioned,
– making directions addressing the capacity issue, but discharging them or failing to comply with them and thereby leaving the issue inadequately addressed,
– failing to obtain evidence (expert or otherwise) relevant to capacity,
– use of ‘unless’ orders,
– similarly, using personal service or ‘warning notices’ on that party,
– relying on non-engagement by that party either with assessments or the proceedings,
– proceeding with any substantive directions, let alone making final orders, in the absence of adequate enquiry and proper determination of the capacity issue,
– treating a party as having provided consent to any step, let alone a grave and possibly irrevocable final step, where capacity has been questioned but the issue not determined.
INVESTIGATION OF FAMILY MEMBERS
There’s a long and careful analysis of the principles with sources (which I’d recommend as vital reading for any lawyer or professional grappling with the issue of whether to consult with family members where the parent is dead-set against it but where adoption appears a realistic outcome if suitable family members are not found.) But here are the conclusions.
- s) The legal and best practice framework and local policies set out above are a small summary of a much wider range of authorities, statutory provisions and guidance. In combination, the following principles can be derived:
– Unless a child’s welfare requires it a child’s interests are best promoted by living with their family.
– Interference with the living arrangements for children by a Local Authority must pass a threshold. If there is insufficient evidence to establish that a child is suffering or is likely to suffer significant harm the court, at a Local Authority’s invitation, cannot interfere with a child’s living arrangements.
– Where it becomes clear to a Local Authority that a child is at risk of suffering significant harm there is a duty under section 17 Children Act 1989 to provide services to a child to try to allow them to live within their family.
– When public law proceedings are contemplated and removal of the child from their primary carer is a realistic possibility the Local Authority should identify at the earliest opportunity if there are wider family and friends who may be able to care for the child, for example from their own records.
– A referral to a Family Group Conference should if possible be made when proceedings are contemplated. One of the purposes of the Family Group Conference is to identify if there are wider family members who can offer support or care for the child.
– Where capacity is an issue the Local Authority should consider if an advocate is necessary to assist a parent.
– If a Family Group Conference referral is refused legal advice should be sought. Any parental objection to wider family members being assessed or involved in proceedings requires scrutiny.
– Identifying alternative carers for a child should if possible take place during the pre-proceedings process under the Public Law Outline, failing which it should be raised with the court once proceedings are issued.
– Once in proceedings the Local Authority still has a duty to continue identifying wider family members who may be assessed to care for the child. This is part of the duties required of Local Authorities to promote the child’s welfare.
– A child’s right to respect for private and family life may include the right to know wider family members who have not been part of the proceedings and may not have met the child.
– When adoption is being considered the Local Authority has a duty to ascertain the wishes and feelings of relatives regarding the child and the plan for adoption.
In this case
- o) I acknowledge that there may be good reasons on occasions for other family members not being approached, but these need to be understood rather than glossed over. And, while there is case law relating to certain extreme examples where the question of who should be contacted about or made parties to family proceedings has been considered, there does not appear to be authoritative guidance on the type of circumstances as arose here in relation to Family Group Conferences.
- p) Here, given the concerns over Y’s capacity the Local Authority should at least have been alert to consider very carefully her failure to put forward any relative. Reliance on her exercise of parental responsibility cannot sit together with the Local Authority’s own concerns about her capacity, without further careful enquiry.
- Errors, traps and temptations that should have been avoided :
(Can I please say how much I like these helpful subheadings in the judgment – albeit that I can only imagine how cringe-making it must be for those involved in the proceedings to listen when a Judge announces that as a chapter title…)
- I) Relying on Y’s purported exercise of parental responsibility in saying that she did not propose the maternal grandmother as a potential carer. In particular where she was thought to lack capacity, this is not a step that somehow relieves or prevents the Local Authority from considering what steps needed to be taken to meet its duties to consider other family members.
- II) Believing the Presumption of Capacity replaces or obviates the need for the court to determine the issue of litigation capacity on evidence as a matter of fact, or entitles the parties or the court to ignore a capacity problem, particularly where there were worrying recent accounts of Y being significantly unwell. It is simply a rebuttable assumption and a starting point. Any suggestion that capacity is in issue should lead to the opposite approach, namely to take steps that would enable the court to determine whether the assumption remains in place or lack of capacity is established.
III) Ignoring glaring evidence or information suggestive of lack of capacity. This is an abrogation of responsibility to acknowledge the implications of such information, albeit it is easier to shut an eye to it in order to avoid its inconvenient effects on the case, particularly where a case outcome appears obvious or a solution is readily to hand.
- IV) Relying on Y’s non-engagement or non-attendance at hearings, or employing ‘unless’ orders as a basis for progressing the case and discharging directions critical to the question of her capacity. A vulnerable person who may be a protected party due to lack of capacity may well find it difficult or impossible to engage or attend without the appropriate support or identification of her status and appointment of a litigation friend. This compounds a breach of her Article 6 rights.
- V) Personal service and warning ‘Notice’ – these steps make no sense in law or natural justice if Y lacked capacity, and simply seem to lack common sense. What might such steps or notices actually mean to a vulnerable person who lacks litigation capacity?
- VI) Discharging directions critical to the determination of the capacity issue, and not complying or following up on non-compliance with those directions. This is case management failure with direct consequences for the procedural propriety of the case.
VII) Making permissive directions to obtain the treating clinician’s certificate of capacity, rather than mandatory and time-limited directions.
VIII) Treating Y’s wishes and feelings obtained by the Social Worker and over the telephone with her solicitor as a capacitous decision consenting to very grave and complex and potentially irrevocable orders, compliant with section 52(5). Her diagnosis of emotionally unstable personality disorder and alcohol dependence were well known. Directions had been made that she should be subject to capacity, cognitive and psychiatric assessment, but had not resulted in any assessments nor other medical information being provided. There was no adequate information before the court to assist with any question of her abilities or suggestibility or understanding.
- IX) Her position was erroneously described as ‘consent’ and named as such in the order, when it was not put forward as formal consent in the Position Statement prepared on her behalf, and the exercise of considering whether her consent should be dispensed with by undertaking a welfare-based consideration of the checklist factors was not done, despite her solicitor flagging it up.
- X) As the Social Worker and Children’s Guardian acknowledged, the parties became caught up in the ‘excitement’ of having found a solution for X’s placement that avoided stranger adoption, and so lost sight of wider issues that had been overlooked.
- XI) The temptations of a precipitate approach, naturally abetted by the lure of completing a case within the required 26 weeks time-limit, and by the existence of ‘a solution’ for X which tempts professionals and the court not to address the harder, wider or longer questions which might cause any delay, leading everyone to push ahead to final orders despite serious procedural irregularities.
XII) No party, representative nor the court spotted or voiced or prevented or corrected the series of avoidable errors around failing to address a key issue which had riddled the case from the outset, and the case was allowed to progress and ultimately extremely serious final orders were made on the back of those serious procedural irregularities. This collective shared failure seems something akin to group-thinking or peer pressure or a gross shared example of confirmation bias.
This is already a piece which is far too long, but in terms of the final decision, HHJ Lazarus decided that Z should stay with Q and R (the step-aunt) who had originally intended to adopt her, but under a Special Guardianship Order, and that there should be a Child Arrangements Order giving contact between Z and the grandparents. The reasoning is too long to set out here, and it must have been a very difficult task – readers who are interested are referred to the judgment paragraphs 51 onwards. There was the involvement of an independent social worker whose evidence was very helpful to the Court in reaching the decision.