Re CM; LBB v JM (2010) COP 5/2/10

"The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified."

Summary and comment

The following has been reproduced with kind permission from 39 Essex Street's April 2011 newsletter (link below).

Summary

This case, a transcript of which has only recently been made available, is a judgment of Mr Justice Hedley in a case concerning allegations of sexual abuse against the step-father of an incapacitated young adult. It is of interest because of general comments made about cases in which a public authority seeks to interfere with the Article 8 rights of family members by preventing or imposing restrictions on contact, on the basis of safeguarding concerns.

The judge said this:

The local authority took the view that since the intervention of the court would engage a potential breach of the Article 8 rights of the parties, that it may be incumbent upon them to establish on a factual basis why it was that the court's jurisdiction should be exercised. Broadly speaking, I would endorse that approach and recognise that where an Article 8.2 justification is required then the case should not be dealt with purely as a welfare case if there are significant factual issues between the parties which might bear on the outcome of the consideration under Article 8.2 as to whether state intervention was justified.
The Mental Capacity Act does not contain provisions equivalent to the threshold provisions under s.31.2 of the Children Act. Nor should any such provisions be imported in it as clearly Parliament intended that they should not be, but an intervention with parties‟ rights under Article 8 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, as undoubtedly it was in this case, that that should investigated and determined by the court.

The judge also confirmed that the burden of proof in establishing factual allegations lies on the public authority, and that the standard of proof is the balance of probabilities.

On the facts of the case, the judge found that there was unacceptable physical contact, though not sexual abuse. It did not follow from this that there should be no contact with P. Indeed, the judge considered in some detail methods of indirect contact and arrangements that might be made to enable P to have supervised contact with her step-father in the future, even though P was presently saying that she did not want to see him.

Comment

The judgment will be of particular interest to local authorities, as it demonstrates the gap between safeguarding concerns being raised, and obtaining findings of fact within the court that provide a sufficient basis for substantial restrictions on contact. In the authors’ experience, it can be easy for a local authority to assume that a history of suspicious incidents and safeguarding alerts will translate easily into declarations restricting or banning contact, when in reality the process is much more complicated. Common difficulties include a lack of direct witness evidence due to the circumstances of the suspected abuse or simply the lapse of time and the movement of staff, and by the absence of consistent or sometimes of any evidence from P him or herself.

The decision also ties in with the recent exhortation of Mr Justice Charles in the case of Re P; A Local Authority v PB [2011] EWHC 502 (COP), the parties should work to ensure that fundamental disputes of fact are resolved at an appropriate (and often early) stage in proceedings.

External link

Transcript

39 Essex Street, 'Court of Protection Newsletter' (issue 7, April 2011)