Considering the evidenceEvidence:applications, andEvidenceApplications:considering evidenceApplicationsEvidence:applications, andEvidenceApplications:considering evidenceApplicationsEvidence:family tensions, and–58Evidence:applications, andEvidenceApplications:considering evidenceApplicationsAlternative remedies:non-contentious property and financial matters:payment for necessary goods and services,4Evidence:applications, andEvidenceApplications:considering evidenceApplicationsEvidence:applications, andEvidenceApplications:considering evidenceApplicationsEvidence:local authority safeguarding applicationsEvidence:applications, andEvidenceApplications:considering evidenceApplicationsEvidence:exampleEvidence:applications, andEvidenceApplications:considering evidenceApplicationsEvidence:applications, andEvidence:analysingEvidenceApplications:considering evidenceApplicationsEvidence:weight ofEvidence:applications, andEvidence:admissibilityEvidenceApplications:considering evidenceApplicationsEvidence:weight ofEvidence:applications, andEvidence:admissibilityEvidenceApplications:considering evidenceApplicationsEvidence:weight ofEvidence:applications, andEvidence:admissibilityEvidenceApplications:considering evidenceApplicationsEvidence:weight ofEvidence:applications, andEvidence:admissibilityEvidenceApplications:considering evidenceApplicationsStandard of proof:balance of probabilityStandard of proofEvidence:standard of proofEvidenceApplications:considering evidenceApplicationsStandard of proofEvidence:standard of proofEvidenceApplications:considering evidenceApplicationsEvidence:meetingEvidenceApplications:considering evidenceApplications
5.4Lawyers spend much time discussing new case-law and the nuances of particular sections. However, for every case lost on a point of law, a thousand are lost for want of evidence; and a few more for procedural reasons such as missing time-limits and non-compliance with directions.
5.5The lawyers’ old maxim ‘only a fool bags himself as a brief’ acknowledges that everyone finds it difficult to be objective about a case in which they have a strong personal interest.
5.6Much litigation in the Court of Protection is the result of historic family tensions, in particular disagreements between siblings and step-relations. Strained relationships over many years now colour each child’s personal assessment of the evidence as to which of them is best placed to take on day-to-day decision-making for an incapacitated parent.
5.7Where there are longstanding family issues and an application is likely to be opposed, it is sensible to take legal advice on the evidence and merits of a possible application. Litigation is easy to start, often demanding to pursue and sometimes costly to withdraw or settle.
5.8Given human nature, it is also often quite easy for a person to satisfy themselves that an application for a proposed gift or will in their favour is one in the incapacitated person’s best interests. Again, it is prudent to take neutral advice on the weight of the evidence and what to expect before setting out. At this point the question to ask is not ‘What do I make of it?’ but ‘What is a judge likely to make of it?’
5.9In the case of local authority safeguarding applications, evidential problems often have a different cause. Local safeguarding investigations rarely involve full disclosure, forensic questioning or independent scrutiny. Consequently, in court the findings reached may not withstand that level of scrutiny. See further chapter 23 in relation to the interaction between safeguarding obligations and going to the Court of Protection.
5.10To summarise, before embarking on litigation that is likely to be contested it is particularly important to assess objectively the strength of one’s case and the adequacy of one’s evidence.
Example
Evidence:applications, and Evidence Applications:considering evidence Applications
5.11Mrs Smith is a 95-year-old widow who suffers from moderate to severe dementia. She lives with her son and daughter-in-law, Ms Jones. She is taken to a day centre three times a week by a paid carer. Staff at the day centre notice that she has a bruise and Mrs Smith says that her daughter-in-law caused it and that she is frightened of her. Wessex County Council are contacted and place Mrs Smith in a care home under a ‘DOLS order’ (Deprivation of Liberty Safeguards), ie a standard authorisation. Several months later, an adult safeguarding investigation concludes on the balance of probabilities that the bruising was non-accidental. The family start Court of Protection proceedings seeking a declaration that it is in Mrs Smith’s best interests to return home.
What is the local authority’s submission? | That it is in Mrs Smith’s best interests not to return to the family home and that she should remain in the care home. |
What is the local authority trying to prove? | Ill-treatment by her family. |
How does it prove this? | By evidence. |
What is the evidence? | The evidence consists of: i) the fact that bruising was observed by care home staff; and ii) Mrs Smith’s statement as to its cause. |
How reliable is the evidence? | Given that the family deny ill-treatment, the key evidential questions are: a) What is the evidence that the bruising is of a kind consistent with non-accidental injury? b) What is the evidence that Mrs Smith is or is not a reliable witness of events, eg that her dementia has not affected her reliability, that she was not led in her account and that she is not motivated by malice? |
Evidence:example Evidence:applications, and Evidence Applications:considering evidence ApplicationsCodes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)
5.12As to a), bruising may be related to factors such as age, gender, health status and medication. It is necessary to consider the location, age and pattern of the bruising and any other injuries, the physical indicators of abuse, the behavioural indicators of abuse and the pool of possible perpetrators. Ideally, an applicant requires expert contemporaneous mapping and recording of the injuries by a forensic medical examiner and expert interpretation of the evidence recorded by this examination.
Evidence:example Evidence:applications, and Evidence Applications:considering evidence Applications
5.13Although one would never take a child care order application to court without obtaining this evidence, strangely, in the case of alleged elder abuse this is very rarely obtained; and by the time the case comes to court, it is too late to obtain it.
Evidence:example Evidence:applications, and Evidence Applications:considering evidence Applications
5.14As to b), there are clear evidential problems given the severity of Mrs Smith’s dementia, the passage of time, the fact that the allegations are strongly denied and the number of demonstrably inaccurate allegations made by her in respect of other people.
Evidence:example Evidence:applications, and Evidence Applications:considering evidence Applications
5.15By the time of the trial, the situation facing the local authority is that there are a number of possible explanations and a pool of possible perpetrators of any non-accidental injury. The alleged perpetrator has no relevant history and Mrs Smith has been living with her family for some years with no previous concerns of this kind being raised. On the evidence, it is accepted that Mrs Smith has made other allegations which must be the result of confusion. The key evidential omission was not obtaining contemporaneous medical evidence and a forensic opinion on the significance (if any) of the bruising.
Analysing one’s own case and evidence
5.16The approach adopted in the following table is not a substitute for analysing the evidence and taking appropriate advice in each particular case. It is merely an example of how one can devise a simple structure to test the quality and internal consistency of one’s own case.
| Example 1 | Example 2 | Example 3 |
Type of case | Place of residence dispute | Suitability of a deputy | Contact dispute |
Jurisdiction: can the court do what you want? (the application) | The court may determine P’s place of residence (MCA 2005 s17) | The court may revoke a deputy’s appointment (MCA 2005 s16) | The court may decide contact issues (MCA 2005 s17) |
The local authority’s best interests submission (the submission) | It is in P’s best interests to reside at care home X, not at her own home | It is in P’s best interests to remove his current deputy | It is in P’s best interests not to have unsupervised contact with Y |
What the local authority is alleging/seeking to prove (the findings sought) | Ill-treatment at home by relatives | The existing deputy has stolen money from P | Sexually inappropriate behaviour by Y |
The evidence for the allegation (the facts which prove the allegation) | Bruising P’s oral account | Bank statements Failure to account Failure to explain | Staff observations P’s oral account |
Possible alternative explanations which will need to be ruled out on the balance of probabilities (likely defences) | Innocent alternative cause of the bruising P is an unreliable witness | P gifted the money P has capacity P owed the money Money spent on P | P has capacity/consents P enjoys sexual contact Faulty observation P is an unreliable witness |
Evidence re any less restrictive options | Exclude a particular relative or restrict contact with them? Arrange alternative carers? | Retrospective validation of the transaction if no dishonesty, etc | The friendship is in P’s best interests |
P = the incapacitated person |
Admissibility and weight of the evidence
5.17Evidence is discussed in detail in chapter 12, but nowadays there are few strict rules concerning the admissibility of evidence, particularly in the Court of Protection.
5.18Part 14 of the COPR deals with evidence and the court’s power to control it. Subject to complying with the rules, the court’s discretion and the odd caveat, the general position is simply that to be admissible evidence must be relevant. ‘Relevance’ means relevant to the issues which the court must decide and evidence is relevant if it makes a matter which requires proof more or less probable.
1See Director of Public Prosecutions v Kilbourne [1973] AC 729, 756. As Lord Bingham once noted, contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome.5.19If evidence is relevant, one must next consider the weight which a court is likely to give it, that is how credible and persuasive it is. The case may consist of a mixture of agreed first-hand evidence (things actually said to or observed by a witness), disputed first-hand evidence, valid and invalid inferences from agreed or disputed first-hand evidence, hearsay (agreed or disputed ‘facts’ communicated to a witness), inferences from hearsay, assumptions and suspicions (‘It must be, or is likely to be, the case that …’), professional presumptions, professional opinions, ‘independent expert opinions’.
5.20If a matter is likely to be contested, some of the questions to consider at this stage are:
•Can all of our ‘evidence’ be used in court? (This often raises issues of confidentiality; the availability, willingness and compellability of witnesses; and the unrepeatability of some suspicions and corridor conversations.)
•What are the gaps in our evidence?
•Assuming the facts are as stated, are the inferences that have been drawn valid?
•What are the weaknesses in our case?
•How impressive are our witnesses and how expert is our expert evidence?
•What will the other side be saying or putting to our witnesses?
•Does the other side have any good points and is their evidence accurate and reliable?
•Even if our witnesses are right, do we have sufficient evidence that we can provide a better alternative for the incapacitated person to the situation which we are trying to remedy?
The standard of proof
5.21The standard of proof in Court of Protection proceedings is always ‘the balance of probabilities’. However, to leave it there is an over-simplification. The more serious the allegation the less likely it is that the event occurred. Hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability:
2Re H (minors) (sexual abuse: standard of proof) [1995] UKHL 16 paras 73–75; [1996] AC 563, D–H.The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455:
‘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 substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ in Hornal v Neuberger Products Ltd [1957] 1 QB 247, 266. This approach also provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.
5.22It is also necessary to consider the setting within which the ‘evidence’ was given; as to this, see the observations of McFarlane J (as he then was) in
Re SA:
3[2010] EWHC 196 (Admin).68. When looking at evidence from a witness who is engaged in providing therapy to an individual who then, during the course of the therapeutic relationship, makes statements which are then produced as evidence of the truth, the words of Butler-Sloss LJ in Re D (Child Abuse: Interviews) [1998] 2 FLR 10 must be borne in mind:
‘It is essential to distinguish between interviewing the child to ascertain the facts and interviewing to provide the child with help to unburden her worries. The therapeutic interview would seem to me to be generally unsuited to use as part of the court evidence, although there may be rare cases in which it is necessary to use it.’
69. Often the therapist will alert others to matters of concern arising from the therapeutic interview and the child or vulnerable person may then be subject to an interview aimed at the forensic process – as indeed happened here with the ABE interview. In the event the ABE interview did not provide any evidence to support the local authority case and thus reliance is made on the original statements made to AL. I do not regard AJ’s reports as being inadmissible or to be automatically of no weight, but I do have regard to the observations of Butler-Sloss LJ and, the reasons behind them, in being cautious as to the amount of weight that can be attached to the material that originates from the drama therapy sessions.’
Evidence meeting
5.23Time and resources permitting, there is a lot to be said for having an evidence meeting before issuing what is likely to be a contested application.