SW v Nottingham City Council & Anor

This is an appeal against the decisions of HH Rogers, sitting in retirement, after a fact finding hearing in the Court of Protection. The hearing took place over three days on 14, 15 and 20 May 2025 and judgment was handed down on 19 August 2025.

Unfortunately, there was some delay in processing the appeal. By order of Theis J dated 3 December 2025 the application for permission to appeal was listed before me on 11 December 2025 with the substantive appeal to follow immediately if permission is given. I heard submissions from the parties directed to permission and to the substantive appeal and reserved my judgment.

The Appellant is SW, the husband of the protected party JW. JW supports the appeal. The Applicant in the proceedings, and the First Respondent to this Appeal, is Nottinghamshire County Council (“NCC”). There is a Transparency Order in force. SW was made a party to the proceedings at an early stage.

I have been provided with an Appeal Bundle which includes the judgment and order under appeal, expert evidence from Dr Todd, Clinical Psychologist, and a Scott Schedule of Allegations prepared by NCC for the finding of fact hearing. I have also been provided with an earlier appeal judgment by HH Rogers.

There are thirteen grounds of appeal but the Appellant’s central challenges are that the Judge failed to make findings of facts by reference to the findings sought or at all (ground 6), failed to weigh the evidence in relation to the findings sought (grounds 7 to 10) and so failed to give adequate reasons.

JW and SW have been married now for over 29 years. JW is aged 55 and SW is a similar age. He was diagnosed with muscular dystrophy in childhood and has for some years been a wheelchair user and is now largely bed-bound. SW has been diagnosed with OCD and long-standing depression. JW has been assessed by Dr Todd as having “borderline intellectual functioning.” He assessed her full-scale IQ as being 79 which places her in the 8^th percentile. They lived together in their own home, until JW was admitted to hospital in July 2023 with a very serious leg infection which could have been fatal if not treated with urgency. SW could not be left alone and so he was moved to a care home. On SW’s discharge from hospital she was moved to the same home. By then she too was a wheelchair user. After some time living together in the same care home, the home raised concerns about SW’s conduct including his conduct towards JW which was thought to be controlling and coercive. The care home gave notice to JW and SW. This is what resulted in the Local Authority making its application to the Court of Protection in April 2024.

In its application, NCC sought declarations in relation to JW’s capacity to make decisions about residence, care, contact with others including SW, and use of social media and the internet. DJ Buss appointed an Accredited Legal Representative (“ALR”) for JW and made interim findings that she lacked capacity to conduct the litigation and make the decisions to which I have referred. On 16 May2024, DJ Buss made an interim best interests decision that JW should live in a separate placement from SW, and restricting contact between them. He gave the parties permission to instruct a psychologist to report on “diagnosis and capacity in the domains of residence, care, contact and the use of internet/social media.”. Dr Todd was instructed and produced a first report dated 24 August 2024. Meanwhile SW moved to a different care home.

In that first report, Dr Todd said that his instructions came from NCC. He does not refer to joint instructions. He quotes at length from a “summary of background” given to him by the solicitor for NCC which sets out a number of reports and concerns about SW’s conduct and its effect on JW. At his meeting with JW, Dr Todd relayed all these concerns and allegations to JW but she either did not accept them or she took responsibility herself for matters such as the failure to seek medical attention for her infections. She described a loving relationship with SW and that she missed being with him. Dr Todd’s conclusions included:

“[JW] severely minimised her care needs in relation to her leg ulcers. Furthermore, she severely minimised any risk of living with her husband [SW]. This meant that she was unable to use and weigh the benefits of the different residential options in terms of the care and support they are able to provide her with. [JW] was adamant that she wanted to return to the bungalow and live with [SW]. Her mental capacity is impaired by borderline intellectual functioning.

…

[JW] severely minimised the concerns of the Local Authority about the negative impact of [SW]’s contact with her. [JW] had a limited understanding of the risks people unknown to her may pose to her. She was, therefore, unable to use or weigh the positives and negatives of contact with [SW] to be able to decide on the nature and degree of contact with him and unable to plan how to keep herself safe from people unknown to her. [JW]’s mental capacity is impaired by borderline intellectual functioning.”

In his summary of conclusions Dr Todd said that JW “does not have capacity to make an informed decision about contact with others, the internet and social media owing to borderline intellectual functioning.” He made similarly worded summary conclusions in relation to decision-making about residence, care and support.

DJ Buss then considered further case management at a hearing on 18 September 2024. The parties all agreed that a fact finding hearing should be listed before further expert evidence on capacity could be sought but DJ Buss disagreed and held that a fact finding hearing would generate excessive delay and was not necessary. He also took the view that contact should be as natural as possible and not subject to supervision or restriction save that JW should comply with health appointments. Nevertheless he ordered that all telephone contact should be recorded.

NCC appealed the order made on 18 September 2024 and, on 3 December 2024 HH Rogers upheld the appeal and gave further directions. In reversing the decision of DJ Buss not to hold a fact finding hearing, HH Rogers said:

“In this case, the central question of JW’s ability to make any relevant decision is, in my judgment, and obviously objectively, inexorably linked to her ability to exercise independent thought including, but obviously not limited to, the ability to weigh up any particular issue. If, as asserted here, upon apparently credible evidence, her very decision-making process is undermined by the coercive and controlling behaviour of SW, it seems to me inevitable and unarguable to the contrary, that the Court has to be satisfied, one way or another as to whether or not the alleged coercive and controlling behaviour actually exists … It cannot proceed on the basis of assumptions or concerns and it cannot treat the allegations as in some way part of the factual background without resolving them. In short, in what is likely to be a small minority of cases a fact-finding hearing is an essential pre-requisite to the property [sic.] determination of any particular capacity domain. This case, in my judgment, plainly falls within that small minority of cases.”

HH Rogers also held that “the apparently proportionate step of asking further questions” to Dr Todd “would not in this case have produced the clarity that in many cases it would.” He reasoned that, without seeking to resolve disputed matters of fact, Dr Todd “placed credence upon the assertions and used them as the basis of his discussions with JW.” He said that if, on questioning, Dr Todd were to say that his opinion would remain the same “whether or not there was coercive control, that begs the question as to why he put the assertions to JW and seems to have relied on them in forming his opinion. On the other hand if Dr Todd responded that “it could make all the difference, then that simply reinforces the dilemma for the court.”

Notwithstanding his comments about questions to the expert, HH Rogers gave directions on 3 December 2024 including that the parties had permission to put questions to Dr Todd, and requiring NCC to set out a schedule of allegations upon which findings are sought.

On 30 January 2025 Dr Todd gave his supplementary report which answered questions put to him by the parties.

“Due to the nature of this case meaning there are a range of issues where no finding of fact has been made, I made the decision to rely on the documented evidence rather than speak to anyone else directly in the case. My role was to assess [JW]’s mental capacity from an independent perspective and speaking to a range of people about disputed facts has the potential to compromise my independence. There was sufficient documented evidence in this case to be able to put to her and gain her views rather than needing to obtain further evidence. My priority was to gain [JW]’s views rather than additional views of others….

I was aware no findings of fact had been made and did not form the view that she had necessarily been subject to coercive and controlling behaviours. However, it must be reconsidered in any finding of fact hearing that [JW]’s borderline intellectual functioning, will make her more susceptible to coercive and controlling behaviour and will mean she struggles to identify the negative consequences of it, when on the receiving end of it. This is the case for the many people with borderline intellectual functioning. Should a finding of fact hearing find that the allegations of the LA are unsubstantiated, in my professional opinion, [JW] would not lack capacity around contact with her husband as my current opinion relies on the fact she is unable to understand, use and weigh the LA’s concerns.”

The decisions made to this point in the proceedings are not under appeal but it will help to understand the nature of the appeal against the later decision in August 2025 if I make some observations about the evidence of Dr Todd, the appeal decision and case management for the fact finding hearing.

The Supreme Court's decision in A Local Authority v JB [2021] UKSC 52, [2022] 3 All ER 697 ("JB"), provides a clear structure for making determinations about capacity. At paragraphs [63] to [77] of his judgment in JB, Lord Stephens, with whom the other Justices agreed, endorsed the judgment of McFarlane LJ in York City Council v C [2013] EWCA Civ 478; [2014] Fam 10. The Mental Capacity Act 2005 (“MCA 2005”) s2(1) provides a single test for capacity which falls to be interpreted by applying the remaining provisions of ss2 and 3:

"For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."

The "material time" is the specific time when the decision has to be made. Having identified the matter in respect of which a decision is made, and the information relevant to the decision, which will include the reasonably foreseeable consequences of making or not making the decision, the first question is whether P is unable to make a decision for himself in relation to the matter (the functional test). If so, then,

“[78] … the second question that the court is required to address under s 2(1) is whether that inability is 'because of' an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P's inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P's mind or brain.

[79] The two questions under s 2(1) are to be approached in that sequence."

Here, the matters in relation to which a decision needed to be made included residence, care and contact with others, including contact with SW. I understand that since both JW and SW are now wheelchair users, there is no realistic option of them returning to their bungalow to live together. There might be an option of supported living in the community with both living together. The decisions regarding contact with SW include decisions about contact now that they are living in separate care homes, the options of telephone and face to face contact, and contact in the longer term if they were to live together or closer to each other than they are now.

The information relevant to decisions about contact with SW would include the risks and benefits of contact with him by telephone, face to face visits, or much more extensive, unsupervised contact. One might want to have contact with a person for altruistic purposes – to help them – especially if that other person is a life partner. But, if that other person poses a risk of harm to P through contact, then it is proper to question whether P can understand, retain, and weigh or use information about that risk.

Here, a key question raised is whether JW can understand, retain, and weigh or use information about the risk of harm she would be exposed to on contact with, or residing with, SW. In her discussions with Dr Todd, JW said that she did not view their relationship as being one in which she was the victim of control or coercion. HH Rogers was concerned that, without determinations of fact, it could not be known if her response was due to the fact that the relationship did not involve coercion and/or control or because it did, but she was unable to understand that it did.

In this appeal I am not concerned with Dr Todd’s conclusion that JW’s “borderline intellectual functioning” met the diagnostic test, nor the potentially nuanced question of the causal nexus between her inability to make decisions as to care, residence and contact, and her borderline intellectual functioning. However, being a victim of coercion and control is unlikely to be found to be an impairment of or a disturbance in the functioning of the mind or brain. A victim of coercion and/or controlling behaviour may or may not lack mental capacity to make certain decisions including contact with the person who exercised control or coercion. A person who otherwise has mental capacity but is who is so subjugated by abusive behaviour that their will is overborne, may be the subject of an application to the High Court to exercise its inherent jurisdiction to protect the autonomy of such a person.

Questions might have been put to Dr Todd about whether having “borderline intellectual function” operating at the 8^th percentile, can satisfy the diagnostic test.

The schedule of findings sought by the Local Authority did not correspond neatly to the “information” put to JW by Dr Todd. The allegations in the schedule were also highly relevant to determinations about JW’s best interests. A composite hearing dealing with both capacity and best interests might have been a better way forward, but this is not an appeal against case management decisions but against the finding of fact judgment and order.

I cannot find any input from HH Rogers as to the schedule of findings sought. It was open to him to narrow the issues or to seek a different presentation of them for the hearing but he did not do so. The schedule produced by the Local Authority ran to 20 pages. It contained seven allegations:

Each allegation in the Scott Schedule was accompanied by numerous references within the hearing bundle to the evidence relied upon, including witness statements. In family proceedings, the courts have considered how best to present allegations of fact on which a party seeks findings, in particular where the allegation is of a pattern of behaviour said to constitute controlling or coercive behaviour. In Re H-N [2021] EWCA Civ 448, the Court of Appeal said that when an allegation of controlling and/or coercive behaviour is alleged, that should be the central allegation to be considered and “Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour” In Re JK [2021] EWHC 1367 (Fam) and Re B-B [2022] EWHC 108 (Fam) suggestions were made about how to draft allegations of fact in such cases. On the one hand it is unhelpful to have a long Scott Schedule containing multiple allegations about individual events. On the other hand a simple, unparticularised allegation that a person has been guilty of coercive or controlling behaviour is not helpful. It might be helpful to have a narrative statement of the relationship but include some specific examples of abuse and evidence as to when it started and ended, if it has ended. It might assist to group allegations under different headings of control or coercion.

Whether the 20 page schedule of allegations could have been differently drafted and whether it was necessary and proportionate to hold a three day finding of fact hearing in order to assist in determining capacity, that is what happened. I am not hearing an appeal against case management but against the finding of fact decision itself.

The Judge referred to the scope of his enquiry at paragraphs 4 to 9 of his judgment He emphasised the “narrow and well defined limits of a fact-finding hearing” but noted that “I have to engage with the issue of coercive and controlling behaviour and inevitably therefore must go a little beyond the normal narrow boundaries of fact finding.” The Judge then referred to a legal framework document prepared and agreed by Counsel. He acknowledged that he should not devolve his responsibility to identify and apply the correct legal principles but he agreed with the document. He expressly referred to the definitions of controlling behaviours and coercive behaviour set out in the Family Procedure Rules PD 12J, although he did not recite them in the judgment.

The Judge referred to the submissions of the parties and then described his task:

“In my judgment my task is indeed two-fold. I must establish the basic facts or patterns of behaviour. I must also look at SW’s motivation and/or intention and judge the impact on JW in terms of harm, abuse and impact. I must take account of the totality of the evidence and only make basic factual findings or the more descriptive finding of coercion and control if satisfied on the balance of probabilities, the burden remaining firmly on the local authority throughout.”

The Judge then turned to the evidence. Firstly, he referred to the large bundle of documentary material and witness statements:

“The schedule sets out in great detail the source material within the trial bundle and that speaks for itself. I need not repeat it. I will however briefly review the oral evidence and my impression of the witnesses.”

As I have already noted the Scott Schedule referred to material within the bundle which, it was alleged, supported each of the seven general allegations. For example there are ten different documents within the bundle referred to as support for the first allegation. Some of those documents are statements by witnesses who gave oral evidence.

The Judge then gave pen pictures of the evidence of thirteen witnesses who gave oral evidence. As an example he said this of one oral witness:

“[X] is a social worker. Her evidence was somewhat limited as much material was outside of her direct knowledge. That said, I found her helpful and clear. She found SW frequently negative in attitude and his behaviour could be relentless. Much of the written material produced by her included useful insights into the dynamic of the relationship and the dominance of SW.

And of another:

“[Y] is an occupational therapist. Her evidence was sympathetic and understanding and, in my judgment, she gave a balanced account. I accept her evidence as to SW’s intensity, his tendency to speak continuously as a form of control and his domineering attitude. I also accept her evidence that SW takes it upon himself to speak on JW’s behalf without giving her a chance. I find she tried to help SW, but his demanding and relentless behaviour was a barrier.”

The Judge then turned to the evidence of SW acknowledging his physical disability and his diagnoses of OCD and depression. He said that:

“It was not easy for him to give evidence or to be the object of so much negative evidence about his behaviour. He was at times emotional. I am quite sure he is a complex personality. I do not underestimate the stress of giving evidence and I have no doubt it is difficult to be self-critical or to make what might be regarded as obvious concessions.”

The Judge noted that in his written evidence SW had denied just about every allegation made about his conduct. As to his oral evidence:

“I found his evidence on the whole fairly superficial and at times evasive. He was reluctant to engage with the obviously credible evidence of the eye witnesses always seeking to minimise the seriousness of the situation and limited the potential for harm to JW. What was striking was that there were not really outright denials so much as justifications. He told me in terms at the conclusion of his evidence was that he was not saying witnesses had invented evidence but that his conduct had been misunderstood.”

The Judge continued:

“Although he articulates a primary concern for JW’s welfare, he is, in my judgment, essentially self-centred and prioritises his own needs. He does so, in my judgment, in part at least out of fear of being isolated and unsupported. He avoids personal responsibility and seeks to blame others. He uses a mixture of relentless criticism and some bullying and intimidation, although not physically. He is clearly manipulative. There were even examples of that in the hearing and his deferential and humble demeanour in my presence is atypical.”

The Judge then noted that he had been asked by Counsel for SW to clarify this part of his judgment and so, with some reluctance, he did so, saying:

“SW’s demeanour and presentation were obsequious and self-pitying. In his answers he portrayed himself as the victim of circumstances rather than accepting any significant degree of responsibility or culpability. He was trying to attract my sympathy. When talking about his use of a wheelchair, he added gratuitously that he had not walked for 30 years. When being questioned about missed or cancelled appointments, his response was deflective by saying that nurses deferred visits too as if that was some kind of explanation for his default. He described himself as being lectured rather than interviewed by professionals. These are, in my judgment, examples of manipulative answers deployed in the hearing in a manner designed to influence me to see him essentially as a victim. I stress that I place no reliance in my assessment upon SW’s physical infirmity or the fact that he gave his evidence from his bed. They are genuine and matters beyond his control. I also ask myself whether the demeanour described can be attributed to SW’s documented mental ill-health in its various aspects. I am satisfied it cannot.

Reaching a conclusion as to the evidence, the Judge held:

“39.

To the extent that he made specific denials of factual matters, where there is clear evidence of the sort I have identified in the preceding paragraphs, I prefer that to his denials and it follows that on such matters the local authority has satisfied me on the balance of probabilities that the factual accounts are made out.”

The Judge then concluded:

“41.

In the six specific areas raised by the local authority, I find they have made out their case in five. The exception is in relation to financial control. SW undoubtedly made many financial decisions including on behalf of JW and he held the purse strings. That is culturally and socially often the case. I find it less easy to say that the division of responsibility in relation to finances is an example of one party taking control to the detriment of the other. There are worrying aspects undoubtedly in this case but on balance I am unable to find that the local authority has discharged the burden in respect of this relatively minor area of functioning. It must be kept under review, however, in the wider context of JW’s best interests.

42.

More generally, this was and would remain a very one sided relationship if the domineering and controlling approach so often adopted by SW continued. I have no doubt at all that his behaviour over time represents a course of conduct that has harmed JW, physically and emotionally. Its impact is severe. It has had the immediate and potentially long lasting consequence of disempowering JW. Her autonomy has been severely compromised and her decision making abilities undermined.

43.

Looking at the matter in terms of the first stage of the test, the evidence of fact and impact is clear and indeed, in my judgment, overwhelming.”

The Judge concluded therefore that allegations one to four and six of the schedule had been proved. He then noted, referring to allegation seven, that the Local Authority invited him to “go further” and characterise SW’s conduct as controlling and coercive and amounting to abuse. He said he found this a difficult question and accepted that it might not matter whether the behaviour was so categorised. I understand that comment to refer to the purpose for which the findings were being considered: to help determine JW’s capacity. The Judge briefly commented on the relationship between JW and SW, and the drivers for SW’s behaviour. He then concluded:

“48.

In consequence, I am persuaded that the factual conduct described is properly categorised in part as coercive and controlling. It is not classic domestic abuse where the intent of the perpetrator is clear and single minded, namely to harm and control the victim. This case is much more complex and subtle. Some of SW’s motivation is distorted but not in itself malign. It is driven by his personality. However, a significant and conscious element is deliberate. On many occasions SW has chosen to prioritise his needs over JW’s. He is indifferent to the impact upon her. He is comfortable in an unequal relationship. To that extent his motivation is intentional and so it is proper to characterise this situation as having a significant abusive element.”

An appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which exceeds the ambit within which reasonable disagreement is possible and is plainly wrong.

The appellate court must consider the judgment under appeal as a whole. In Re F (Children) [2016] EWCA Civ 546 Munby P summarised the approach as follows:

"22.

Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law…

23.

The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account…. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".

The appellate court should be slow to interfere with findings of fact. As Lewison LJ said in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, at paras114 to 115:

"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them….The reasons for this approach are many. They include,

i)

The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

ii)

The trial is not a dress rehearsal. It is the first and last night of the show.

iii)

Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi)

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.

115.

It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."

More recently Lewison LJ again set out the principles to be applied in Volpi and ors v Volpi [2022] EWCA Civ 464 at [2], principles cited by Baker LJ in T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475:

"i)

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii)

The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii)

An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv)

The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v)

An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi)

Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."

The Appellant, supported by JW, refers the Court to caselaw on the need for a Judge to give reasons for their decisions as a requirement for compliance with Art 6 of the ECHR and natural justice. Ms Shield for SW and Ms Perrett and Ms Reed for JW set out a number of judgments giving guidance on this issue. I shall refer to two. Although they are decisions in family cases, they appear to me to be applicable to a judgment in the Court of Protection. In Re A (A Child: Adequacy of Reasoning) [2019] EWCA Civ 1845 (“Re A”), an appeal was allowed on the basis that ‘the judge's conclusions as eventually expressed were inadequately reasoned and further that there are too many actual or arguable deficiencies in the structure and content of the judgment for it to be upheld’ [para.36]. Lord Justice Peter Jackson, giving the leading judgment, stated at [34]:

“I would accept the submission that the judgment contains within it evidence that could have been gathered up and assembled to justify the findings contained in the judge's clarification at [89]. I would also accept that a judgment must be read as a whole and a judge's explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge's conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.”

In Re W (Fact Finding: Hearsay Evidence) [2013] EWCA Civ 1374 (“Re W”), the Court of Appeal allowed an appeal, in part due to the inadequacy of the reasons provided. At paragraphs 31 and 32 Lady Justice Black, giving the leading judgment, stated:

“31.

Miss Heaton submitted, quite rightly, that it is impossible for a judgment to set out all the nuances arising in the hearing or to deal with every aspect of the evidence that the judge has weighed in the balance in arriving at conclusions. This has been underlined by higher authority than me and I have made every allowance for it. However, it does have to be apparent from the judgment that the judge has taken into account all the central features that are relevant to the decision that he or she is making, both the positive and the negative. What that meant here was, in my view, that the judgment had to show first, which features of the evidence the judge considered to be significant in pointing towards there having been abuse, secondly that these features had been considered critically in the light of the features that undermined that hypothesis or pointed away from it, and thirdly, why it was, having weighed all of this up, the judge found the local authority’s case established.

32.

It may well be that Judge Davies did go through this process in arriving at her conclusions but unfortunately it is not possible to be confident from the judgment that the evidence was weighed correctly, warts and all. I therefore concluded that the finding made by Judge Davies in relation to T would have to be overturned.”

There are thirteen grounds of appeal which I address one by one below. In essence the Appellant contends that the Judge failed to provide any analysis of the evidence and failed to give any or any adequate reasons for his conclusions. The Judge did not identify SW’s case, where his evidence differed from that relied upon by the Local Authority, and did not explain how he had resolved those differences. The Judge did not weigh the evidence “warts and all”. Any analysis was superficial and the approach taken was confused. There was no specificity about findings made and there was no consideration of the wider context in which SW’s behaviour ought to have been analysed. As a consequence any conclusion that he was guilty of coercive and controlling behaviour is unsustainable.

At the risk of doing a disservice to Mr Johnson’s submissions he took the Court through the judgment and answered each ground of appeal by reference to it. He contended that the appeal has no prospect of success because the grounds did not reflect the judgment given but rather the judgment SW wishes had been given.

It is true that the Judge did not set out the history of the relationship between SW and JW. The background information I have set out at the outset of this judgment was largely taken from the answers of Counsel to my questions at the hearing. However, the Judge was very familiar with the case having conducted other hearings including the appeal in December 2024. He did clearly refer to the relationship between SW and JW. He described some of the dynamics of the relationship and he certainly made observations about SW’s role in the relationship. The Judge acknowledged SW’s OCD and depression as well as his physical disability.

I have seen the legal framework which the Judge adopted. It might have been advisable to have summarised some of the key elements of it in his judgment but, reading the judgment as a whole, it is clear to me that the Judge held in mind and applied the burden and standard of proof, the definitions of coercive and controlling behaviour, that he had to make determinations on the evidence not on speculation, and that he had to have regard to the evidence as a whole. I cannot identify any errors of law in his approach to the fact finding exercise.

A fact finding judgment does not involve the exercise of a discretionary power by the Judge. Of course, there is a range of conclusions that the Judge might reach but an allegation is either proved or not. An allegation of controlling or coercive behaviour is an allegation that has to be proved just as any other allegation. It refers to a pattern of behaviour rather than a one-off incident but a finding that it is proved, or not proved, does not involve the exercise of judicial discretion, properly described.

As this ground of appeal acknowledges, the Judge did remind himself that he must base his judgment on evidence of fact and avoid relying on opinion evidence from lay witnesses. It does not follow that it was an error of law or fact to have agreed with the opinion of a witness. For example, if a witness gave an account of an interaction with SW and expressed a view that it was an example of intimidation of control, the Judge was entitled to agree with that analysis. It does not follow that he relied on their opinions as opposed to agreeing with them. A fair reading of the judgment does not permit the conclusion that he relied on opinion evidence from lay witnesses as opposed to agreeing with their observations.

Counsel for JW stated that this was a repetition of grounds 1 and 2 (above) and 9 and 12 (below). I agree. At the risk therefore of repeating myself, it is clear from the judgment that the Judge did consider wider issues when determining whether the relationship was abusive. He made findings on allegations one to six in the schedule and then expressly considered whether allegation seven, the allegation of abuse by control and coercion, was established. In doing so he analysed the couple’s relationship and the drivers for SW’s behaviour, albeit with brevity. As more fully discussed below, some of allegations one to six included allegations of coercion and/or control but reading the judgment as a whole, the Judge clearly did consider the broader question of control and coercion and issues, beyond the factual accounts, relevant to that consideration.