A County Council v AB & Ors (Participation of P in Proceedings)

On Friday last I conducted an urgent Case Management Hearing at the conclusion of which I delivered a short ex tempore judgment but given the importance of the matter I offered, if any party wished it, to provide a further expanded judgment albeit still ex tempore and orally delivered but having the opportunity over the weekend and Bank Holiday to formulate the reasons. At the conclusion of that judgment Mr Reeder invited me to deliver such an additional judgment and I now do.

AB was born in 1991. He has unfortunately lifelong physical and mental disabilities and substantial communication problems. These proceedings will decide his future and in particular where and in what circumstances he will live. The background is factually controversial. Both of AB’s parents have been joined as parties and he similarly is a party. There are to be resolved serious questions of physical, emotional and financial harm, and a Schedule of Allegations which is at the beginning of the bundle and is entitled S1 sets out the factual matters in dispute. At an early stage it was determined to deal with the matter in two parts, starting with a fact finding hearing. That hearing, in an absolute strict sense, stands part-heard but in reality the earlier hearing only involved the short evidence of one witness before the hearing was adjourned for various reasons into which I need not go. What is left is effectively the full fact finding hearing, a substantial and substantive hearing with nine days’ Court time set aside, due to start in two weeks.

In recent weeks leading up to this hearing there have been positive substantial developments and it may be that a consensus will emerge which will avoid or at least reduce the scope of the hearing. There is, as counsel put it, guarded optimism but no guarantee at present and accordingly the Directions that I made on Friday anticipate the matter proceeding to a full hearing.

That hearing, as I have said, was a Case Management Hearing. The lack of available Court time, which was known in advance, meant that I directed that the issues were subject to full Skeleton Argument to be added to only by oral submissions within the time available. Helpfully therefore I had before me four extensive Skeleton Arguments and additional documents and a core bundle specifically for the hearing. I am grateful to all four counsel for their Skeletons and to Miss Crow, who stood in for her trial counsel, at the oral submissions stage. Although the decisions are in the nature of case management they are of the utmost importance to AB and are regarded by the Official Solicitor, who acts as his Litigation Friend, as raising issues of wider significance.

Some years ago the Court of Protection was a little known backwater of legal endeavour. The Mental Capacity Act 2005 changed all that and the work of the Court of Protection has grown enormously in the last 10 years. It is a jurisdiction of profound importance and unlike any other. It takes decisions for people who lack capacity and the decisions are often life-long and life-changing. It is a dynamic jurisdiction and change in law and practice is rapid. A common misconception is that it is a paternalistic secret jurisdiction. Conducting much of the work in public and providing accessible judgments online are important recent developments which undermine that misconception.

At the heart of the jurisdiction is the person the subject of the litigation called P. Many professionals involved, in legal and other disciplines, have knowledge and/or direct involvement in childcare law or practice. They are inevitably informed by that experience as they approach cases in the Court of Protection. So, just as the role of the child in Family proceedings is under constant re-evaluation, so is P’s role and his ability to participate in Court of Protection proceedings likewise.

In this case the issue of AB’s participation arises directly. It has been broken down by Mr Bagchi QC, who represents AB, in his Skeleton to a series of questions and propositions. There are a number of authorities touching on the participation of P but none which formulates at the appellate level guidance for trial Judges. The decisions I make are obviously factually specific to AB’s case but it is necessary to consider the questions of principle. At A80, which is page 3 of Mr Bagchi’s Skeleton, he lists eight questions, the last two of which are practical but the first six are substantive. He sets out the following;

His case, on behalf of the Official Solicitor representing AB, is that the key decision-maker in respect of P’s active participation in the case is the Litigation Friend, often – as here – the Official Solicitor, with the Court having no or only a residual duty to overrule.

In this case, however the precise legal test is formulated, a further question arises, namely, whether or how AB should be allowed to participate, whether by attendance or by meeting the Judge, by presence in the court room or via a link, or offering direct oral input into the proceedings. I use the inelegant phrase ‘oral input’ as there is an issue as to whether what AB says is truly evidence. The Local Authority and the parents all oppose AB giving evidence or addressing the Court other than in an informal meeting with me. The parents oppose AB’s attendance at Court and the Local Authority has some reservations although takes a fairly balanced view and will support practical arrangements so long as they do not draw upon Local Authority funding or resources to any significant extent.

I note, of course, that the parents are in part the subjects of the abuse allegations and so might have a vested interest in restricting their son’s ability to provide information to the Court. I accept that that is not their motivation. They are acting bona fide in expressing a worry as to the impact of his participation.

The provisions of the Act are quite well known; perhaps the Rules less so, but they are worth restating. Section 1 deals with principles. Section 1(3) reads:

Section 3 deals with the inability to make decisions and in part reads in subsection (2):

Section 4, deals with best interests. The relevant subsections are as follows:

The working of the Act and the administration of the process is subject to the Court of Protection Rules 2007. I will not read extensively from them but indicate the important matters which are in place simply by listing them. Rule 3 is the well-known overriding objective. I just mention sub-rule 3(b) namely that it is important that P’s interests and position are properly considered. The overriding objective is supported by the newly-introduced Rule 3A headed ‘Participation of P’ which is long and I will not read it but all of it is relevant to this particular case. That Rule is supported by the Practice Direction 2A. Rule 5 deals with case management matters and sets out a number of features of what is described as ‘active case management’ and again they are key. Rule 25 deals with further case management powers under the Court’s general powers of case management which are extensive.

The next Rule 26 is a very interesting one. It reads as follows:

Rule 88 deals with participation in hearings:

Rule 90 deals with the nature of hearings and sets the general rule that a hearing is to be held in private. Sub-rule (2):

Rule 92 provides that the Court may make an Order for a hearing to be held in public and of course currently the Transparency Pilot means notwithstanding the general rule as enunciated in Rule 90 that in fact the vast majority of proceedings are in public in the sense that subject to appropriate Rule-compliant safeguards any member of the public or member of the accredited Press can attend and the proceedings may be reported subject to privacy considerations in terms of P’s identity.

Rule 95, which features heavily in the argument, is the power of the Court to control evidence:

Finally, Rule 96 is the general Rule that evidence of fact needs to be proved by evidence of a witness (a) where there is a Final Hearing by their oral evidence.

Against that statutory and Rule-based background I turn to the case itself. Every case is of course different and so it is important that decisions are taken in an evidential context and not in a vacuum. The first point is that this is a process in two stages; first, fact finding, and then a welfare or best interests stage. Fact finding quite obviously is forensic and evidence-based and different considerations may well apply to the two types of hearing.

It is a sad fact, which has to be acknowledged, that AB has severe disabilities and impairments. This is not a borderline capacity case. That must not be overlooked. In this case there is a lot of evidence from experts, carers and those who have got to know AB well. He can communicate but the communication is not sophisticated and depends upon a patient approach. In preparation various reports have been commissioned, the most important of the earlier reports are those of Dr Jo Lilley, consultant clinical psychologist, who has reported twice, and those reports are in the F section of the bundle. In the Opinion section Dr Lilley, in her first report, at para. 5 (F40) answers the question ‘What is the likely impact on AB, emotional, psychological and/or physical of attending the hearings to listen to the evidence and proceedings in accordance with his wishes?’ and then she sets out over the next eight or nine paragraphs the competing points. I need not read them; they are all there to be seen. She expresses reservations and concludes that it is unlikely that he will have a concept of the consequences as he does not have any experience of going to Court and it has been noted that he has difficulty understanding abstract concepts. However, that is a conclusion based upon the balancing factors that she puts forward.

In the next Section, from 5.10, considering the alternative, namely, what would be the impact of him not being permitted to attend the hearings, similarly she undertakes a balance and highlights the frustration and upset of him not being able to attend Court and weighs up the competing arguments.

In 5.16 and following she is asked to comment on the adverse effect of either option and how and to what extent the risks could be mitigated, and she goes through those important factors.

She is asked the important question whether AB is competent to give evidence in these proceedings applying what is described as the ‘Section 53 test.’ I will return to that. But she says at 5.23:

At 5.27:

Then she is asked about impact and at 5.37 dealing with the impact on AB of not being permitted to give evidence, contrary to his wish, she says:

Further questions were asked and further information was required, and in her second report she refined the conclusions. I will not read them in detail but from F83 para. 5.12 she goes through some of the points again and considers at 5.20 this:

I intend no disrespect but I will not quote at all from the reports of Miss Kay Coombs, the Speech and Language Therapy expert, although there is much helpful material in there which is consistent in many ways with what Dr Lilley says.

The other important element in this body of material is the much more recent statement of Ms Karen Dart, who similarly is a Speech and Language Therapist at Leeds Metropolitan University, and is a Registered Intermediary. She has engaged with AB in recent weeks on a fairly extensive basis, meeting him frequently, sometimes alone, sometimes with others. She has, it would seem from the report, formed a rapport; has been able to tap into his communication skills – limited relatively though they are – and has made substantial progress.

At D283, recording her notes of the session of 3^rd May 2016, which she attended with Mr Keith McKinstrie, the Independent Social Worker, she was able, she says, to elicit clear responses to a number of points and at paragraph 91 in terms of his wishes and feelings she summarises AB’s views as wanting to live in his bungalow; wanting to live at his bungalow with friends that help; not wanting his parents to live at the bungalow with him; that mum makes him happy; that dad makes him happy; that there are other people who do not make him happy; that living at the care home makes him sad; and that he does not want to live at the care home. At paragraph 92 on the following page she says:

So the decisions I take are against that statutory and Rule-based framework and the evidence which I have only summarised but have considered in detail.

First of all, I must deal with the role of the Litigation Friend. It is a creature of civil law but the role in this jurisdiction is spelled out in the Rules but in general terms. As far as I am aware no statute, set of Rules or authorities is or are prescriptive in terms of how a Litigation Friend discharges his or her duty. It would be quite wrong for the Court in effect to manage – or as some might see it, micro-manage – the discharge of the Litigation Friend’s central functions. In the Court of Protection we are fortunate, in my judgment, that many Litigation Friends are professionals in the sphere of Social Work or Social Care or have the experience of the Official Solicitor and his office. Very often therefore they are experienced independent persons acting fairly and with P at the heart of the matter. At A93, again in Mr Bagchi’s Skeleton, he devotes a whole passage beginning at paragraph 43 to the role of the Litigation Friend. I do not read it but I express my agreement with the propositions set out therein and the citations from authorities describing broadly the functions of a Litigation Friend.

Rule 140 of the Court of Protection Rules, in dealing with who may act as a Litigation Friend, is short and general and describes the person being able to act as a Litigation Friend if ‘that person –

can fairly and competently conduct proceedings on behalf of that person and

has no interests adverse to that person.’

Both as a matter of general principle and looking at those Rules, in my judgment a Litigation Friend therefore has a wide breadth of discretion as to the conduct of litigation and the Court should only intervene in extremis. Accordingly, it seems to me in principle that a Litigation Friend as part of the conduct of that litigation can secure the attendance of P in the Court building or in the Court room, and can tender P to give evidence.

I am not persuaded that the Court has a general case management power to exclude P and if there is one it should not be lightly exercised in view of the role of the Litigation Friend and certainly if that is contrary to the Litigation Friend’s own view. In my judgment Rule 90 provides or establishes the entitlement of P to attend proceedings. The word ‘entitlement’ or ‘entitled’ is clear.

I am quite satisfied that there is no distinction to be drawn between private and public proceedings; it would be absurd in my judgment that the Transparency Pilot and the desirability of proceedings being heard in public should in fact be restrictive of P’s position. Accordingly, the general rule is his entitlement to attend.

Rule 88, dealing with participation, in my judgment, is permissive to proceed in P’s absence. That is precisely what the Rule provides. It is not and should not be read as a power to exclude.

I turn then to the giving of evidence or the provision of information. Court of Protection proceedings are civil proceedings in nature. That is well-established and is confirmed in London Borough of Enfield v SA [2010] EWHC 196 Admin, a decision of Mr Justice McFarlane (as he then was). Notwithstanding the confirmation that they are civil proceedings it is important, as the learned Judge said in the passage relied upon by Mr Bagchi, to have regard to the entire purpose of this jurisdiction. With that, if I may say so, I respectfully agree. Therefore subject to proper scrutiny and of course the overall question of Article 6 fairness, the Court should avail itself of all proper information both in determining facts and making best interests determinations.

In his original Skeleton Mr Bagchi concentrated only upon the impact of Rule 95(d). That is, as I remind myself, the power to control evidence and the Court’s ability to admit evidence whether written or oral as it thinks fit. That and other Rules dealing with the control of evidence were the way Mr Bagchi originally put the point. But he accepts in fact that sub-rule 95(e) is broader and is key to this issue, and I re-read it for relevance:

The test of a witness’s competence is different from capacity and I am grateful to counsel for researching and highlighting the differences in the various jurisdictions. As I understand it there is no difference between them on the current state of the law. In R v Hayes [1977] 1 WLR 238, a decision of the Court of Appeal, Lord Justice Bridge was required to set out the modern view of the civil test to evidence and he concluded that the key ingredients for competence were that the witness would understand the solemnity of the occasion and the responsibility to tell the truth; if so, that witness could be sworn to give evidence. I was reminded that there are different considerations which may apply to the evidence of children in proceedings under the Children Act 1989 or to any witness in criminal proceedings, and I refer then to the so-called Section 53 point that Dr Lilley was invited to consider. The reference is to Section 53 of the Youth Justice and Criminal Evidence Act 1999 which provides:

The interpretation of that Section of course is subject to the important guidance of the Court of Appeal in R v B [2010] EWCA Crim 4 where the then Lord Chief Justice, Lord Judge, set out in detail the implications of the statutory provisions. I will not read them into this judgment; they are relatively well-known and in fact Mr Bagchi cites a passage from them at A86 paragraph 21 of his Skeleton. It is important that the test is applied in a common-sense way using the words of the statute and as Lord Judge makes clear that the test is not based on any presumptions or preconceptions. As he says, the witness need not understand the special importance that the truth should be told in Court and the witnesses need not understand every single question or give a readily understood answer to every question. It is a simple straightforward test in the view of the learned Lord Chief Justice.

From that, and at the heart of Mr Bagchi’s submission, is that the civil test is too restrictive and is out of step with the modern approach, particularly in a jurisdiction such as the Court of Protection. He accordingly invites me in effect to import the Criminal approach under Section 53 into the Court of Protection process. That is on any view a bold submission. The response predictably from others is that that would be improper and would be the Court usurping the role of Parliament. I need not go as far as the Official Solicitor submits. I am quite satisfied that Rule 95(e) is a wide and flexible provision. It is permissive and has three limbs. Above all it refers to ‘information’ and not evidence.

Other parties in the case accept the application of Rule 95(e) but say either it has no relevance here or as a matter of discretion should not be invoked. Mr Reeder on behalf of AB’s mother in particular says that a fact finding hearing is so different in nature that different considerations apply; then that AB’s information would lack sufficient reliability or probative value; and third, the process would be traumatic and distressing. He relies upon the evidence of Dr Lilley and others in support of those propositions. The other parties opposing the Official Solicitor’s applications support those points. Mr Reeder at paragraph 11 of his Skeleton, says this:

I accept these are powerful points. I also accept the reality is that AB has severe disadvantages and his ability to give clear and reliable answers is limited in the view of the experts although it could be said that Ms Dart is more nuanced. However, I do not accept that I am bound to accept the expert view at this stage and in effect abdicate the judicial role or at least subjugate it. It is highly likely that the expert view will prevail, but not even to attempt to give AB an opportunity to contribute even to the fact finding phase is in my judgment too restrictive. The fact that he is almost certainly not competent to give evidence is no reason not to seek with appropriate help to elicit ‘information’ from him via a skilled intermediary. It may well be that the net result will quickly be apparent that his information is too unclear or lacks probative value and so the exercise can gently be curtailed. In other words, using Rule 95(e) the Court may admit the information but there is no guarantee that it would accept or act upon it. If the Official Solicitor tenders AB to give ‘information’ I do not accept I have a general power to stop him or that a specific permission arises; it is in my judgment simply an application of Rule 95(e). Of course even if this exercise proves fruitless the position may be different at the best interests stage because it is certainly clear that AB has communicated his views as to the future.

Accordingly, on the question of his attendance and the provision of evidence or information, I take the view that the Litigation Friend has generally an unrestricted power to conduct the proceedings albeit subject to the Rules and that the Court’s powers to intervene or overrule the Litigation Friend are limited to extremities. Rather than create a general case management power, I prefer to characterise the Court’s role as dealing with specific best interests decisions as they arise, and they do arise in many different circumstances.

The parents, to be fair to them, put the case principally upon this footing. They say it is contrary to AB’s best interests to attend the hearing, even to remain in or around the building, and certainly to give evidence or provide information, because it will have no probative evidential value and the process will cause distress and even harm to him. They say it is contrary to AB’s best interests to observe his parents and previous carers being cross examined about those historical allegations because that will cause distress and harm to him. They submit that his participation should be limited to meeting me. They have no objection to him being provided with updates during the course of the hearing. It seems to me in an ideal world that such matters should be isolated and litigated at a very early stage. That has not happened here and because the case has developed as it has, I intend no criticism of anyone and therefore I am prepared to deal with the question on the basis that there is an informal application by the parents for a best interests declaration on participation or provision of evidence and information.

To exclude P and prevent his participation other than at a relatively low-level meeting with the Judge is in general a serious step and contrary in my judgment to the spirit of the Act. I accept that there is evidence of potential harm and that there are substantial misgivings properly and conscientiously felt by the parents and representatives of the Local Authority. But on the other hand there is evidence of AB’s desire to give evidence and to participate and of his potential frustration if he is not permitted to do so. He has been described at times as ‘resilient’ and there is the advantage, as Dr Lilley puts it, of empowerment. In this regard, Miss Dart’s evidence is very encouraging. I accept that there are powerful points both ways and that this is a difficult balance to strike. But it is nevertheless a balance. There is no presumption, but there seems to be good reason in this case why it is worth having a try and keeping the matter under review. Therefore I am not prepared to make a best interests declaration that it would not be in his best interests to attend or attempt any form of participation. After all, the special measures and substantial adjustments that are proposed are designed to deal – at least in part – with those anxieties.

Summarising my views and in answer, I hope, to Mr Bagchi’s questions and propositions:

It follows from all of that, that in this particular case my decision is that there is no best interest declaration that needs to be made to prevent P’s participation; that P should attend and should attempt to participate; and that he can be tendered for questioning, very probably in the context of a Rule 95(e) exercise, which can be curtailed if necessary, even at an early stage. I recognise the powerful points made and understand the very real anxiety that AB may be dragged into the fact finding when in reality the Local Authority does not want or need him to prove their case. AB’s real interest appears to be to express his views as to the future not the past and to provide his expressed wishes as to his own circumstances rather than to give an account of past events. Therefore I am acutely aware of the dangers and I have no wish to embark upon an empty exercise that is just as synthetic as other methods of participation suggested, but it is my view that we should try. As the Judge, I have the duty to find the facts and evaluate the evidence or information provided. Simply to regard AB’s contribution as forensically worthless without even hearing him is not something I can contemplate.

Pronouncements on matters of generality or policy by Judges below the level of High Court Judge are generally unhelpful and unnecessary and I do not offer the following in that way. I merely state my approach to this case. In the course of the argument I have also considered several other cases. In London Borough of Redbridge v G [2014] EWHC 485 Ms Justice Russell describes the case that she had involving a 94-year old whom she describes as sitting with dignity in the Court throughout and addressing the Court. In London Borough of Redbridge v G [2014] EWCoP 17 the learned Judge dealt with the next phase of the same case. By that time things had changed significantly. Ms Justice Russell says at para. 19:

In Wye Valley NHS Trust v B [2015] EWCoP 60 Mr Justice Peter Jackson dealing with a case of entirely different facts had some comments of a general nature as to the participation of P. He says at para. 10:

I accept that in that case the learned Judge is referring specifically to the opinions, wishes and feelings of P. There are different considerations which apply in a fact finding hearing which is purely forensic with the fact finder looking to establish on the balance of probability evidence of past events. But nevertheless the learned Judge’s comments seem to me to have some application generally.

At para. 18 he says:

Again the factual circumstances of Mr B are of no relevance in my case and of course it is a point that no doubt is well made that Mr Justice Peter Jackson satisfied himself in that case that a face-to-face meeting would suffice, but what seems to me of interest is that he felt the human touch was crucial in having the individual there rather than simply relying upon paper accounts – however excellent, to use his word. That again, it seems to me, militates in favour of the decisions that I am taking.

Finally, the decision recently of the Court of Appeal in Re E [2016] EWCA Civ 473 albeit in the different context of care proceedings, is of interest. In that judgment, which I will not read in any way by way of direct citation, Lord Justice McFarlane giving the leading judgment in the Court of Appeal at paragraphs 46ff and in particular at paragraph 62 puts the value of a child’s direct evidence in context and in my judgment is a useful indication of the thinking of the Court of Appeal in the modern approach to that jurisdiction. I stress that these authorities are not precedents to follow for me today in a factual or discretionary decision; neither are they templates or presumptions of the judicial approach. For my part they simply seem to me to reflect the modern approach to the issue of participation in its most broad sense and I am comfortable with that modern approach and seek to apply it to this case.

For all of those reasons effectively I granted the various applications put forward on behalf of AB through the Official Solicitor as a preparatory for the forthcoming hearing subject of course to any other developments that there may well be. I perhaps should have mentioned in passing that one of the key ingredients in preparing AB will be first of all a visit to the Court, which I know has been arranged, and secondly, a ground rules meeting (so-called) between the advocates and involving the Judge and intermediary. With all of those protections in place I am satisfied that the case can be conducted fairly and proportionately.

Given Mr Reeder’s comments to me on Friday, there may be, as a result of this judgment, an early and urgent approach to an appellate tribunal. In order then to be helpful I refuse permission to appeal notwithstanding no application has been made simply so that the process is streamlined and a direct application may be made without delay.