Ties that bind?

A High Court judge has made some significant comments on how much courts should - in the absence of binding authority - take notice of first instance judgments when considering issues of capacity, says the Court of Protection team at 39 Essex Street.

In LB Haringey v FG & Ors (No.1) [2011] EWHC 3932 (COP) proceedings were brought by the London Borough of Haringey regarding the welfare of a young woman, HG.

As a preliminary issue, Hedley J had to decide whether HG had the capacity to litigate, and also whether she had the capacity to decide where she should live; where she should be educated,; decide on the extent of the contact and relationship she should have with her natural family; to deal with her financial affairs, and to enter into what was described as a tenancy agreement. [1]

Hedley J conducted a detailed analysis of the evidence as it related to HG’s capacity in each of these domains, and concluded that she lacked capacity in each regard. For present purposes, perhaps of most significance is what he then said by way of conclusion at paragraph 21, where he noted by way of a final comment:

“I have been referred to the decision of Mr Justice Baker in PH v A Local Authority [2011] EWHC 1704 (Family). This is a considered decision on capacity, and one that is undoubtedly helpful, particularly in relation to its analysis of the law between paragraphs 13 and 16. I have deliberately not referred to it in this judgment, not because it is unhelpful or because I disagree with it, but because it seems to me that unless and until there is any binding authority available, courts may be safest in an approach to this case by ascertaining the facts, applying the statutory principles and reasoning a conclusion from that, and treating each case as one to be decided on its own facts.

“I say that so as to avoid a multiplicity of first instance judgments being cited as a matter of course in these cases. It may be that parties and advisors and those who have to operate this system will find the individual expressions of judges helpful, but debates in proceedings about saying the same thing in many different ways does not seem to me helpful, particularly, where, as here, no doubt increasingly so in the future, the question of capacity will be determined summarily as a preliminary issue prior to the determination of welfare which is probably, in most of these cases, what is going to be upper most in the minds of all those who engage in them.”  

Comment

Whilst we do not set out here the detail of Hedley J’s assessment of HG’s capacity to take the decisions in question, they stand (a little ironically, given his comments in paragraph 21) as a model of the exercise which we would commend to our readers.  

His comments at paragraph 21 chime with those that he has subsequently made in A Local Authority v H [2012] EWHC 49 (COP) in which he expressly decided to return to first principles in considering the question of whether H had the capacity to consent to sexual relations, only turning to previous first-instance authorities in essence by way of a cross-check.

They also stand as a salutary reminder against over-burdening already groaning Court bundles with authorities in circumstances, where, as the President reminded us in RT v LT and Anor [2010] EWHC 1910; [2010] COPLR Con Vol 1061, “what we now have is the Act (as amended) and the essential judicial task is to apply the plain words of the statute to the facts of the case before the court.” [2]

LB Haringey v FG & Ors (No.2) [2011] EWHC 3933 (COP)

Having determined that the relevant individual, HG, lacked the capacity to litigate and take relevant decisions as a preliminary issue in LB Haringey v FG & Ors (No.1) [2011] EWHC 3932 5 Hedley J went on to make a series of decisions as to what lay in her best interests, in particular whether she should continue to be accommodated by the local authority or to return home to live with her mother. With no disrespect to Hedley J or, indeed, to HG, there are no features in his judgment which call for specific comment save perhaps, two, namely:

(a) as with B v M [2010] EWHC 3802 (Fam) [2010] COPLR Con Vol 247, this was a case which had started out as proceedings under the Children Act 1989 but were then transferred to continue under the MCA 2005 given HG’s age;

(b) Hedley J met HG before evidence was given, meeting with her in the company of the solicitor instructed by the Official Solicitor and the Official Solicitor’s representative, and reporting in open court the conversation he had had with her. Hedley J did not given any specific reason for having taken this step, but it is one that in our respectful submission is one that could fruitfully be adopted in many more cases where the nature of P’s particular disability allows.

This article was written by the Court of Protection team at 39 Essex Street.                                     

[1] It would appear that Hedley J had some considerable doubts as to whether the agreement in question was in fact a tenancy agreement, but it made no difference as he concluded that HG lacked the capacity to enter into any form of legal relationship (paragraph 20).

[2] Paragraph 49, although the President rejected the submission in that case that all the pre-Act jurisprudence was irrelevant.