Medway Council v M & Anor (Assessment of capacity)

The Court is concerned with the arrangements for the care of two children, A and B.

The mother of both children is M and the father is A.

On 29^th May 2025 Medway Council, the local authority, made an application to the Court for an interim Supervision Order. The interim threshold document, setting out the basis for the application, relied on evidence of the mother’s poor and fluctuating mental health, the risk of the children suffering sexual harm, the neglect of the children’s education, the neglect and risk of emotional and physical harm to the children in the home, the exposure of the children to people who might place them at risk of sexual harm, the father’s use of alcohol and the mother’s substance misuse. The court has not made findings in respect of any of these matters.

On 4 June 2025 the Court directed further evidence, including a response from both parents to the threshold relied upon by the local authority. The mother was represented by Counsel at that hearing who confirmed to the Court that litigation capacity did not appear to be an issue.

On 6 June 2025, the mother applied for a Child Arrangements Order in respect of both children on the basis that formal and informal agreements with the local authority had broken down, the family’s Article 8 rights had been violated and the family was subject to an illegal section 47 investigation.

On 17 June 2025 the Court again considered the local authority’s application and considered the evidence that had been filed (including the mother’s statement and email). The Court heard from all parties, including the mother, who represented herself, made submissions and gave oral evidence. The Court was satisfied that there were reasonable grounds for believing that the threshold criteria were met and made an interim care order and exclusion order in respect of both girls, who were placed with their maternal grandmother.

On 18 June 2025 the mother applied for permission to appeal that order. Her grounds of appeal were considered in the Court of Appeal and her application for permission to appeal was refused on 19 September 2025.

The mother attended the next hearing on 16 July 2025 and at that hearing permission was given for the instruction of Dr S, a Consultant Psychiatrist, to provide expert evidence in relation to the mother’s capacity to conduct litigation and to provide a psychiatric assessment of her. The application for this evidence was made by the local authority and supported by the children’s Guardian, but opposed by the mother. The Court recorded that the mother could not be compelled to attend the appointment, but that the psychiatrist’s report was necessary to assist the Court.

On 21 August 2025 the local authority applied for an urgent hearing for the court to consider and determine the mother’s capacity, on the basis that she had refused to engage with Dr S. That application came before me on 16 September 2025. The mother did not attend that hearing. At the hearing there was insufficient time to determine the mother’s litigation capacity and directions were made for further information, including a statement from the mother. The order set out clearly the reasons why that statement was needed.

I have taken into account all of the documents in the bundles prepared for this hearing, and those of particular relevance are as follows:

A cognitive assessment dated 5 June 2024 concludes that the mother is able to work efficiently with written and verbal information, checking her understanding of more complex materials when necessary. She does not require intermediary support.

A Cubas parenting assessment dated 13 August 2024 concluded that the children could remain in their mother’s care, while support was being provided to her. The risk identified was a deterioration in her mental health.

A report was prepared by Dr M, Consultant Psychiatrist, dated 16 August 2024. His report (prepared without access to the medical records) concluded that the mother:

“has been clinically depressed and anxious, but not clearly amounting to a depressive disorder or an anxiety disorder.”

His report refers to there having been previous uncertainty about any diagnosis, but says that from the limited information available, the mother has previously been psychotic, at least through to December 2023. In his opinion, a diagnosis of schizophrenia is most likely.

In accordance with the Court’s order for disclosure an email dated 3 October 2025 has been provided by the mother’s GP practice. This records:

The Community Health Team have also provided information in accordance with the Court’s order, as follows:

I have read the document headed “Mother’s Position Statement to the Court.” dated 21 October 2025. The mother prefaces her statement by saying that the local authority are in illegal possession of her children, the ICO having expired on 11 August 2025, and that the local authority are guilty of child abduction and are human child traffickers. The hearing today is also described as unlawful. In her statement the mother comments upon the evidence that has been filed within the proceedings, she records her concern about information that has been provided about her medical history and the use of this, and she raises concerns about the arrangements for her contact with the children.

In relation to the specific matters set out at paragraph 3 of the order dated 16 September 2025 the mother’s evidence is as follows:

I have seen emails between the mother and the local authority. On 7 October she wrote to say that she considers that she cannot proceed with Dr S and that he cannot act impartially. She also stated:

On 8 October, she wrote to say that she will not agree to any papers being disclosed to the psychiatrist, and that there is no issue regarding her capacity.

I have considered the mother’s documents in section J of the bundle for this hearing. In addition, the mother has sent six bundles of documents to the court as follows:

I heard some limited oral evidence from the mother today. I asked her whether she had understood the explanation that I had provided of the application before the Court today and the matters that I would take into account in determining her capacity in these proceedings. She confirmed that she had. I then asked whether she understood that at the conclusion of these proceedings, the court could make a decision (which I was not pre-judging) that the children might not be returned to her care. She understood this, and started to tell me why she disagreed with the local authority. I asked whether she understood that even if she disagreed the Court could come to the conclusion that the children should not be returned to her care. She understood this.

The starting point is the Mental Capacity Act 2005 which provides as follows:

The following principles apply for the purposes of this Act.

A person must be assumed to have capacity unless it is established that he lacks capacity.

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. 3

Whether or not a person lacks capacity is to be determined on the balance of probabilities (S.2(4) MCA 2005).

The test for establishing whether or not a person has the capacity to take a particular decision at a particular time is at s.2(1) MCA 2005:

Impairment or disturbance may be permanent or temporary (S.2(2)), must not be established merely by reference to the person’s age or appearance (S.2(3a)), must not be establish merely by reference to a condition the person has, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity (S.2(3b)).

S.3(1) MCA 2005 sets out guidance on the meaning of the phrase ‘unable to make a decision for himself’:

to understand the information relevant to the decision,

to retain that information,

to use or weigh that information as part of the process of making the decision, or

to communicate his decision (whether by talking, using sign language of any other means).

Practice Direction 15B sets out the central points:

the court must investigate any issue of capacity at the earliest opportunity;

the Official Solicitor will only expect to be invited to act as litigation friend if there is no other person suitable or willing to act;

expert evidence is likely to be necessary to determine the issue of capacity;

the presumption of capacity must not be forgotten as proceedings progress;

where a party lacks capacity to litigate, the question of whether or not they have capacity to give evidence, and if so whether special measures to assist them are required, is a different issue;

a party’s capacity to litigate may fluctuate during the course of the proceedings;

when the court is concerned with a child who is 16 or 17, and who may lack capacity under the Mental Health Act 2005 on reaching the age of 18, consideration should be given to the need to obtain expert evidence on capacity.

Capacity to conduct litigation may be distinct from capacity to make other decisions: AF v SF [2019] EWHC 1224 (Fam), [2020] 1 FLR 121. In the same way that a party should not be regarded as lacking capacity merely because a decision they make was one that would not be made by a person of ordinary prudence, equally, a party is not to be regarded as having capacity merely because a decision they make appears rational: Masterman-Lister v Brutton [2002] EWCA Civ 1889, [2003] All ER 162

In respect of how the Court establishes a party lacks capacity, there is no requirement within the rules for the filing or consideration of medical evidence as confirmed in Masterman-Lister [2002] EWCA Civ 1889, [2003] All ER 162 reiterated by Falk J in Hinduja v Hinduja & Others [2020] EWHC 1533 (Ch), who noted that:

While both the above cases are civil cases falling under the CPR, the terms of CPR 21.6 are almost identical to that to be found in FPR 15.6. The difference comes in the practice directions that expand upon the rules:

Expert evidence as to whether a party lacks such capacity is likely to be necessary for the court to make a determination relating to the party’s capacity to conduct proceedings. However, there are some cases where the court may consider that evidence from a treating clinician such as a treating psychiatrist is all the evidence of lack of litigation capacity which may be necessary. There may also be cases where it will be clear that a party does not have litigation capacity such as where the party is in a coma, minimally conscious or in a persistent vegetative state. In those cases, the court may well consider that a letter from a treating doctor confirming the party’s condition is sufficient evidence of lack of litigation capacity and not need a report from an expert.

stating that he consents to act,

stating that he knows or believes that the [claimant] [defendant] …..lacks capacity to conduct the proceedings,

in the case of a protected party, stating the grounds of his belief and, if his belief is based upon medical opinion or the opinion of another suitably qualified expert, attaching any relevant document to the certificate

There is further guidance in the FJC’s Capacity to Litigate in Proceedings Involving Children guidance dated April 2018:

Therefore, while the FPR does not mandate the reliance upon medical evidence, it is a clear expectation that this will be the norm.

The court has no power to force a party who appears to lack capacity to submit to medical examination. Where the potential protected party concerned is the applicant, the court could stay proceedings until that party produces evidence to dispel any doubt as to capacity. If that fails to yield results, there is assistance in the FJC’s Capacity to Litigate in Proceedings Involving Children guidance dated April 2018:

Paragraph 85 of the Guidance then sets out examples of evidence which the court could consider in arriving at a decision in respect of a person’s capacity to litigate. This includes information from schools, GPs, and local authority adult safeguarding teams.

The issue of litigation capacity has to be considered at the material time, namely the time that the proceedings are before the court. Where a protected party’s incapacity to litigate is transitory this does not require the Court to wait. In RP v UK [2012] ECHR 1796, the ECHR concluded that it would not have been appropriate for there to be periodic reviews of a mother’s litigation capacity; this would have caused unnecessary delay and would have been prejudicial to the welfare of the child.

In CS v FB [2020] EWHC 1474 (Fam) the court faced a situation where the mother appeared to lack capacity but was unwilling to instruct a solicitor, so a psychiatric assessment of her capacity to conduct the litigation could not be funded. Mostyn J made an interim declaration of incapacity based on the evidence before the court, which enabled the appointment of the Official Solicitor who could then apply for funding on the mother’s behalf.

I must consider whether the mother is unable to make decisions regarding these proceedings “because of an impairment of, or a disturbance in the functioning of, the mind or brain”. This is a two-stage test. I am satisfied from the case law that where expert medical evidence is not available, this is an assessment that can and must be carried out by the Court.

In this case the potential impairment is a diagnosis of schizophrenia or psychosis based upon:

I note:

I take into account the fact that the medical evidence is limited because on a number of occasions the mother has decided not to engage with assessment or support services. However, a risk assessment on 18 June 2025 identified no immediate risks, and the most recent consultation on 8 July 2025 with a mental health nurse was routine, the mother self-reporting that she is coping and does not require any further mental health support.

I take into account the history as recorded by Dr M, but considering all of the evidence and focusing on the mother’s current mental state at the present time, I am not satisfied on the balance of probabilities that she is suffering from an impairment or disturbance, whether permanent or temporary, at present. For the avoidance of doubt, the strength or otherwise of the legal arguments made by the mother do not impact my assessment. That could lead to an unjustified assumption regarding capacity.

In relation to whether the mother is unable to make decisions:

I am not satisfied on the balance of probabilities that the presumption of capacity has been displaced, and therefore the mother has capacity to continue to act in these proceedings.

At the conclusion of the hearing. I heard from all parties regarding the principle of publication and the extent of the anonymisation I proposed. No party raised any objection.