Court of Protection case update April 2026

Alison Parr v Cheshire East Council and Anor [2026] EWCOP 1 (T3)

Before Mr Justice Poole

Background

This case concerned an application brought by Alison Parr to be appointed as a personal welfare deputy (‘PWD’) in respect of her then 17 and now 18 year old daughter, Ruby Parr.

The initial application was refused on the papers but then proceeded for reconsideration under r13.4 of the Court of Protection Rules 2017.

In addition, Elaine Willcox, correspondent and presenter on ITV Granada, applied for a variation of the transparency order made, in order to report Ruby’s name and the names of family members.

Both applications were heard together.

Permission was not required to bring an application by someone with parental responsibility for a person who has not yet attained the age of 18 who lacks, or is alleged to lack, capacity under s50(1)(b)of the Mental Capacity Act 2005. Whilst that was true at the time of the initial application when Ruby was 17, for the avoidance of doubt, permission was granted by Mr Justice Poole for both applications.

Ruby has diagnoses of Idic 15 with partial duplication of chromosome 15, severe epilepsy (Lennox Gaustaut syndrome) and global developmental delay. Ruby also has a severe learning disability. Ruby is a wheelchair user. She is unable to talk (however she is able to make some of wishes or needs known), is PEG fed and as a result of her intractable epilepsy, has over 30 seizures a day. She requires constant care at home and can ‘require respiratory and airway support at any time’.

Ruby’s conditions are life limiting and she is at risk of suddenly dying as a result of a number of causes associated with her conditions.

The applicant Ms Parr is a former NHS Nurse who has been Ruby’s full-time carer since 2010. Whilst assisted by paid carers, Ms Parr is the lead carer.

Throughout Ruby’s life, and increasingly in recent years, Ms Parr was concerned regarding the inconsistency in Ruby’s care and support and in communications between professionals and the family. The frustration this caused, which arose in various setbacks including emergency situations, led to Ms Parr issuing this application for a PWD in order to give her a greater voice in manging Ruby’s care and support. Due to Ruby’s needs, ‘countless health and welfare decisions have to be made daily on Ruby’s behalf’ in addition to bigger decisions such as Ruby’s residence, that will fall to be decided at some point in the future.

Capacity

Mr Justice Poole iterated that he had ‘no hesitation’ in finding that Ruby lacked capacity in relation to decisions regarding her ‘personal welfare and health, including treatment decisions.’

Legal framework

The court outlined and gave consideration to sections 16, 1, 4, 17 and 20 of the Mental Capacity Act 2005 in the application for a PWD. In accordance with section 17, a PWD enables a person to make the following decisions:

(1) The powers under section 16 as respects P’s personal welfare extend in particular to—

(a) deciding where P is to live;

(b) deciding what contact, if any, P is to have with any specified persons;

(c) making an order prohibiting a named person from having contact with P;

(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.

Furthermore, Baker J’s judgment in Gv E [2010] 2512 (COP) was considered in relation to the role of Court Appointed Deputies:

– “57 It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care.

– “61 It is axiomatic that the family is the cornerstone of our society and a person who lacks capacity should wherever possible be cared for by members of his family, provided that such a course is in his best interests and assuming that they are able and willing to take on what is often an enormous and challenging task. That does not, however, justify the appointment of family members as deputies simply because they are able and willing to serve in that capacity. The words of section 16(4) are clear. They do not permit the court to appoint deputies simply because “it feels confident it can” but only when satisfied that the circumstances and the decisions which will fall to be taken will be more appropriately taken by a deputy or deputies rather than by a court, bearing in mind the principle that decisions by the courts are to be preferred to decisions by deputies.”

Additionally, Mr Justice Poole referred to what he considered to be ‘essential reading’ for PWDs, namely the guidance given by Mr Justice Hayden in Lawson, Mottram and Hopton [2019] EWCOP 22 which Mr Justice Poole summarised to be as follows:

The starting point when evaluating an application for the appointment of a PWD is to refer to the clear wording of the MCA 2005.
Adulthood brings with it an altered legal status with rights and responsibilities predicated on respect of autonomy.
In the majority of cases the most likely conclusion will be that it is not in the best interests of P for the court to appoint a PWD but there is no presumption against appointment.
The Code of Practice is an interpretative aid to the statute, no more no less.
P’s wishes and feeling and the other factors contemplated by MCA 2005 s4(6) require to be considered.
The appointment of a PWD is not a less restrictive option than collaborative and informal decision taking prescribed by MCA 2005 s5.
The wording of Code of Practice at 8.38 – “deputies for personal welfare decisions will only be required in the most difficult cases” – is not to be regarded as the starting point and ought to be revised.

Judgment

The court stated that it has ‘no doubt’ that Ms Parr is ‘highly attuned’ to Ruby’s needs and always acts in accordance with what she believes are to be Ruby’s best interests.

The court firstly, considered the similarity between very common Lasting Power of Attorney’s which are made by adults with capacity, and PWD appointments which are comparatively rarer. Mr Justice Poole considered how the wording within the MCA 2005 ‘jealously’ guards adult autonomy and discouraged PWD applications. However, ultimately, the court determined that a person of Ruby’s cognitive functioning will never be in a position where they will have the capacity to make decisions about their own personal welfare.

Whilst Ruby’s wishes and feelings regarding the application cannot be ascertained, the court was sure that Ruby would have “unconditional trust in her mother.” Ruby’s close family members and those that professionally care for her unanimously supported the application and viewed the proposed appointment as being in Ruby’s best interests.

The court noted that Ms Parr was uniquely placed to make decisions about Ruby’s residence and day to day care. The court accepted that her professional background as a Nurse, accompanied by working with others through Ruby’s fund has given her a deep insight into Ruby’s complex needs. Further, the court noted that the appointment of Ms Parr as a PWD does not relate to a single decision but instead a serious of decisions, in addition to the daily decision making required. Decisions with Ms Parr appointed as a PWD would be able to be swift and appropriate, which was a notable deficit of the circumstances that gave rise to the application. The court noted that it has regard to the fact that a PWD does ‘not entitle Ms Parr to act as she wishes at all times’ and would be bound to act in Ruby’s best interests.

The court was therefore in ‘no doubt’ that the requirement for making a PWD order were met and that such an order was in Ruby’s best interests. As such the application was granted and Ms Parr was appointed as Ruby’s PWD.

In light of Ruby and her mother’s previous appearances on ITV local news, Ruby’s community status through her being an ambassador for Ruby’s fund, Ms Parr’s support for the application, no opposition from the Local Authority nor the ICB, and the lack of apparent detriment foreseeable to Ruby or her Article rights through the publication of her name, the court granted Ms Willcox’s application for there to be no prohibition on naming Ruby and her family members.

Full Judgment: Alison Parr v Cheshire East Council & Anor

London Borough of Lewisham v SL & Anor [2025] EWCOP 51 (T3)

Before Mrs Justice Theis

Background

This matter concerned an application brought by the Local Authority in respect of SL, a 30 year old woman, to authorise a deprivation of liberty at home. DL, who is SL’s mother is also a party to proceedings.

There was a large measure of agreement between the parties, with all parties agreeing that SL should remain residing with her parents and by the conclusion of the evidence, the Local Authority were in agreement with DL’s and SL’s proposed six-month pause before introducing any alternative placements to SL.

SL developed epilepsy in 2010 which causes uncontrolled seizures, clusters of seizures, absences, nocturnal motor fits, and myoclonic jerks. In 2011, SL was diagnosed with atypical autism. Further, SL is assessed to be functioning with a mild to moderate range of intellectual impairment.

SL is a crack cocaine user and this has contributed to a ‘significant history of absconding’. When she absconds, SL is exposed to significant risk of physical, emotional and sexual harm, for example, in June 2024, she had to be put in an induced coma for 18 days having absconded, taken cocaine and suffered a seizure.

SL has been assessed to lack capacity to conduct proceedings and make decisions about residence, care and support and she was considered to have capacity to make decisions about contact with others and sexual relations.

The Local Authority initially sought a transition to a supported living placement however by August 2025, 21 supported living providers had been approached and all either had no appropriate accommodation to offer or declined to offer SL a place. At present, two care providers currently assist SL in the family home and accessing the community. The Local Authority expressed a willingness to financially support DL in securing respite for SL to attend.

DL recognised in her evidence that whilst SL currently resides in the family home, due to DL and her husband’s increasing age, the long term will require SL to live away from home. However, in the immediate future, DL considered it to be in SL’s best interests for her to remain residing in the family home and for the Local Authority to apply more of a filter when proposing placement options in order to avoid undue stress on SL. Further, DL believes the risk of SL absconding is reduced when she is appropriately occupied.

Legal framework

Given that there was no dispute that SL lacked the relevant capacity, the consideration for the court was whether the proposed plan for residence and care was in her best interests in accordance with the MCA 2005 set out as follows:

“1 The principles

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

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

4 Best interests

(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a) the person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3) He must consider–

(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

…

(6) He must consider, so far as is reasonably ascertainable–

(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of–

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare

…

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

…

(10) “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11) “Relevant circumstances” are those—

(a) of which the person making the determination is aware, and

(b) which it would be reasonable to regard as relevant.”

The court had consideration to the guidance by Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67 which lays out that decision makers must look at welfare.

[39] ‘…in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question…they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be’.

[45] ‘…The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament.’

Judgment

The court considered that whilst risks remain to SL by continuing to live at home, this was ameliorated in the short term by the care package that was in place. The court noted that this accords with SL’s wishes and she remains in a familiar environment with carers who are well known to her.

The court outlined the following areas where it expects a renewed focus:

‘Solution focussed planning’ in order to facilitate SL undertaking more activities in the community and engaging with people who were closer in age to herself.
For the Local Authority to be more creative in sourcing respite care for SL which could include respite taking place at home with known carers whilst DL and TL are out the home and for SL to have day trips that are of interest to her.
For the social worker to establish a working relationship with the family.
For a plan to be agreed between parties in relation to the ‘essential requirements for any placement for SL’
For the Local Authority to give ‘active consideration’ to an ‘informed structure of decision making, perhaps through a Multi-Disciplinary Team structure’, with regular meetings with those who have direct knowledge of SL to assist with a dynamic and transparent system of decision making.

The court hoped that with this revised approach, it would allow the Local Authority to continue searching for placements for SL within this settled period and that her engagement with college and receiving therapeutic support will enable her long term best interests to be met.

Full Judgment: London Borough of Lewisham v SL & Anor

Royal Free NHS Foundation Trust v EF and Ors [2025] EWCOP 52 (T3)

Before Mr Justice McKendrick

Background

This case concerned EF, a 44 year old man with Down’s Syndrome. Further, EF has kidney failure and requires dialysis thrice a week in addition to medication. NN, EF’s father, was a party to proceedings.

The court was faced with the decision as to whether or not EF was to be removed from the care of his father and their home, where he had lived throughout his life in order to ensure that EF receives the requisite amount of dialysis and medication. EF first showed signs of kidney damage in 2022, and due to lack of compliance with recommended treatment and appointments, the condition progressed to severe renal impairment and since 2024, EF has required dialysis.

Since 2024, EF had missed many dialysis sessions and had often not stayed for the full duration. This resulted in EF’s dialysis being chronically inadequate, putting him at risk of sudden death or various other complications notwithstanding an order of the court requiring NN to facilitate EF’s attendance at these sessions.

At the outset of the hearing, EF attended and was advised by Dr X that he urgently needed to go to hospital in order receive dialysis and to be treated for a potential infection.

Dr X concluded that if EF continued to not consistently attend dialysis, his life expectancy would be significantly reduced. However, if he received optimal dialysis moving forwards, EF had a 55-70% chance of survival at 10 years whereas if he received no further dialysis at all, his life expectancy would be measured in weeks.

NN expressed an ‘entrenched mistrust of professionals’ and also a ‘considerable influence over EF’s views’. NN does not believe that EF has kidney damage nor that he requires dialysis.

Dr T, clinical psychologist, gave evidence to that effect that any attempt to assist EF’s understanding of his condition and his need to have treatment are unlikely to be successful whilst EF remains subject to his father’s influence. However, Dr T also iterated that if EF were to be accommodated away from NN and have such contact restricted, this would pose a risk to EF’s mental health. This was a significant consideration in light of EF’s detention under the Mental Health Act in 2010 due to a significant breakdown in his mental health.

The alternate placement to EF remaining at home with NN was a supported living placement. NN did not challenge the placement itself but instead simply wished for his son to remain residing with him. EF wished to continue to live with his father.

Legal framework

The court had regard to sections 1 and 4 of the MCA 2005 in relation to best interests in combination with the dicta of Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67; [2014] AC 591:

The ‘role of the court and its proper focus’ were outlined at paragraphs 18 and 22:

“Its [the court’s] role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.
Hence the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

Lady Hale encapsulated the best interests test and held the following:

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

Baroness Hale’s description of the way the court is to approach the patient’s wishes and feelings in the context of the section 4 factors is set out as follows:

[45] ” The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament.”

Furthermore, the court had regard to the judgment of Baker J in W v M [2011] EWHC 2443 (Fam):

[222] “The principle of the right to life can be simply stated but of the most profound importance. It needs no further elucidation. It carries very great weight in any balancing exercise.’

The court further considered the importance of accommodating both EF and NN’s human rights under the Human Rights Act 1998 in reaching its decision.

Analysis

The applicant Trust, the Local Authority and the Official Solicitor all submitted that EF lacks capacity to conduct the proceedings, make decisions in respect of his medical treatment, make decisions about his residence and make decisions about contact with his father. NN expressed in his oral evidence for the first time that he believes EF to have the capacity to make the decision regarding his residence. The court was satisfied that EF lacked capacity in all of the domains set out above and made final declarations.

The court considered that were the issue of dialysis and medication absent from this case, the separation of EF from his father would not have been sought by the Local Authority. Whilst the wider best interests include the benefits of supported living, the application was brought by the Trust because of NN’s failure to facilitate EF’s dialysis and medication to the degree that separation became considered necessary.

The court concluded that NN is incapable of ensuring that EF receives regular and sufficient medication and dialysis. In addition, the court accepted Dr X’s evidence regarding EF’s life expectancy and accepted that EF’s quality of life is significantly impaired because of symptoms caused by insufficient and infrequent dialysis.

The court determined that the best interests evaluation is clear: ‘both the quality and the length of EF’s life strongly weigh the best interests balance toward separation from his father to ensure he receives regular and sufficient dialysis and medication to keep him as healthy as possible.’ The court was clear that this was a life and death situation and as such, must not be downplayed. NN had been given ‘every’ and repeated opportunities to comply with directions to facilitate EF’s dialysis and medication and had repeatedly failed to do so.

Therefore, whilst EF would live alone for the first time, miss the daily contact with his father and the familiar environment of his home and as such there were potential risks to EF’s mental health, this had to be weighed against other factors. Given EF’s enjoyment of life and his wishes and feelings reflect a wish to live, this was a factor that carried particularly great weight in the court’s analysis. Therefore, whilst factoring in EF and NN’s respective Article 8 rights, the court ultimately decided that it was in EF’s best interests to move to the supported living placement.

The court authorised the deprivation of EF’s liberty at the supported living placement on the grounds it was necessary and in EF’s ‘best interests to keep him safe’.

Full Judgment: Royal Free NHS Foundation Trust v EF & Ors

SW and Nottingham City Council [2025] EWCOP 53 (T3)

Before Mr Justice Poole

Background

This case concerned an appeal brought by SW, husband of JW who is the protected party, against the decisions of the first instance Judge made after a Court of Protection Fact Finding Hearing.

The appellant raised thirteen grounds of appeal however the central challenges ultimately relied on the fact that Judge had failed to make the findings with reference to the finding sought or at all and that the Judge had ‘failed to weigh the evidence in relation to the findings sought’ and so failed to give adequate reasons.

JW and SW have been married for over 29 years and lived together in their own home until 2023. SW has a diagnosis of muscular dystrophy and consequently has been a wheelchair user for a number of years and is now predominantly bed-bound.

JW has been assessed as having borderline intellectual functioning and has diagnoses of OCD and long-standing depression. JW was admitted to hospital with a life-threatening leg infection in July 2023 and as SW could not be left alone, he was moved into a care home. Upon JW’s discharge from hospital she was discharged to the same care home. Following her discharge from hospital, JW was also now a wheelchair user.

After some time living together in the same care home, the care home raised concerns that SW’s conduct towards JW was controlling and coercive. As a result, the care home gave notice to JW and SW and the Local Authority issued an application to the court of in April 2024.

An interim best interests decision was made that JW should reside in a separate placement from SW and that contact between them should be restricted.

A psychologist report was undertaken in respect of JW which concluded that ‘she severely minimised the risk of living with her husband’ and ‘was unable to use or weigh the positives and negatives of contact’. Dr Todd concluded that JW lacked capacity to make an informed decision regarding contact with others, the internet and social media use owing to borderline intellectual functioning.

A finding of fact hearing was ordered to determine the allegations of coercive and controlling behaviour of SW in order to determine whether JW lacked capacity regarding contact with her husband, as the assessment was dependent on her ability to use and weigh the Local Authority’s concerns which would be redundant if such allegations were unsubstantiated.

The Local Authority’s Schedule of Allegations contained seven allegations. The first six related to specific behaviours and the last was general allegations of coercive and controlling behaviour.

Legal framework

A Local Authority v JB [2021] UKSC 52, [2022] 3 All ER 697 was considered by the court to provide a ‘clear structure’ for determinations for capacity.

The judgment of York City Council v C [2013] EWCA Civ 478; [2014] Fam 10 by McFarlane LJ outlines the following:

“For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
“[78] … the second question that the court is required to address under s 2(1) is whether that inability is ‘because of’ an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain.”

The court noted an important distinction that being a victim of coercion and control is unlikely to be found to be an impairment of or a disturbance in the functioning of the mind or brain.

The court considered the case of Re H-N [2021] EWCA Civ 448 which provides guidance that the approach for presenting coercive and controlling behaviour should be a central allegation and:

“Any other, more specific, factual allegations should be selected for trial because of their potential probative relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation is so serious that it justifies determination irrespective of any alleged pattern of coercive and/or controlling behaviour”

In relation to the Schedule, the court noted that good practice may have been to have produced a narrative statement of the relationship and then include specific examples of abuse and then evidence as to start and end dates of such.

The law on appeal

“An appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which exceeds the ambit within which reasonable disagreement is possible and is plainly wrong.”

The Judgment of first instance must be considered on appeal in its totality. The approach was summarised in Re F (Children) [2016] EWCA Civ 546 as follows:

“22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis.”

Lewison LJ’s judgment in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 55 clarifies how the court should approach finding of fact appeals:

“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include,

i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

ii) The trial is not a dress rehearsal. It is the first and last night of the show.

iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court and will seldom lead to a different outcome in an individual case.

iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi) Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.

It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted.”

The position was further outlined in Volpi and ors v Volpi [2022] EWCA Civ 464 :

“i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”

The court also made reference to two of the cases presented by the appellant namely Re A (A Child: Adequacy of Reasoning [2019] EWCA Civ 1845 (Re A), ‘the judge’s conclusions as eventually expressed were inadequately reasoned and further that there are too many actual or arguable deficiencies in the structure and content of the judgment for it to be upheld’ and Re W (Fact Finding: Hearsay Evidence) [2013] EWCA Civ 1374 (Re W) where the appeal was allowed on the basis of the inadequacy of the reasons provided.

Re A:

“[34] It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge’s conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.”

Re W:

“What that meant here was, in my view, that the judgment had to show first, which features of the evidence the judge considered to be significant in pointing towards there having been abuse, secondly that these features had been considered critically in the light of the features that undermined that hypothesis or pointed away from it, and thirdly, why it was, having weighed all of this up, the Judge found the Local Authority’s case established.”

The appeal

In his judgment the first instance judge referred to his task:

“In my judgment my task is indeed two-fold. I must establish the basic facts or patterns of behaviour. I must also look at SW’s motivation and/or intention and judge the impact on JW in terms of harm, abuse and impact. I must take account of the totality of the evidence and only make basic factual findings or the more descriptive finding of coercion and control if satisfied on the balance of probabilities, the burden remaining firmly on the Local Authority throughout.”

He then moved on to give pen pictures of the evidence he had heard.

The first instance Judge ultimately found that the Local Authority had made out their case in five of the areas on the Schedule with financial control not being proven and in addition, that he did not wish to go further, as invited to do by the Local Authority, and categorise the coercive and controlling behaviour as amounting to abuse.

The appellant advanced thirteen grounds of appeal which essentially contended that the Judge had ‘failed to provide any analysis of the evidence and failed to give any or any adequate reasons for his conclusions’ nor did he explain how he resolved the differences between the social worker’s and the Local Authority’s cases where such differences existed.

Judgment

The Judge rejected the first ground of appeal on the basis that whilst the Judge had not set out the history of the relationship between JW and SW in his judgment, he was very familiar with the case and did make reference to the relationship and its dynamics.

The second ground of appeal was rejected on the basis that the court could not identify any errors of law in the Judge’s approach to the fact finding exercise.

The third ground of appeal was rejected on the basis that the assertion that discretion is to play no role in fact finding was perfectly appropriate and thus does not form a suitable basis for appeal.

The fourth ground of appeal regarding the Judge accepting the opinion of witnesses was rejected on the basis that whilst the Judge should not rely on opinions of witnesses as evidence, he was perfectly entitled to agree with such opinions.

The fifth ground of appeal that the Judge had failed to consider the wider issues, namely whether the parties’ relationship was abusive, this should have been used to approach the broader question. This was rejected on the basis that it was ‘clear from the judgement that the Judge did consider wider issues when determining whether the relationship was abusive’.

Grounds of appeal 6-12 were considered together on the basis ‘they appear to be at the core of the appeal and significantly to overlap: the essence of these grounds is that the Judge failed to have adequate regard to the evidence, failed to analyse or weigh it in the context of competing accounts or at all, and reached a conclusion without any or any adequate reasons or reasoning.’

It was acknowledged that the Judge did not specifically refer to any specific document within the bundle and his analysis of the Local Authority evidence relied upon was confined to one paragraph of his judgment. However, his judgment was clear that he found the evidence upon which the Local Authority relied to be ‘consistent and compelling’, that he did not find social worker’s evidence credible and that the factual accounts raised by the Local Authority were established. The Judge, whilst other Judges would have done, was not required to ‘address each specific alleged incident’ and some analysis was performed.

Whilst it may have been ‘unpalatable for the social worker’, the Judge simply accepted all of the Local Authority’s factual accounts as set out in their Schedule. His brief analysis shows that he did not adopt them without thought. Furthermore, a nuanced determination was given in relation to Ground 7, regarding the relationship being abusive.

Ground 13 was rejected on the basis that the remote presence of witnesses at the hearing could not be considered to have made any difference to the Judge’s conclusions.

Ultimately, whilst ‘the procedural pathway to the fact finding hearing in this case was problematic and the presentation of the findings sought was not particularly conducive to achieving clarity’, the appeal was dismissed on all grounds in the absence of a “discernible error of fact or law. The Judge was entitled to make the findings that he did on the evidence before him. His judgment was coherent and his reasons were adequate. There was no procedural irregularity rendering the proceedings or the judgment unfair.”

The court recommended that the parties draw up a schedule of findings and that the proceedings should continue on their delayed course before the same Judge.

Full Judgment: SW v Nottingham City Council & Anor

Lamis Fahad and Caitlin Smithey are 2nd Six Pupil Barristers at Spire Barristers.