Nottinghamshire County Council v SV & Anor

These are extremely long running Court of Protection proceedings, the original application having been made by Nottinghamshire County Council (“the local authority”) on 28 July 2023. The case concerns “SV”, a 63 year old man with a mild learning disability. There have been eight hearings over the course of two years, and the social worker is now on her thirteenth witness statement. On 3 June 2025 HHJ Rogers ordered a fact finding hearing to take place and a very detailed schedule of allegations was drawn up. The parties sought a five day hearing. The contentious issue which led to the decision to hold a fact finding hearing is the relationship between SV and his husband of over 9 years, “MB”. The local authority allege that MB has seriously assaulted SV on at least two occasions, in 2019 and 2023, and has been coercively controlling of him throughout their relationship.

The Applicant was represented by Mr Rhys Hadden instructed by Bevan Britten LLP. The First Respondent was represented by Ms Sophie Hurst who was instructed by MJC Law on behalf of the Official Solicitor. The Second Respondent was represented by Mr Parishil Patel KC and Ms Chiara Cordone who were instructed by Welford Solicitors.

The matter was listed before me for a case management hearing on 24 July 2025. At this hearing I reduced the number of witnesses considerably and reduced the time estimate to two days. Many of the witnesses who it had been proposed to call had said they had no recollection of events and were entirely reliant on their notes. There are very extensive contemporaneous notes in this case. It is important to note that there are no eyewitnesses of the alleged assaults, other than SV and MB. All the events relied upon were at least two years ago, so memories of what was said by SV or MB will have faded. Nobody at any stage of the proceedings suggested that SV should give evidence. The case was listed before me on 6 and 7 October 2025.

MB himself has some learning difficulties. He was subject to an intermediary assessment, and I ordered that an intermediary be provided.

Unfortunately, I was told at the start of the hearing that no intermediary had attended on behalf of MB. To be fair, the Court had only approved an intermediary a few days before the hearing, and then Communicourt had required that the request be signed. There was then a delay with the Court signing it. When I asked Mr Patel to contact Communicourt, he was told that no intermediary was available that day and there was unlikely to be one available for the following day.

Mr Patel applied for an adjournment on the grounds that it would not be fair to MB to proceed without an intermediary. He explained that MB was extremely stressed. Mr Patel said that he had tried to explain matters to MB, but MB had found it very difficult to understand or to give instructions. Mr Hadden supported the application for an adjournment of the hearing on behalf of the local authority.

I decided that it was necessary to adjourn the fact finding element of the hearing, given the potentially very serious consequences for MB if certain facts were found. I should note that I am highly sceptical about the benefit that an intermediary would bring, given that MB’s stress was related to the proceedings and the need to give evidence, rather than communication issues. I suspect that if the case had ever got to the point of MB giving evidence the same problems would have arisen, with or without an intermediary.

However, I did raise with counsel the question of whether a fact finding hearing was actually necessary in this case. The issues in the case are welfare decisions about where SV lives, the care and support he receives and what contact he has with MB. For the reasons that I set out below in detail, my view is that the determination of those issues does not require findings of fact.

None of the parties at the hearing before me continued to advance that a fact finding hearing was necessary. By the end of the hearing a detailed Contact Plan between SV and MB had been agreed. However, I decided to issue this judgment because of the need to consider very carefully whether a fact finding hearing is necessary in Court of Protection proceedings; the fact that these proceedings had been ongoing for over two years,; and the possibility that issues about SV and MB’s contact will re-emerge and the importance of having a clear record of what has happened in these proceedings.

I will set out the background history as recorded in the documentation in some detail. This is in order that there is a record of the case in one place. There is a very long history of involvement by various statutory agencies including the local authority and the police in relation to SV and MB. It is not necessary that I set out every part of that history.

SV was born in 1962 and therefore is now 63 years old. MB was born in 1968 and is now 57 years old. Between 1990 and 2011, SV was married to his now ex-wife “SX”. They have two daughters together who are now aged around 29 and 32.

SV and MB appear to have started their intimate relationship in around 2013.

In May 2013, MB was convicted of possession of a knife in a public place and was given a community sentence.

From 2014 onwards various safeguarding concerns have been raised about SV and about MB’s conduct to him. This includes SV’s daughter contacting the police saying that MB is physically and psychologically controlling/abusing SV.

In January 2015, SV alleges to the police that he was assaulted by his “ex-partner” MB. SV gives the police a diary in which he has recorded occasions where he has been allegedly raped by MB during 2014. SV alleges that it was an abusive relationship and MB frequently hit him over the head. In March 2015, the police determine to take No Further Action (NFA) in respect of the rape allegations.

In August 2015, MB pleads guilty to possession of a knife in a public place, battery, and failure to surrender to custody. He is sentenced to 8 months in prison.

On 16 February 2016, SV and MB are married.

In 2017, the GP raises concerns that MB is describing SV as having Downs Syndrome and Autism when, these are not his diagnoses. Concerns are raised by Social Services that MB is controlling SV. The Housing Management Officer at Mansfield District Council makes a safeguarding referral, among other things, on the basis of MB’s controlling behaviour. The officers state that MB appears intoxicated on visits, the property is dirty and unsafe for SV, he is left with an aggressive dog, and SV is described as being frightened.

Throughout 2018, safeguarding concerns are raised, including by a social worker, Sonia Toomey, and by SV’s independent advocate. On 10 December 2018, a safeguarding inquiry is raised by the housing officer because SV is seen with injuries, including two black eyes. SV says that he has fallen over.

On 12 May 2019, a very serious incident occurs, which is the subject of the first allegation in the Schedule. An ambulance was called and the first responder, the East Midlands Ambulance Service (EMAS), arrived at 22:57. SV was found lying in the hallway with a large amount of blood around him. When assessed at hospital, he was found to have a small pneumothorax to his right-side chest; 3 stab wounds, lacerations to the palms of his hand, right leg and left knee lacerations, and a right ear laceration.

MB was arrested for suspected GBH. SV gives differing accounts as to what happened. He discharges himself home. The Police determine to NFA

Further safeguarding concerns were raised in 2020-2021 by SV’s psychiatrist at Millbrook Clinic, saying that MB had refused to allow SV to be seen alone and had interrupted during assessments.

Yet more concerns were raised by the police in 2022.

A further very serious incident occurred on 12 April 2023. The ambulance and police were called to SV’s property at around 19:40. SV was found in the toilet with stab wounds and a knife on his lap. At hospital he was found to have two puncture wounds to his left upper chest-armpit area, a stab wound to the right of his chest and a punctured lung.

MB was arrested on suspicion of GBH with intent. Bail conditions were imposed that MB was not to contact SV. MB denied hurting SV and said that he caused the injuries to himself.

SV’s account changed quite rapidly. He initially said that the injuries were self-inflicted. Then he said he had been hurt by someone else on the way home from the pub.

When SV was interviewed by the police, he said that MB was not in the house when the injuries had occurred and that they were self-inflicted. SV did not allow the wounds to be photographed or permit access to his medical records. SV reported to the nurse that the 2019 injuries had been inflicted by MB but maintained that the 2023 injuries had not been. The staff nurse, Stevie Simpson, raised concerns that the injuries could not be self-inflicted as SV would not have range of movement to stab himself with enough force to cause injuries. The police investigation concluded again, with NFA.

In respect of both the serious incidents SV said, at least at points, that they were self-inflicted and did not support any further investigations. However, given SV’s very obvious vulnerabilities it is highly unfortunate that neither the police nor the local authority got a report from the treating clinicians setting out an assessment of the injuries and the likelihood or otherwise of them being self-inflicted.

On 26 June 2023, SV was discharged from hospital to Z Placement.

On 28 July 2023, proceedings commenced in the Court of Protection by the local authority.

From May-July 2024, SV had some supervised telephone contact with MB. Apart from that, SV has had no contact with MB since 12 April 2023.

On 7 July 2024, SV reports to carer at Z Placement that MB used to hit him and “he did that thing you know where I ended up in hospital”.

On 10, 15, 24 July 2024, SV reports to social worker, that he had been hit, stabbed, and raped by MB during their relationship.

On 12 August 2024, SV states to two carers at Z Placement that he had been raped and stabbed by MB.

On 5 September 2024, SV writes note stating: “[MB] Punch me in the stomach we fell out after Drink. [MB] stabbed me all over my body Back of The Legs and cut my hands as well. [MB] rapped me [sic] 1 night about 3 times in the past.”

SV’s capacity is no longer a contentious issue. A single joint expert, Dr Carthy (consultant psychiatrist), has provided two reports in these proceedings, dated 21 August 2024 and 28 October 2024. The second report was prepared following receipt of written questions by MB and the Official Solicitor. In short, his conclusions are:

I have three sources of information about SV’s wishes and feelings. The evidence of SV’s social worker, who has been SV’s social worker for over two years and has met him on multiple occasions. The Official Solicitor, acting through Ms Bradley who has met SV on a number of occasions and visited him shortly before the hearing. My own visit to see SV on the afternoon of the first day of the hearing, accompanied by Ms Bradley.

Ms Bradley, on behalf of the Official Solicitor, met SV on 17 September 2025 at his supported living placement “Option 4”. SV seemed to be broadly happy with the accommodation at Option 4. He liked it more than his previous placement at the care home, because it was quieter and because he was able to go out and choose his own dinner. At one point he said “I like it here and I like the area. The things that bothered me there are still bothering me here.” This seems to be a reference to “the voices” which SV says he has been hearing.

SV said he had not seen his daughters for a while, but he hoped they would visit. He spoke briefly about other family members.

SV was then asked directly about seeing MB.

“AB asked SV whether it is ok to talk about [MB]. SV agreed. AB said that she understands SV has spoken to (SV’s social worker) about seeing [MB]again. AB asked SV whether he would like [MB]to visit him at the flat. SV said “he doesn’t know where I live. He didn’t know about the other place.” AB asked SV how he feels about that. SV replied “he’s a good friend isn’t he? We could meet in Mansfield or Nottingham.” AB asked what they could do there. SV said “just walk around. AB asked whether staff would go with him. SV said “they would do the first time. That’s what Jo said. I’m alright at the moment. We used to go to pubs together in Mansfield.” AB asked SV how he found that. SV replied “alright. We used to go to the same pubs. We knew a few people down there.” AB asked SV whether he would like to do that again. SV responded “I wouldn’t mind seeing him again one day. It’d be nice to meet him for a bit.” AB asked SV what he means by ‘one day.’ SV said “well I’ve waited for a while now but I could meet him and my friend. We used to go out with her for a few hours and her family.” AB asked SV if he is talking about [SV’s friend]. SV said yes and added “her dog was nice.” AB asked SV whether he has seen [SV’s friend] since he left the bungalow. SV said no. AB asked if he would like to. SV said “I wouldn’t mind. We got on well.” AB asked SV whether he would like her to ask the social worker whether it is ok. SV replied “no, I’ll just pop down and visit one day.”

“AB asked SV whether he would like to speak to [MB] on the phone before any arrangements are made for them to meet up. SV said “I’ve already spoken to him. A longtime ago now.” AB explained to SV that it is currently September and asked whether he would like to see [MB] before the end of the year or wait until next year. SV said “this year’s alright. I’ve not had a chat with him for ages.” AB asked SV whether she should ask the social worker to make those arrangements. SV replied “yes. I don’t know if it will happen. Jo said someone will have to be with me, I can’t meet him on my own.” AB asked SV whether he would like to meet [MB] alone. SV said “I wouldn’t mind but not at first. It’s a long time ago now. He noticed me down Mansfield and got talking.” AB asked SV if he is talking about before they lived together. SV said yes.

SV said “if you get his number I could give him a ring now and again. I’ve been asking for a phone. I’m getting an iPad.” AB asked whether he wants a phone with internet or just to call and text. SV said “just call and text. But if internet is in here, I could use the phone for that.” AB asked SV who he would call and text if he has a phone. SV said “could call [MB] couldn’t I? I’d make new friends. Call family.”

The evidence from Ms Bradley’s note is broadly consistent with the evidence of SV’ and from my own visit.

As set out above, SV lacks capacity to determine where he lives and his contact with MB. He is however capable of expressing his wishes and feelings. SV is palpably vulnerable and nervous of expressing his views. I accept, from the evidence, that he is easily suggestible and therefore what he says has to be treated with some caution. The evidence is that he can take some time to process information and respond to new situations, therefore there is a need to give time, sometimes weeks, to understand his reactions to events.

Having said all of that, SV’s views on where he wishes to live are both clear and have been consistent. He likes and is happy at Option 4 and wishes to remain there. When I spoke to him, he was plainly worried about whether he might be told he had to leave. His principal concern was that he should be allowed to remain there. I did what I could to reassure him on that point.

SV’s wishes and feelings in respect to contact with MB were less clear. MB has raised concerns that SV has been influenced by social workers and other professionals against him. I have not seen evidence that suggests that is the case. It is however important not to prompt or lead SV in his answers because he is suggestible.

When asked who he wants to have contact with SV consistently says his daughters. He requires some prompting to say who else he wants contact with, but when prompted seems to want to see MB. He is clear that he does not want to live with MB, but he seems to want some limited and controlled contact. When I asked him about contact with MB, after having tried to avoid asking direct questions, SV appeared to be content to start with letters or voice notes, although he said he was not sure that MB would be very good at writing letters.

It is exceptionally difficult to tell whether SV is hesitant in this regard because he does want to see MB but is conscious that professionals think he should not; or alternatively because he does not want to see MB but is too nervous to say so.

In my view the only way to take the issue over contact with MB forward, is for very gradual, and closely supervised, contact to commence and SV’s reactions to be carefully monitored and considered by his multi-disciplinary team. This is in effect what has now been agreed in the Contact Plan. I will return to this in my Conclusions.

Finding of fact hearings are relatively rare in Court of Protection cases. The need for them was considered by Munby P Re AG[2015] EWCOP 78 at [29]-[31] where he confirmed that, unlike in care proceedings in relation to a child, there is no requirement to establish “threshold” in the case of proceedings in relation to an adult in the Court of Protection.

Given that there is no threshold requirement in the MCA the question arose as to whether and when factual findings would be necessary. The former President expressly endorsed the pre-MCA 2005 decision of Wall J (as he then was) in Re S (Adult’s Lack of Capacity: Care and Residence)[2003] EWHC 1909 (Fam) at [18] and [21] (emphasis added):

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified in para [16] would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.

21 Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case, it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court's paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

In An ICB v G & Ors[2024] EWCOP 13 Hayden J held at [22]-[23]:

“Fact-finding hearings at Tier 3 in the Court of Protection are extremely rare. Junior Counsel in this case tell me that they are conducted more frequently at Tier 1 and 2, especially at Tier 2. I have been surprised to hear that. I can see no obvious reason why this should be the case. For my part, I do not think that in this sphere of law, they have quite the same practical utility that they can have in the Family Court. In the Court of Protection, the range of welfare options for P is frequently very limited and unlikely to vary very much in response to a shifting factual matrix. In determining whether a fact-finding hearing should be convened, Judges must consider, rigorously, what real purpose it is likely to serve i.e., from the perspective of informing decisions relating to P’s welfare. Such hearings are inevitably adversarial and invariably generate further hostility. This is inherently undesirable. Delay in reaching conclusions is inimical to P’s best interests. In a very pressing and literal way, time is often not on P’s side. Delay can only be justified if it is identifiably purposeful … However, I am satisfied that the gravity of the allegations here and the nature of the family’s responses has made such a hearing unavoidable. It has clear resonance for the central welfare issues i.e., as to where G will live and whether or to what extent it will be in her best interests further to promote her relationship with her family. This disagreeable truth, I very much regret to say, must be confronted.

As I have intimated above, fact-finding hearings in the Court of Protection, as in the Family Court, require tight judicial control and an unswerving focus both on their scope and ambit as well as on purpose…” [emphasis added]

Cobb J (as he then was) considered the need for fact finding hearings in CoP in LBX v TT [2014] EWCOP 24 at [44]-[51]. He referred to the overriding objective in the Court of Protection Rules to deal with cases justly, expeditiously and fairly [44] and the duty in rule 5 to actively manage cases, including considering the proportionality of the costs incurred. Cobb J then went on to apply the caselaw on fact finding in Children Act 1989 cases by analogy, see [46] to [51].

I agree with Cobb J that the issues that a judge in the Court of Protection will have to consider in deciding whether to order a fact-finding hearing are similar, although not precisely the same, as those in the Family Court when deciding the same question.

In the context of Children Act 1989 cases there are some well established tests for whether a fact finding hearing should be directed, as set out by the Court of Appeal decision Re H-D-H (Children) [2021] 4 WLR 106, which reiterated the principles espoused in A County Council v DP [2005] 2 FLR 1031, at [22] Peter Jackson LJ said;

It is also relevant to consider the tests set out by the Court of Appeal for holding fact finding hearings in private Family Law cases in K v K[2022] EWCA Civ 468at [66]:

“At the risk of repeating what has been said at [37] in Re H-N and at [41] above, the main things that the court should consider in deciding whether to order a fact-finding hearing are: (a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order, (b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child, (c) whether fact-finding is necessary or whether other evidence suffices, and (d) whether fact-finding is proportionate.”

In my view the overall approach to whether or not to hold a fact finding hearing is analogous between Children Act cases and Court of Protection cases.

The facts which are sought to be found must have a direct impact on the welfare decisions that need to be made in respect of P. The fact finding must be “necessary” for the determination of those welfare decisions. The fact finding exercise must be proportionate to the issues that need to be determined. In determining proportionality, the likely cost to public funds, the time taken and the impact of delay on P are all relevant considerations.

On the issues in this case, as they now stand, it is neither necessary nor proportionate for a fact finding exercise to take place. There are two matters for determination about SV’s best interests under the MCA 2005 – where should SV live, the care and support he receives and what contact should he have with MB. It is also important to have closely in mind that SV and MB are married and, therefore, any order that requires them not to live together or limits/prevents their contact, is an interference in their Article 8 ECHR rights (the right to family life). However, Article 8 is a balanced right, and an interference can be justified under Article 8(2).

Critically here, SV has made it entirely clear that his wish is to remain living at Option 4. In the light of those clearly expressed and consistent wishes it is inconceivable, quite apart from the safeguarding issues, that any Court would order him to leave Option 4 and live with MB. Albeit extremely late in the day, MB now accepts that there is not going to be an order of the Court of Protection that SV live with or be cared for by him. Therefore, no fact finding exercise is necessary for the determination of that issue.

In respect of contact, again, the answer lies to a considerable extent in SV’s wishes and feelings. In principle, the Court could order that a married couple, where one party lacks capacity, cannot have contact with each other. However, that would be a highly intrusive order where the Court would have to consider justification very carefully. If contact can be managed safely, so that SV’s physical, psychological and emotional well-being can be protected, and SV wishes for some contact, then in my view the correct approach is to seek to facilitate such safe contact.

Albeit in quite a limited and very cautious way SV appears to want to at least try some contact with MB. He spoke to me about some form of “remote” contact first, and then maybe seeing MB once or twice per month. So long as this can be facilitated in a way that gives SV the time and space to process the experience and then be in a position to express his wishes and feelings, in my view it is in his best interests to test out some limited contact.

The parties have now agreed a Contact Plan that leads from some indirect contact, in the form of either cards or letters or voice notes, to trialling supervised contact if it appears that is what SV wishes. If this all goes well and after being given time SV wishes to continue with contact, then there can be a gradual build up of contact. The Contact Plan includes clear expectations upon MB about his behaviour both to SV, but also to the professionals who work with SV and who will supervise contact. There are also a number of topics which MB has agreed not to discuss with SV, such as where SV lives and the ownership of some jewellery which seems to be disputed.

It may be that the Contact Plan fails and either SV makes clear that he does not wish to continue, or MB finds it impossible to manage his behaviour during the implementation of the Plan. However, given that SV and MB are married, and SV’s apparent wishes, a failure to at least try to re-establish contact would not be justifiable under Article 8(2).

In determining that no fact finding hearing was necessary here I have taken into account; (1) SV’s recently expressed apparent wish to have some contact with MB; (2) the fact that such contact can be managed safely and in a way that fully protects SV through the Contact Plan; (3) that a fact finding hearing would take two more days of the very limited time available for Court of Protection hearings at Tier 2 level; (4) the disproportionate cost in public funds given the very limited issues that actually needed to be determined and the fact that all the lawyers in the case are paid in some way by public funds.

Therefore, I will order that SV continue to live and receive care and support at Option 4 and that contact with MB is progressed in accordance with the Contact Plan.