When is fact-finding necessary?Fact-finding:when necessaryFact-findingFact-finding:when necessaryFact-finding:best interestsFact-finding(reproduced in full in appendix A)Fact-finding:when necessaryFact-findingFact-finding:when necessaryFact-findingFact-finding:when necessaryFact-findingFact-finding:when necessaryFact-finding(reproduced in full in appendix A)Fact-finding:when necessaryFact-finding:interests of adults lacking capacityFact-findingFact-finding:when necessaryFact-finding:identification of issuesFact-finding
14.3Unlike in applications for care or supervision orders under Children Act (CA) 1989, the local authority (or other applicant) does not need to establish that the adult in question is suffering or is likely to suffer significant harm
1CA 1989 s31(2). The threshold criteria go further than this, but this requirement is at their core. before the court can move on to the second stage of considering whether making the order sought will promote the welfare of the adult. ‘The Mental Capacity Act does not contain provisions equivalent to the threshold provisions under CA 1989 s31(2). Nor should any such provisions be imported in it as clearly Parliament intended that they should not be.’
2LBB v JM, BK and CM [2010] COPLR Con Vol 779 at para 8 per Hedley J.14.4However, that does not mean that the court can necessarily gloss over disputes of fact as to the conduct of those suspected of acting in a way adverse to the adult in favour of a broader-brush analysis of where their best interests may lie. This is for several reasons, the most important of which are that:
•In order for any best interests decision to be made, the court needs to be satisfied as to ‘all [of] the relevant circumstances’ for purposes of the application of the checklist set down in Mental Capacity Act (MCA) 2005 s4. If those circumstances are disputed, it may well be necessary for the dispute to be resolved as a preliminary step to the determination of where the adult’s best interests lie. For instance, if the allegation has been made that a family member has mistreated the adult, it is likely to be necessary for the court to determine whether that allegation is made out in order before it can make any best interests decision about contact with that family member; and
•As Hedley J made clear in
LBB v JM, BK and CM:
3[2010] COPLR Con Vol 779. ‘an intervention with parties’ rights under Article 8 [ECHR] is a serious intervention by the State which requires to be justified under Article 8(2). If there is a contested factual basis it may often be right … that that should be investigated and determined by the court’.
4It is suggested that this approach holds good notwithstanding the subsequent decision of the Court of Appeal in K v LBX and others [2012] EWCA Civ 79, [2012] COPLR 411, (2012) 15 CCLR 112, that the consideration of Article 8 rights follows on from the application of the MCA 2005 s4 checklist; the Court of Appeal was considering a different question: see para 2 of the judgment. 14.5In
Re AG,
5[2015] EWCOP 78, [2016] COPLR 13 at para 30. Sir James Munby set down when it is necessary to have fact finding proceedings in the Court of Protection, by expressly endorsing the approach adopted by Wall J (as he then was) in the pre-MCA 2005 case of
Re S (adult’s lack of capacity: carer and residence).
6[2003] EWHC 1909 (Fam), [2003] 2 FLR 1235. That approach was also set down as being the correct test in the first edition of this work (at paras 15.7 onwards). In this case, concerning a 33-year-old woman, S, the relevant local authority sought declarations as to S’s capacity and best interests as regards her residence, care arrangements and contact with her father. The catalyst for the local authority’s application was an alleged incident of assault by S’s father upon her; it was also alleged that her father had on a number of occasions been drinking and had been unfit through drink to care for her. The father strongly denied both allegations. In a detailed discussion of the relevant legal principles, Wall J directed himself that:
… unlike care proceedings under the Children Act 1989, the exercise of the jurisdiction over mentally incapable adults is not dependent upon any threshold criteria apart from the fact of incapacity and the existence of what Dame Elizabeth Butler-Sloss P described in
Re F (No 2)7Re F (Adult: Court’s Jurisdiction) [2001] Fam 38. at 47 and 521 respectively as ‘a serious justiciable issue’ which requires the court’s adjudication.
8Para 13.14.6Applying
Re A (male sterilisation),
9[2000] 1 FLR 549. Wall J further directed himself that the central question for the court was as to what outcome was in the best interests of the adult.
10Para 14. He continued that both of the factors outlined immediately above, but in particular the absence of any threshold criteria, raise ‘the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues’.
11[2001] Fam 38 para 15.14.7Importantly, Wall J rejected the submission made on behalf of the father to the effect that absent findings of fact which warranted her removal from her father’s care, the local authority would not have made out a case for such removal, and that she should therefore be returned, stating that:
I do not accept that argument. I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified [above] would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.
12Para 18.14.8Wall J continued:
Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?
13Para 21.14.9In this regard, it is, further, important to emphasise that the sole focus of proceedings under the MCA 2005 is (or should be) upon the interests of the adult lacking capacity. They do not exist as a forum to canvass allegations of misconduct save and to the extent it is necessary that such allegations are determined in order to allow the judge properly to determine the application before them. As has been said in the context of private law proceedings under the CA 1989: ‘the finite resources of the court do not exist simply to provide a free-standing medium for one party to obtain, for no reason other than vindication, findings of matrimonial misconduct against the other’.
14AA v NA (Appeal: Fact-Finding) [2010] EWHC 1282 (Fam), [2010] 2 FLR 1173 at para 18 per Mostyn J. The same holds equally true of allegations of misconduct towards the adult without capacity.
14.10In order to assist the court to determine whether a fact-finding exercise: a) will be necessary; and b) (if it is) should be listed as the first part of a split trial process, it is incumbent upon the parties to identify at an early stage precisely what the issues are and precisely what factual findings will be required from the court in order to ground the relief that is sought. This point is discussed further in chapter 10 above. With the drive towards speedier determination of welfare cases before the Court of Protection it is likely that courts will now require some persuasion that a split trial is necessary given the inevitable delay that this will build in to the final resolution of the application.