sophymilesblog

New Practice Directions out now!

The Practice Directions supporting the new Court of Protection Rules have been published now. You can read them here.

The following are in force now:

PD3A- authorised court officers

PD3B- levels of judiciary

PD11A- Human Rights

PD12A-Jurisdiction to be exercised by certain judges

PD 20A-appeals

PD21A- allocation of appeals

The remainder will come into effect on 1st July 2015.

Practitioners’ attention is drawn in particular to the following:

PD 2A– supporting new Rule 3A (participation of P), and setting out the approach the court may take in deciding whether to appoint a Rule 3A representative. Paragraph 11 describes the factors which the court will consider when deciding how P’s interests will best be furthered. These will include for example where expert evidence is needed on P’s behalf which might be a trigger to joining P and appointing a litigation friend). Paragraph 12 makes suggestions as to who might properly be appointed a representative for P where P is not joined- for example a family member, friend, IMCA or Care Act advocate).

PD 3B- explaining the new “tiering” of judges.

PD3C- application of the CPR or FPR where there is a lacuna.

PD13A. Rule 91(2A) now allows communication of information in accordance with Rule 13A, subject to a direction of the court. Paragraphs 34 onwards set out the criteria for such communications, and for what purpose communication can be made.

PD19A– Costs.

Status of declarations in the Court of Protection.

In MASM v MMAM, MM and London Borough of Hackney, Mr Justice Hayden considered what sanctions could be imposed for actions made by a party to Court of Protection proceedings who had deliberately acted in defiance of declarations. Could these be regarded as contempt of court and could committal to prison result?

You can read the judgment here. In brief MM, MASM’s grandson, had not opposed declarations that it was in MASM’s best interests to reside in a care home, and authorising any resultant deprivation of liberty. No injunctions were made at the time and therefore the order contained no penal notice. Subsequently Hayden J found that MM (acting with the assistance of his father Mr MASM) had arranged the removal of MASM to Saudi Arabia and had provided an account to the court which the judge found to be “a complete fabrication”. He was critical of the what he described as the “supine” response of the local authority commenting that “vulnerable adults have to be protected as sedulously as vulnerable children” whilst making it plain that it is the obligation that is similar and not those entitled to such protection.

It was urged upon the judge that – in analogy to the wardship or parens patriae jurisdiction- an action hampering the court’s objectives could itself be an interference with the administration of justice. The judge did not accept this, drawing an important distinction between the paternalistic quality of wardship “which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult”.

Ultimately the judge concluded that a best interests declaration does not always mean that any alternative course of action is contrary to the individual’s welfare and although MM had acted cynically and frustrated the objectives of the litigation, he was not acting in defiance of an order and was not exposed to contempt proceedings. The current case was unusual and there are many cases where partners or relatives struggle to accept the outcome of proceedings and “it would to my mind be disproportionate and indeed corrosive of the co-operation ultimately required for the shadow of potential contempt proceedings to fall too darkly over cases such as this.”

The judge concluded with the following guidance:

“i)Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).”

He directed that MM pay personally the entire costs of the proceedings.

A depressing and inexcusable set of affairs

District Judge Mort has approved a damages settlement in another troubling case involving the wrongful removal and detention of a vulnerable adult. Essex County Council v RF and others concerned P, a man of 91 with dementia, who was removed from his home of 50 years and kept in a locked dementia unit for over a year, against his will, with no consideration given to any less restrictive alternative or indeed to the possibility that he might have capacity to make decisions about his evidence himself.

The brief judgment merits reading in full as a worrying catalogue of disregard of the principles and process of the Mental Capacity Act. The judge summarised these as follows:

As far as P was concerned ECC failed:

• To heed the presumption in favour of his capacity

• To adopt the course of action which was less restrictive of P’s rights and freedom of action.

• To have regard the independent evidence of P’s capacity by either ignoring it or immediately countermanding it

• To take seriously or act upon his consistently expressed wish to return home

• To appoint an IMCA for him

• To refer the matter to the court

These were substantive and not technical breaches. Fortunately after 17 months the local authority agreed to support P’s return home and he has now moved back home. Although the COPRs do not themselves provide for approval of damages, the judge was able to so under the Civil Procedure Rules. He reviewed the level of damages in known cases and concluded that this suggested a level of between £3000 and £4000 per month. ECC agreed to pay P’s costs, to waive the care home fees and, importantly, to disregard the damages when assessing P’s liability to contribute to his care costs.

“A sensible decision, not the pursuit of perfection”

Mr Justice Peter Jackson has expressed concern about the costs and delay – and associated “human misery” and drain on manpower- in two Court of Protection cases, which in his conservative estimate cost around £9,000 per month, largely paid for by the State.

You can read his strong judgment here. It echoes some of the comments made in the family sphere (V v V, [2011] EWHC 1190 (FAM); J v J [2014] EWHC (Fam)).

The following comments should be noted by practitioners:

The inconsistency of “extravagance” in CoP proceedings with the parties’ duty to assist the court in furthering the over-riding objective;
The importance of restraining excessive costs where P’s money is being spent on deciding his future, whether he likes it or not
The judge’s criticism of the “search for the ideal solution, leading to decent but imperfect solutions being rejected”- s1(5) “calls for a sensible decision, not the pursuit of perfection;
It is not necessary to take up “every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved”.
The need for professional co-operation. Here the judge noted the role of the litigation friend in one of the cases: “This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.“

The judge concluded:

“The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?
I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.”

Habitual Residence for the purpose of the MCA

In A Local Authority v SW and another, Moylan J considered the question of the habitual residence of SW, a woman who lacked capacity to decide about her residence. She had moved in 2009 from hospital in Scotland (where she had grown up) to a placement in England, initially under under the terms of the equivalent of a Community Treatment Order. This lapsed in 2010. Her care was funded by the Scottish authorities and this would continue whatever the judgment. Her money was managed in Scotland on her behalf.

The judge concluded that (although SW expressed a dislike of the area where she lived and a wish to move) she was habitually resident in England. His reasoning is set out below:

“Discussion

Given the close links, in particular between the 2000 Convention and the 1996 Child Protection Convention, as explained in the Lagarde Report; given the relationship between the 2000 Convention and the MCA; and for general policy considerations as referred to by Lady Hale in A v A, it is clear to me that the definition of “habitual residence” under the MCA should be the same as that applied in other family law instruments, including BIIa. Further, BIIa is also closely linked to the 1996 Convention, as explained in Proceedings brought by A.
In my view, it must be right that the approach to the issue of habitual residence under BIIa should be the same as that under the MCA. I have not been directly referred to other judgments from the Court of Justice or domestically which address the issue of habitual residence including those which refer to the test of “centre of interests”. However, this phrase is incorporated in the judgment of Mercredi v Chaffe, as referred to above. Accordingly, whilst, inevitably, different factors will be relevant and will bear differential weight, the overarching approach should be consistent across all international family law instruments, including under the 1996 Child Protection Convention and in respect of children under BIIa. Any other approach would, in my view, be inconsistent with the points made in the Lagarde Report, especially in paragraph 49.
I do not, therefore, accept Mr Rees’s submission that the approach established by the CJEU, as adopted by the Supreme Court, is not applicable. I agree with Mr Harrop-Griffiths that the test should be the same, suitably applied, as that under Brussels IIa as referred to above. If a different approach was to be taken as between adults and children, habitual residence would not even be applied consistently within BIIa. It is plain that different factors, as in any case, will or may have differing degrees of relevance. But, in my view, the overarching test should be the same.
However, I agree with Mr Rees’s submission that the Local Authorities have adopted too narrow a focus when addressing the circumstances of this case. It is clearly important, given its critical place in so many international instruments, that the determination of habitual residence is kept as free as possible from analytical complexities or constructs. It is a question of fact. In my view, the Local Authorities in the present case have focused unduly on whether SW is integrated, in the sense of settled, by reference to whether she is happy living where she has been. Reduced to their key elements they submit that, given SW’s placements in England have to varying extents been determined for her and given she does not like living where she is, SW is not habitually resident in this jurisdiction because she has never become sufficiently integrated.
Although the Supreme Court refers, in both A v A and Re LC, to the test or question as being whether there is some or sufficient degree of integration in a social and family environment, I do not accept that this was intended to narrow the court’s focus to this issue alone as an issue of fact. It is not a free-standing, determinative factor, and in particular not to the exclusion of all other factors. In my view, this would not be consistent with the broad assessment identified as being necessary by the CJEU. As the Court said, in Proceedings brought by A, the national court must conduct an “overall assessment” in the light of the factors referred to in paragraphs 38-41.
In Mercredi v Chaffe the Court of Justice said that the place of habitual residence “must be established, taking account of all the circumstances of fact specific to each individual case” (paragraph 47). These include the conditions and reasons for the stay, its duration, and other factors which make clear that the person’s presence is not in any way temporary or intermittent. Factors which, as Lady Hale said in Re LC (paragraph 59), address whether the residence has acquired “the necessary degree of stability”.
Further, integration, as an issue of fact, can be an emotive and loaded word. It is not difficult to think of examples of an adult who is not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living. Integration as an issue of fact can also raise difficulties when a court is determining the habitual residence of a person who lacks capacity. As Mr Rees submits, there is a wide range of potential factual situations which will impact on the court’s ability to establish a person’s state of mind or perception and the weight which can properly be given to it.
To repeat what Lady Hale said in A v A, at paragraph 54(vii): “The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce”. Another way, in my view, of expressing this might be that the court should not lose sight of the wood for the trees. I say this because, standing back for a moment, it might be thought surprising that it might be argued that someone who has been living, largely voluntarily, in England for nearly five years, and for the last three-and-a-half years in their own flat, was not habitually resident here.
I would suggest that the phrase “degree of integration”, as with centre of interests, is an overarching summary or question rather than the sole, or even necessarily the primary, factor in the determination of habitual residence. Otherwise, it would become a legal construct in place of the essential issue which is, of course, that of habitual residence. This is not to say that the degree of integration and a person’s state of mind are not relevant; they are clearly factors to which appropriate weight must be given when the court is undertaking a broad assessment of all the circumstances of the case. The broad assessment which is required properly to determine whether the quality of residence is such that it has become habitual in that it has the necessary degree of stability in order to distinguish it from mere presence or temporary or intermittent residence. This means a sufficient, or some, degree of integration, not, I suggest, as a limited factual assessment, but as a question to be answered by reference to the factors, suitably applied, referred to by the CJEU and the Supreme Court.

Determination

Turning then to the circumstances of the present case. As SW has been living in England since July 2009 and has been living in her own flat since December 2010, in my view there would need to be some compelling countervailing factors in order for me to determine that she is not habitually resident in England.
I accept that SW’s move to England was pursuant to a compulsory treatment order and that, since then, her place of residence, while seeking to meet her wishes as much as possible, has very largely been governed by the relevant authority’s decision as to what would suitable and by what has been available. I also accept that SW has expressed her dislike of the area in which she lives and her wish to move somewhere else. However, I do not consider that these factors come close to counterbalancing the effect of SW’s long residence in England especially when combined with the matters referred to by Mr Rees (paragraph 61 above).
By virtue of its duration, SW’s residence has, in my view, acquired what might be termed effective “stability”, in the sense used by the Court of Justice. Many people would rather not be living where they are and might wish fervently to live somewhere else. However, at least after a person has been living in one place for a significant period of time it will be difficult not to come to the conclusion that they are sufficiently integrated into their environment, whatever its composition, for them to be habitually resident there. In the present case, any other conclusion would, in my view, be placing far too much weight on an assessment on SW’s state of mind and the extent to which she feels settled. Accordingly, in my judgment SW is habitually resident in this jurisdiction for the purposes of the Mental Capacity Act 2005.

Capacity, contact, care and supported living

In the fifth substantive judgment in LBX v K and others [2013] EWHC 3230 (Fam), Mrs Justice Theis considers the ‘relevant information’ that needs to be understood to make a decision about supported living and care arrangements. Readers will be familiar with the important decision of the Court of Appeal which upheld one of the earlier judgments. The Court of Appeal’s decision ([2012] EWCA Civ 79) can be read here. Here, Theis J was asked to consider whether L, a young man with mild learning disabilities had the potential to achieve mental capacity to make decisions about residence, contact and some specific care decisions. Theis J agreed that the relevant information in making a decision between accommodation options was:

1. what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;

2. in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);

3. the difference between living somewhere and visiting it;

4. what activities L would be able to do if he lived in each place;

5. whether and how he would be able to see his family and friends if he lived in each place;

6. in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of ‘do’s and ‘don’t’s, otherwise he will not be able to remain living at the placement;

7. who he would be living with at each placement;

8. what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and

9. the risk that his father might not want to see him if L chooses to live in the new placement.

She considered it would ‘set the bar too high’ to add matters such as the cost of the placement and the value of money; the legal nature of the tenancy agreement or licence; and the relationship that L might have with his father in 10 or 20 years time if he lived independently now – this was outside the ‘reasonably foreseeable consequences’ of the decision. (para 44)

45. I agree also with the analysis of the Official Solicitor as to contact in para13 save for one matter. So I agree with the first one, who they are and in broad terms the nature of his relationship with them; secondly, what sort of contact he could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker; and, thirdly, the positive and negative aspects of having contact with each person. This will necessarily and inevitably be influenced by L’s evaluations. His evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if he believed that a person had assaulted him when they had not. But L’s present evaluation of the positive and negative aspects of contact will not be the only relevant information. His past pleasant experience of contact with his father will also be relevant and he may need to be reminded of them as part of the assessment of capacity.

46. In relation to the last aspect under contact, which is what might be the impact of deciding to have or not to have contact of a particular sort with a particular person, I think there needs to be some reference in there to family in that family are in a different category, and I will hear submissions in relation to adjustments to that aspect.

47. I agree also that in relation to contact the matters set out in para 14 are not relevant: abstract notions, like the nature of friendship and the importance of family ties, subject to the point that I have just made relating to recognising the family in the last of the agreed aspects; the long-term possible effects of contact decisions, for the reasons I have already given in relation to s3(4); and risks which are not in issue, for example, those mentioned by Dr Hall, such as the risk of financial abuse.

48. Turning to care, again, I agree with the matters itemised in para 15 as being the relevant information, namely, what areas he needs support with, what sort of support he needs, who will be providing him with support, what would happen if he did not have any support or he refused it and, lastly, that carers might not always treat him properly and that he can complain if he is not happy about his care, I agree in relation to the information in para 16 that it is not relevant, that is how his care will be funded, and how the overarching arrangements for monitoring and appointing care staff work.

She endorsed the approach of one of the experts Ms Whittaker, an independent social worker instructed to carry out a best interests assessment but whose approach allowed her to provide valuable views as to L’s potential to achieve capacity. Ms Whittaker had used tangible aids such as drawings, which, as Theis J noted, could assist L in making a decision himself. This approach resonated with MCA 2005 s1(3) and the UN Convention on the Rights of Persons with Disabilities (CRPD) Article 12(3) which states:

States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

A fanatical desire to maintain control

Baker J has handed down judgment in a highly unusual case, A Local Authority v M and others. The facts of the case are startling and underline some of the findings in the House of Lords Select Committee on the Mental Capacity Act about the lack of awareness of the MCA amongst some clinicians. The judge made important comments about, amongst other matters, the vital importance of proper decision-making when prescribing treatment, including “alternative” treatments, the correct use of welfare deputyships, and the disclosure obligations on litigants in person. M was the son of E and A, and had childhood autism. Both parents, but particularly his mother E, became convinced that this was as a result of the MMR vaccine, and, as the court found, made numerous false statements about this and other aspects of her son’s health. A claim had been made on behalf of M in the litigation seeking compensation over the vaccine, but ended when legal aid funding was withdrawn. Baker J summarised the facts succinctly at the end of his judgment:

The critical facts established in this case can be summarised as follows. M has autistic spectrum disorder. There is no evidence that his autism was caused by the MMR vaccination. His parents’ account of an adverse reaction to that vaccination is fabricated. The mother has also given many other false accounts about M’s health. He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease. As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions. He did have a dental abscess for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering. E has also insisted that M be subjected to a wholly unnecessary diet and regime of supplements. Through her abuse of her responsibility entrusted to her as M’s deputy, she has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived. This behaviour amounts to factitious disorder imposed on another. In addition, E has a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.

The judgement repays reading in full. For the purpose of this post, we focus on three areas: the proper use of welfare deputyship, fact-finding and the disclosure obligations on litigants in person. Deputyship: In 2010 E applied to be M’s welfare deputy, and asked in her application that this:

” … include life-long custodian to him. In addition, for the court to decide that life-long advocacy is also included in this role unless otherwise delegated by me.”

In the box on the application form asking how the order would benefit M, E stated, inter alia:

“My son would benefit from all decisions being made in his very best interests and without the influence of external pressures or distractions.”

On 18th June 2010, District Judge Rogers made an order appointing E as M’s deputy for property and affairs and personal welfare decisions. This order was made without notice to the local authority, Y House or any other agency involved in M’s care. [para 27]. Baker J found that E had grossly abused her power as deputy and that she had used the power to control M’s life and restrict the roles of the professionals, describing her as having a “fanatical desire to maintain control over her son’s life”. He considered E’s decision-making in imposing a regime of supplements and alternative treatments on M, often on the advice of practitioners who did not meet M and were content to take instructions wholly from M. The judge noted the views of the expert witness Dr Peter Carpenter: 178 Dr Carpenter observed that most of the dietary and nutritional therapies given to M are ones that he has experienced with other patients over the years. He has not objected to them being used in most cases. He also observes that E appears to have normally sought professional help when using therapies; that she has not devised treatment protocols without advice. He adds, however, that he found little evidence that E carried out what he would expect a best interests decision-maker to do when using non-conventional therapies for an adult who does not have capacity to choose for himself: namely, (a) draw in as wide a range of advisors as possible, and (b) ensure that the therapists are fully aware of the medical history. Dr Carpenter is very concerned that the therapists in this case were not given copies of any diagnostic reports but were, rather, given accounts of how the MMR vaccine had induced a vegetative state and a diagnosis of enterocolitis, which was not supported by any contemporaneous medical records. 179. Dr Carpenter also criticises E for failing to question the reason and purpose of any of the therapies or interventions used or seek unbiased evidence about their effectiveness. He is concerned at the lack of evidence that E looked at the arguments against therapies, as well as the arguments for. He is concerned at the apparent inadequacy of some of the assessments prior to starting therapy. He is also concerned at the apparent lack of monitoring of the effects of therapies. He notes that, despite the lack of evidence that any of the supplements work, the number and manner of taking them has been allowed to grow so that they now seemingly dominate M’s life and care regime. It is the quantity and intensity of the supplements given to M that causes concern for Dr Carpenter rather than any single supplement. 180. For a number of years, until his placement at N House, M was on a gluten and casein free diet. The efficacy of this diet for people with autism is a matter of controversy. Dr Carpenter quoted the guidelines issued by NICE in 2013, which he helped to draft, which recommended against the use of exclusion diets such as gluten or casein free diets for the management of core features of autism in children and young people. He cites research published by “Research Autism”, which he described as a generally respected organisation that attempts to review the evidence of main treatments and interventions in an unbiased manner and which concluded:

“The theory behind the gluten free/casein free diet [“GFCF”] is weak and unproven and there is limited evidence as to whether GFCF diets are actually effective for individuals with autism. Reviewers have found the research evidence to be inconclusive. Despite this lack of evidence, many people embark on a GFCF diet with high expectations that there will be beneficial effects. However, these diets can involve significant inconvenience and costs, as well as a significant limitation on what the individual can eat. Because of this we cannot recommend the use of such diets.

181.A different opinion was expressed by several witnesses called by E and A. Mr Shattock said that excluding gluten and casein from the diet had been reported as leading to measurable improvements in a high proportion of subjects, though in some instances the improvements were minor and not worth the effort, cost or possible disruption to life. Those reports are, however, based on the impression of parents and carers rather than any scientific analysis. Mr Shattock conceded that the benefits of the diet are clinically unproven and frankly acknowledged in his report that, had he been on the NICE committee himself, he would not have been able to disagree with the negative conclusion as to the use of such diets for people with autism. Dr Aitkin said that in general there are several reasons why such a diet might be considered as part of a management approach in an individual with an autism diagnosis and not merely used as a placebo. He cited research that suggested that such a diet is safe if properly adhered to and that there is some limited evidence of benefit. Some individuals with autism showed improvements on such a diet, for reasons other than a casein or gluten free intolerance. Again, however, the evidence of such improvements is the subject observations of parents and carers rather than any clinical or scientific analysis. Ms Haywood, however, was clear that there is now overwhelming evidence about how much autistic people benefit from a gluten free diet

182.In M’s case, there is no clear evidence that being on a GFCF diet is beneficial. The notes of the Royal Free Hospital recorded on 18th March 2001 that E had tried M on such a diet, but by January 2002 the hospital was recording that “he remains on a normal diet as there were no improvements in his behaviour or bowel habits on a gluten and dairy free diet” and there is no evidence that the Royal Free made any subsequent recommendation that he be put back on that diet. The diet was subsequently reintroduced unilaterally by E without positive medical approval. Professor Williamson regards it as a “telling fact” that, since M became resident at N House, he has remained in good physical health despite eating a normal diet, free of any restrictions and devoid of any of the numerous supplements that he had previously been obliged to take. On the contrary, he is eating well and gaining weight. When Professor Williamson saw him, he thought that he looked in excellent physical shape. Professor Williamson advised that, if M can stay well after a restricted diet, vitamins and minerals, it provides “strong evidence to suggest that they are unnecessary.”

183 For Dr Carpenter the key feature was that the reason given for M being on a diet – that he had a diagnosis of enterocolitis – was fallacious. In those circumstances there was no good reason for his diet being restricted in this way. It seems plain that those who advised E about the diet, in particular Ms Haywood, assumed that the diagnosis of enterocolitis given by E was correct. The concern about the insistence of the diet in this case was, therefore, not so much about the use of the diet per se, (which is plainly not uncommon amongst people with autism, notwithstanding the clear view expressed in the NICE guidelines), but, rather, the fabricated diagnosis which led to the diet being imposed.

184If the only alternative treatment therapy provided to M had been the GFCF diet, there would be relatively little concern. But it was not. Rather, it was one of a multitude of treatments given. In her final statement, E described M as an:

” … ever-changing minefield of biochemical hormone surges that require constant awareness of and treatment in terms of biomedical natural supplementation and dietary intake.”

In terms of nutrition, he was supplied with a large number of supplements to be taken daily. Here, it was Ms Haywood’s advice on which E acted. In contrast to the approach recommended by Mr Shattock in the Sunderland Protocol, there was no incremental approach (testing the efficacy of each individual supplement) but rather the prescription of a cocktail of supplements every day.

Dr Carpenter quotes the NICE guidelines again as not recommending the use of such supplements for the treatment of the core symptoms of autism in adults. He notes that: “Research Autism” observed the evidence of nutritional supplements being untested or incapable of being proved and, therefore, it was not a treatment that they could recommend. Dr Carpenter notes, however, that most of the supplements appeared to have no known toxic overdose limit. He acknowledged that he is not an expert, although he expresses concern in general about how over the years the number of supplements delivered to M has increased dramatically and how the rigidity of instructions given for the supply of the supplements produces what he describes as unnecessary behaviour and choice restrictions of M.
I accept Dr Carpenter’s opinion on this point. There is no evidence that the supplements caused physical harm, but I am not persuaded that there is any reliable evidence that they cause any benefit. The important issue is the manner and the quantity in which they were prescribed, without proper objective analysis, to a young man who lacked capacity to make decisions about whether or not to take them.

The judge found that E was the last person who should be entrusted with the role of M’s deputy, but found that it was highly likely that a welfare deputy would be needed because of the fundamental disagreements between the local authority and the family. Fact-finding: The judge set out the following principles to be applied in fact-finding hearings in the Court of Protection. 83. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them. 84. Secondly, the standard of proof is the balance of probabilities: Re B (Children) [2008] UKHR 35. If the local authority proves a fact on the balance of probabilities, this court will treat that fact as established and all future decisions concerning M’s future will be based on that finding. Equally, if the local authority fails to prove any allegation, the court will disregard that allegation completely. In her written submissions on behalf of the local authority, Miss Bretherton contended that the court should apply the principle that

“the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

This principle, originally stated by Ungoed-Thomas J in Re Dellows Will Trust[1964] 1 WLR 451, was at one time applied by the courts considering allegations of child abuse in family proceedings under the Children Act 1989. In Re B, however, the House of Lords emphatically rejected that approach. Baroness Hale of Richmond, with whose judgment the other four Law Lords agreed, having analyzed the case law, stated at paragraphs 70 to 72:

“70 I would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s.31(2) or the welfare considerations of the 1989 Act is the simple balance of probabilities – neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant in deciding where the truth lies.71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted or he may find himself still at liberty to maltreat this or other children in the future. 72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.”

In my judgment, the same approach must surely apply in the Court of Protection where the court is carrying out a similar exercise in determining the facts upon which to base decisions as to the best interests of an incapacitated adult. 85.Thirdly, findings of fact in these cases must be based on evidence. As Munby J (as he then was) observed in Re A (A Child : Fact-finding hearing: speculation) [2011] EWCA Civ 12:

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation.”

86. Fourth, the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President, observed in Re T [2004] EWCA Civ 458, [2005] 2 FLR 838, at paragraph 33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

Fifth, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the experts are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence: A County Council v. K, D and L [2005] EWHC 144 Fam, [2005] 1 FLR 851 per Charles J.
Sixth, in assessing the expert evidence, which involves a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, one important consideration – and of particular relevance in this case – is that the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others – see the observations of Eleanor King J in Re S [2009] EWHC 2115 Fam.
Seventh, the evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and impressions it forms of them – see Re W and another (Non-accidental injury) [2003] FCR 346.
Eighth, it is not uncommon for witnesses in these cases to tell lies, both before and during the hearing. The court must be careful to bear in mind that a witness may lie for many reasons – such as shame, misplaced loyalty, panic, fear and distress – and the fact that a witness has lied about some matters does not mean that he or she has lied about everything – see R v. Lucas [1981] QB 720. The assessment of the truthfulness is an important part of my function in this case.

The role of litigants in person. E and A were originally represented but conducted the latter part of the case, including a hearing that lasted 20 days. At para 73, Baker J summed up the procedural steps that the court took in order to assist E and A, and commented ”

Overall, I cannot recall a case in which litigants in person have been assisted by the court and the other lawyers to the extent provided in this case. I am satisfied that as a result E and A, and indeed M, have received a fair hearing, but this was only achieved at the cost of a significant lengthening of the proceedings. One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy.

Baker J drew attention to the need for all parties to provide disclosure, including of those documents which do not support their case: 76. In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. For example, no health visitor records were produced for the period of M’s early years. At a very late stage E alluded to the possibility that she may have copies of these records somewhere in the loft at her home. Furthermore, and despite my explaining the rules about disclosure on more than one occasion, I am not entirely satisfied that E and A have complied with their obligation to disclose all relevant documents, including those that do not support their case. At one point E’s medical records were produced and, when E objected to their disclosure on grounds of confidentiality, I conducted a public interest immunity examination to determine which pages of the records were relevant. In the event, I concluded that only 16 pages fell into that category, but E insisted on challenging the disclosure of some of those pages on the grounds that they would assist the other parties. This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure.

“A blatant disregard of the process of the MCA”

HHJ Nicholas Marston made findings of extensive breaches of the Convention rights of P, a young woman with severe learning disabilities and autism, and her family, by Somerset County Council, in a highly critical judgment. P was 19 and had lived with her family all her life. In May 2013 P became distressed and disruptive (possibly due to her menstrual cycle) at school and was returned home early from a school trip. That evening her mother M noticed bruising to P’s chest and reported it to the GP and to staff at the respite placement where P was due to stay during a family holiday M was due to take.

During M’s holiday further bruising on P was noticed and a safeguarding procedure was put in hand. Those investigating the injuries were criticised by the judge for failing to obtain the “easily discoverable” but key information that P had been seen to hit herself heavily on the chest during the school trip. Instead a decision was taken that P should not return home and M was informed of this on her return from holiday. It was plain that P’s whole family sought her return but P remained at the placement where her distress resulted in the prescription of aripiprazole, an anti-psychotic medication with a sedative side effect. In November 2013 she was moved to a second placement and in December 20113 a standard authorisation was granted and the local authority applied to the Court of Protection.

A nine day fact-finding hearing took place in May and June 2014. Shortly before the hearing the local authority decided not to rely on any allegation regarding the bruising which had led to the safeguarding investigation. The findings are set out in the judgment. In giving his findings in relation to M’s parenting style and relationship with professionals the judge said:

“35. Finding 22, inability to accept advice on M’s part, and finding 23 M’s rigid style both of parenting and of dealing with professionals, are important issues when considering if returning home is an appropriate option because they directly relate to issues about the care P would be getting at home. Three points need to be made first. As I have already said, given the longevity of the relationship between M and the social workers and the number of social workers involved, there are bound to be some people who don’t get on and some who do. In her evidence M told me of social workers she had had good relationships with and others (the majority it has to be said) she did not. Second, M has a strong personality, otherwise she would have sunk under the weight of cares and problems in the last 20 years and she perceives herself as having to fight for a good deal for in particular P and A. Third, as will become clear in the later parts of this judgment when I examine the conduct of the LA over the last 13 months, she and her family have had a lot to put up with. In his evidence the senior manager for social services conceded LA failures across the board and the damage that has done to the family and its relationship with the LA. Having said all of that there have in the past, prior to May 2013, been real clashes of personality and failures in communication but I cannot find that it has been proved on the balance of probabilities there has been an irrational refusal to co-operate from the family with the statutory authorities. The best evidence for that is that there was never, in the whole of Ps minority, an application in public law proceedings and no doubt if the LA had had evidence at the time of failure to co-operate on a scale which was causing P or any of the children significant harm such an application would have been made.

36.Two final points before leaving the Schedule, first the relevance to a best interests decision now of historical concerns which have never led to legal action prior to May 2013 has always been, in my view, difficult to demonstrate, so I agree with the comment in the Closing Submissions of the OS for P at paragraph 28 page 7: “…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.” Second, the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.”

The independent social worker instructed recommended a return home by P and this was supported by the Official Solicitor. The judge found that the balance fell decisively in favour of a return home.

On the conduct of the local authority the judge said:

“75. In its position statement of 22/4/14 the LA concede that P was deprived of liberty and that there was a period where that deprivation was unlawful. It’s case is that was from the end of the respite care in early June to the urgent authorisation on 28/11/13. It further concedes that the deprivation of liberty and loss of her society to the family amounted to an interference with respect to their right to a private and family life contrary to Article 8 ECHR and that interference was not in accordance with the law. It argues that if a lawful process had been followed it is likely that P would have remained away from home while the LA pursued its concerns over safeguarding (the bruising issue) and in due course of time P would have moved to a residential home as they now suggest. It is conceded that if I do not think the residential home is in P’s best interests P should have been returned home at a significantly earlier date.

76.There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

77.The LA seeks to rely on the DOL urgent authorisation it obtained on 28/11/13 to close off the period of unlawful deprivation of liberty. In the case of London Borough of Hillingdon v Neary(2011) EWHC 1377, a case that has many depressing similarities to this one, Mr Justice Peter Jackson said at paragraph 33:

“The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in that place at all. Using the DOL regime in that way turns the whole spirit of the MCA on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case far from being a safeguard the way in which the DOL process was used to mask the real deprivation of liberty which was the refusal to allow Stephen to go home.”

78. I find that is also precisely what has happened here and the breach of Article 8 rights continues up to now.

79. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.”

The judge noted that the Official Solicitor had indicated the intention to pursue a claim for damages for breach of P’s Articles 5,6 and 8 rights and to make that application within the COP proceedings

Post-Cheshire West Judgment Released

The President today released a preliminary judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 25 setting out briefly his answers to those of the 25 questions he posed at an earlier hearing and which require an early decision. It concentrates on the issues directly relevant to what he calls the ‘streamlined’ process. It sets out no more than the broad framework of what the President considers is required to ensure that the ‘streamlined’ process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the Rules Committee.

A further judgment will follow in due course, elaborating on his reasons for deciding as he has and dealing with the questions – in particular questions (6), (8) and (10) – not dealt with in this judgment.

The judgment sets out a pretty detailed list of what information the new application forms should direct that applicants provide including that professional medical opinion will be necessary – a GP report may suffice, but he has not gone as far as saying that e.g. a social worker can confirm a long-standing diagnosis.

On the questions of greatest concern to practitioners:

The President held that P does not need to be a party, but he has made very clear that P must be able to present their case properly and satisfactorily and participate – and he has delegated how that should happen to the Rules Committee .

What the Convention requires is that P be able to participate in the proceedings in such a way as to enable P to present their case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, and in my judgment it can in principle be met without P being joined as a party, there is no need for P to be a party.
If P is a party to the proceedings, P must have a litigation friend. If P is participating other than as a party, there is no need for a litigation friend.
These are all matters which require urgent consideration by the Committee as part of its more general review of Rule 73(4)

A LF does not need to act through a solicitor to conduct litigation, but requires the permission of the court to act as an advocate on behalf of P: in both of these conclusions he has (at this stage) followed Gregory v Turner.

All applications must be made to a judge and certain factors may trigger the need for an oral hearing although this is not needed in all cases. These include:

Any contest, whether by P or by anyone else, to any of the matters referred to in paragraphs 35(ii)-(vii) below.
Any failure to comply with any of the requirements set out in paragraph 35(viii) below
Any concerns arising out of information supplied in accordance with paragraphs 35(ix), (xiii) and (xiv) below
Any objection by P.
Any potential conflict with any decision of the kind referred to in paragraph 35(x) below.
If for any other reason the court thinks that an oral hearing is necessary or appropriate.”

“Bulk” applications are not lawful. (para 38-9).

Reviews should be annually unless otherwise required; must be judicial and may take place on the papers, whether or not there has been an earlier oral hearing, raising the possibility of a process where there is no hearing at all and where P would not have the benefit of legal aid which requires an oral hearing.

Update: together with Neil Allen and Tor Butler-Cole, Alex has produced this document which provides a practical guide to such applications (and seeks to answer some of the questions arising from the judgment).

Courts Service may have to meet costs of legal representation where no other funding is available

The President has just handed down a judgment in a family case, Q v Q [2014] EWFC 31 which has implications for Court of Protection practitioners as well as for those working in the family courts.

The judgment related to three unrelated cases: Q V Q, where the President had previously handed down a judgment Q v Q [2014] EWFC 7 ; Re B, which had been heard by HHJ Wildblood (D v K [2014] EWHC 700 (Fam))and a third case, Re C.

All were private law proceedings where the father of child who lived with the mother sought a role in the child’s life. In all three the mother had legal aid and the father did not.

The cases raised problems which pre-dated but were exacerbated by LASPO. The President summarised the provisions of LASPO and exceptional funding regime; noting that the threshold for exceptional funding had been found too high in Gudanaviciene and others v Director of Legal Aid Casework [2014] EWHC 1840 (Admin)and commented that the very small number of successful applications for exceptional funding suggested that the system was “inadequate” [at para 14].

Q v Q was an application for contact by a father who was a convicted sex offender, where the President had invited the Secretary of State for Justice to intervene and make submissions as to how expenditure for certain activities could be met if the court considered it to be necessary but it was not available from legal aid and in particular if it could be met from the other party’s certificate or from the court [para 23]. The Secretary of State declined to intervene; the father had asked the Public Law Project for assistance with exceptional funding application. The proceedings had stalled because the father required an interpreter and possibly a translation of documents; there was no funding to bring the experts in the case to court; and the father had to appear as a litigant in person.

In Re B a father applied for contact with his child. The mother asserted the father had raped her, necessitating a fact-finding hearing. As in the other cases the mother had legal aid and the father did not, giving rise to the spectre of the alleged perpetatrator cross examining an alleged victim in person. This would have been prohibited had this been a criminal case: s34 YJCEA 1999 .

Section 31G(6) Matrimonial and Family Proceedings Act 1984 was amended by Schedule 10 Crime and Courts Act 2013 and provides

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –  (a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and (b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

HHJ Wildblood found this criteria to be met in January 2014 . Following this the father eventually succeeded in obtaining legal aid after commencing judicial review proceeding sand following the judgment in Gudanaviciene.

Re C again concerned an application for contact by a father where the mother asserted that he had raped her. The father was awaiting trial at the Crown Court.

The President noted at para 43 that:

“The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court.”

By way of setting the scene he referred to the over-riding objective of dealing with cases justly, set out in FPR 1.1 (and at COPR3.1) as well as the requirements of the courts to act consistently with Articles 6 and 8 of the European Convention and the requirement that A6 rights should be effective. Mantovanelli v France (Application no 21497/93 (1997) 24 EHRR 370) indicated indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.” (at para 49).

In connection with the need for an interpreter in Q v Q the President noted that HMCTS would provide an interpreter in domestic violence cases or those involving children and commented [at para 53) that where appropriate and if no one else could pay “HMCTS will also, I imagine, pay for the translation of documents needed”, and noted that he had made orders to this effect in this and other cases.

As regards the attendance of the expert the President referred to the requirement that expert evidence should only be obtained when necessary to assist the court in resolving the proceedings ‘justly’ (s 13(6) Children and Families Act 2014).

He said

“56.In principle, the first question in that situation must be, is it, in the view of the court, “necessary”, if the proceedings are to be resolved “justly”, to have the expert in court to answer questions, or will it suffice for the court to be able to read the expert’s report? If the proceedings can be resolved “justly” without requiring the expert’s attendance, then there is no reason why public funds should be spent on something which is, on this hypothesis, unnecessary. If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost.

57.In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS. It is, after all, the court which, in accordance with FPR 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.”

What if the litigant does not have access to competent legal advice on the difficult questions raised by the allegations against the fathers, raising questions as to whether they are compellable witnesses and the extent to which they could be required to answer – matters the President described as “deep waters”?

The problems from the lack of representation generally were exacerbated by the “acute tensions” where an alleged perpetrator might cross-examine an alleged victim. This had been raise in 2006 in H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162,

In the President’s view S31G(6) clearly anticipated questions being put by someone other than the judge and he held [at para 79]

“In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.”

Applying this to the cases before him the President noted that the issues in Re B had been resolved. If the father’s application for exceptional funding in Q v Q was not granted the costs of the experts, whose attendance the judge found to be necessary, would have to be met by the court.

With regard to Re C the President concluded:

85. I have however come to two conclusions which I can and ought to set out. The first is that the matters to which I have referred above (in particular those relating to the issues of privilege and related issues) are matters on which the father in Re B, and even more so the father in Re C, desperately needs access to skilled legal advice, both before and during the fact-finding hearing. These are not matters which the judge conducting the fact-finding hearing can determine without the benefit of legal argument on both sides. If the judge is deprived of adversarial argument, and if the father is denied access to legal advice both before and during the hearing, there must, in my judgment, be a very real risk of the father’s rights under Articles 6 and 8 being breached both in the family proceedings and possibly also, in the case of the father in Re C, in the criminal proceedings. I bear in mind, of course, that, as I explained in Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, para 51, the admissibility in the criminal proceedings of any admissions made in the family proceedings is in the final analysis a matter for the criminal, not the family, judge. But this does not, in my judgment, meet the difficulty.

86.Linked to this there is, in the case of the father in Re C, a related point made by Ms Bazley. The proper – the fair and just – management of the case requires, in my judgment, that I give directions inter alia requiring the father to respond to the mother’s allegations and to file all the evidence upon which he intends to rely. Ms Bazley submits with some force, and I am inclined to agree, that to require the father to comply with that part of the order without access to proper legal advice is to imperil his rights under Articles 6 and 8.

87.I add only this. If, on the merits, the circumstances in Re B were such as to bring the father’s application within section 10(2)(a) of LASPO, and the LAA has conceded the point, then it might be thought that the father’s claim in Re C is a fortiori.

88.If the father’s application for public funding under LASPO is successful, then all well and good. If it is not, then I will have to consider what, if any, further order to make. I am inclined to think that, for all the reasons already indicated, the father in Re C requires access to legal advice beforehand and representation at the fact-finding hearing to avoid the very real risk of the court being unable to deal with the matter justly and fairly and of his rights under Articles 6 and 8 being breached. I am inclined to think, therefore, that, if he is unable to afford representation and pro bono representation is not available, and if there is no other properly available public purse, the cost will have to be borne by HMCTS.”

The President emphasized that directions that HMCTs should meet the cost of certain activities should only be met as a last resort and then only following consultation with a HCJ or designated family judge. Such directions may or may not be appropriate in cases which involve allegations of either serious non-sexual assault or of sexual assaults of a less serious nature.

Comment: The President concluded that the Ministry of Justice, the LAA and the Courts Service “may wish to consider the implications” of his judgment. It is likely that this will have far-reaching implications in the most extreme cases and no doubt will be considered by practitioners involved in other cases where the facts are different but where the lack of funding- including even exceptional funding- gives rise to a “very real risk” that the Court cannot deal with the matter fairly. In the Court of Protection context the issue of funding for expert evidence is a familiar one, and is also affected by the decision of the Court of Appeal in JG v The Lord Chancellor and others: [2014] EWCA Civ 656.