In LBX v TT and others  EWCOP 24, Cobb J has given important guidance on when to hold a fact-finding hearing, and when to hear oral evidence.
TT was a 19 year old woman with moderate learning disabilities and global developmental delay. In November 2012, she alleged that her stepfather had sexually assaulted her and forced her to watch pornographic videos. She was placed in adult foster care and her stepfather was awaiting trial in the Crown Court. As a result of significant concessions by the parents, rather than a three-day hearing to conduct a full enquiry into the allegations, Cobb J was able to proceed to a more limited factual enquiry, principally directed to the issue of contact between TT and her mother (‘MJ’).
One issue was whether, in light of the concessions, the court could make orders upon an agreed basis of facts without having to make factual findings. Or, given that TT’s mother’s stance on contact would be likely to change following her husband’s trial, whether a fact-finding hearing should proceed. Cobb J reiterated the principle that he who asserts must prove on the balance of probabilities, as described by Lord Hoffman in Re B (Care Proceedings: Standard of Proof)  UKHL 35 at §2:
“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”.
In determining what factors should influence the exercise of the court’s discretion in deciding whether these should be a finding of fact hearing at the interim or final hearing, his Lordship drew upon some analogous jurisprudence from the family courts:
“46. I have had the relative luxury of three days of court time set aside to determine these issues; the court will however often be constrained by sheer practicalities of time and opportunity for an oral hearing. In each situation, the Judge surely has to make a determination – often under pressure of time – as to how far he or she can go to test the material. By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact)  2 FLR 1 in which she said as follows:
‘There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.’
It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.
47. Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):
i. Whether there is sufficient evidence upon which to make the relevant decision;
ii. Whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;
iii; Whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;
iv. The welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;
v. The prospects of success of the applicant for a full trial;
vi. Does the justice of the case require a full investigation with oral evidence?
48. In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian)  EWHC 1593 (Fam) 2005 2 FLR 1031 at . Following a review of case-law relevant to the issue he stated that:
“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
a. the interests of the child (which are relevant but not paramount
b. the time that the investigation will take;
c. the likely cost to public funds;
d. the evidential result;
e. the necessity or otherwise of the investigation;
f. the relevance of the potential result of the investigation to the future care plans for the child;
g. the impact of any fact finding process upon the other parties;
h. the prospects of a fair trial on the issue;
i. the justice of the case.”
49. There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.”
According, Cobb J decided to conduct a limited fact-finding exercise and made resulting declarations and decisions. This included an authorisation to deprive TT of her liberty in the foster home.
When to hold fact-finding hearings in the Court of Protection is an issue in respect of which – unlike in relation to children – there is no guidance and a paucity of reported cases. The topic is discussed in some detail in the chapter 15 of the Court of Protection Handbook in which Alex expressed the view that a useful analogy could be drawn with the pre-MCA case of Re S (adult’s lack of capacity: carer and residence)  EWHC 1909 (Fam),  2 FLR 1235. However, this decision of Cobb J is by far the most comprehensive to date in terms of its analysis. Until and unless a Practice Direction or Practice Guidance is produced setting out a framework, it is suggested that the model set out by Cobb J is one that will be of considerable assistance to practitioners and judges in determining whether a fact-finding hearing is required and the need for oral evidence. It should, though, be recalled, that the tenor of recent judgments from the Family Division/Court of Appeal is that very considerable caution should be exercised before a separate fact-finding hearing is listed (see, for instance, Re S, Cambridgeshire County Council v PS and others  EWCA Civ 25).
[A version of this note appeared in the August 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]