Case No: B4/2011/1932
Neutral Citation Number:  EWCA Civ 431
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE PAUFFLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Friday 2nd March 2012
LORD JUSTICE THORPE
LORD JUSTICE GROSS
MR JUSTICE RYDER
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IN THE MATTER OF G (A CHILD)
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(DAR Transcript of
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Mr Ian Wise QC and Ms Aswini Weereratne (instructed by Messrs Bhatia Best) appeared on behalf of the Applicant mother.
Ms Jenni Richards QC and Ms Victoria Butler Cole (instructed by Shropshire County Council Legal Services Department) appeared on behalf of the First Respondent, the local authority.
Ms Lisa Giovanetti appeared on behalf of the Official Solicitor.
The Third Respondent did not appear and was not represented.
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(As Approved by the Court)
Crown Copyright ©
Lord Justice Thorpe:
1. Proceedings were issued in the Family Division by the relevant local authority on 12 May 2010. They invoked the court's inherent jurisdiction to make attempted orders in relation to a 30-year-old with Downs Syndrome history who was in the exclusive care of her mother. The proceedings were therefore initially constituted between the local authority as applicant, the mother, and a third respondent upon whom I need not dwell since he is not involved in this application, albeit he remains a party to the proceedings.
2. The application resulted in an order made on 12 May without notice by Hogg J and I draw attention only to one paragraph of her order which was to this effect:
"By 4pm on 17 June 2010 AG [the first defendant mother] and the 2nd defendant have permission to file and serve witness statements explaining the basis on which they assert that HG has given informed consent to the repeated publication of details about her private life, sexual and medical history in meetings, letters, emails, broadcasts and the internet."
3. The application issued by the local authority was supported by a statement by the head of the community learning disability team and to his statement he exhibited a historic psychiatric report on HG, a recent psychological assessment on the papers, and a statement from the relevant social worker in the case. So all that evidence was there to support the local authority's application and here at the earliest opportunity the court was not directing the second and third respondents to file evidence but only encouraging them to do so by the grant of that specific permission.
4. Nothing was done by the 17 June and so, when the matter returned on notice before Pauffley J, the only evidence remained the evidence of the applicants in support of that order. The protection had been granted without notice. If it was to be set aside now was the opportunity to challenge and to advance a contrary case supported by relevant evidence.
5. So it is hardly surprising to me that on 1 July Pauffley J extended the protection, extended the injunctions which had been made without notice and firmed up the obligation on the defendants to put in a contrary case. So we see within the order of the 1 July now not a permission but a direction:
"[The second respondent] shall file and serve a statement of evidence by 5 November 2010] relating to:
a. HG's history;
b. HG's activities and interests
c. HG's involvement in the campaigns which are linked to her own history and experiences;"
6. I also draw attention to the fact that the second defendant's consent to a report on HG's capacity was conditional upon her having the freedom to bring in the opinion of an expert of her own choosing and that condition is expressed in paragraph 11 of the order which gave her permission to file and serve by 1 December a report by an independent psychologist on HG's capacity.
7. So there was a case management order designed to carry the issue between the local authority and the respondents towards conclusion with the orderly preparation of a contrary case and with steps for the provision of expert opinion on the important issue of HG's capacity.
8. That order also gave leave to the issue of proceedings in the Court of Protection. There is here an interweaving of two jurisdictions. The jurisdiction of the Court of Protection arising under the Mental Capacity Act is there for the protection of HG in the event that professional opinion establishes that she lacks capacity. If on the other hand she has capacity but is nonetheless not only vulnerable but on the evidence prevented from reaching independent decision by virtue of some vitiating factor, then it is for the same court to protect her under its inherent jurisdiction. The Court of Protection proceedings were issued on 18 February 2011 but the progress that the order of the 1 July was designed to achieve was simply frustrated by the disregard of the provisions for the preparation of the evidence essential to enable the court to try out the issues between the parties. Accordingly on 11 May the Official Solicitor wrote to the court to seek directions due to the failure of the parties to agree on the identity of any expert.
9. So a date was fixed 14 June 2011 for a further hearing before Pauffley J. On that occasion the identity of a suitable expert was not agreed. The Official Solicitor presented to the judge the extreme difficulty that he was facing in finding an expert who was both suitably qualified and also willing and able to undertake the instruction. A Dr Baker, a pathologist, was advanced by the Official Solicitor. He was not agreed by the defendants but nonetheless he was ordered by the judge at that hearing. Again she extended the protection for HG and extended the protective undertakings.
10. Now her order deserves more detailed examination.
11. By paragraph 8 she recorded the permission to the Official Solicitor and the applicant local authority to instruct Dr Baker to carry out an assessment of and to report on HG's litigation and decision making capacity in accordance with the draft letter of instructions within the bundle. Paragraph 11 required that report to be filed and served by 30 November 2011. Equally if not more important is paragraph 13 of the order which again requires the second defendant by no later than 4pm on 30 July to file and serve a statement of evidence relating to the same issues, history, activities and interests and involvement in campaigns. Importantly the judge set a date for the trial. In paragraph 15 she said the matter shall be listed for further hearing reserved to her if available on the first open date after 7 December with a time estimate of one day. The order continues:
"The hearing shall determine the issue of HG's capacity (in the event that there is dispute over this issue) and directions sought by any party for the future conduct of the proceedings."
12. Now what happened? On 4 July the second respondent filed an appellant's notice in this court seeking permission to appeal the order of 14 June 2011. That was the application of the litigant in person and was listed for an oral hearing before me alone on 27 October. At that short hearing I directed that the issues that the second respondent sought to ventilate should be listed for a further oral hearing on notice with appeal to follow if permission granted.
13. It was clear to me that the consequence of that order was to enlarge the prospects of the second respondent receiving public funding to enable her case to be professionally presented. Unfortunately the grant of public funding seems to have been somewhat delayed and accordingly it is only within the last week or so that Mr Ian Wise QC and his junior have been able to focus on the professional presentation of the second respondent's case. I would like to pay tribute to the quality of the work which the team has produced over the last few days. Mr Wise has strategically extended the range of this permission application to attack also the previous order of Pauffley J of 1 July. There is no appellant's notice related to that order but we do have amended grounds of appeal. In relation to the need for an extraordinary extension of time there is no evidence but Mr Wise jointly adopted the suggestion that it was only because the second respondent was so belatedly professionally represented that the application was not sooner made.
14. Mr Wise has produced a very erudite skeleton which he has developed extremely skilfully. He has drawn out arguments as to the basis of the exercise of the inherent jurisdiction in interim cases and interim situations. He has emphasised the statutory language of the Mental Capacity Act which at crucial points emphasises that the policy of the statute is to restrict the judicial power and interference to the absolute minimum necessary to achieve protection or other benefits. He has repeatedly characterised the orders made by Pauffley J as being paternalistic, as being reasoned only on the inadequate consideration of HG's conceded vulnerability. He has repeatedly stigmatised the local authority's evidence as having failed to demonstrate any of the vitiating factors, such as coercion or undue influence, which would justify the interference under the inherent jurisdiction and the imposition of restrictive injunctions. Equally he has emphasised that evidence as to HG's lack of capacity is absent or at best scant. He has said that the statements exhibited to Mr Johnson's affidavit are if anything contradictory and he has emphasised that the burden is throughout on the local authority to prove its case and that the assumption is always in favour of capacity.
15. All that is properly advanced on behalf of the second appellant and it may well be that there is a case that this court will have to consider in due course once the proceedings have developed to a stage which could be characterised as a trial, a proper investigation of the issues that are apparently live between the parties. But it cannot be overemphasised that the attack is directed to case management orders. All that the judge has done has been to seek to bring the issues between the parties to trial. Why have they not advanced? Because the judicial intention has been frustrated by the lack of collaboration, the lack of cooperation, the disregard of court orders on the part of the applicant. There is also a suggestion that most recently she has frustrated the preparation of the report ordered by Dr Baker by not cooperating in practical arrangements for meetings between Dr Baker and HG. The Official Solicitor has produced a letter which clearly requires some response and the response is: well, the letter was never received. That may be the case but that is something that would be required to be investigated at a trial.
16. In situations like this, where on three specific occasions invitations or orders for the production of a contrary case have been ignored, the trial judge is entitled to draw inferences that there may be an ever increasing need for judicial investigation into the reality. The greater the need for investigation the greater the need for caution in the interim. Not to impose protection, in perhaps regard for assumptions which would otherwise be made as to capacity and as to good faith, only expose the admittedly vulnerable adult to an unnecessary risk.
17. I am in no doubt at all in my mind that everything that has been done by the judge is jurisdictionally sound, is within the exercise of a broad discretion and certainly provides no obligation, no necessity on this court to interfere in a way which would only extend the very regrettable delay in the investigation and conclusion of material issues. The sooner that this court pronounces on the applications before it the sooner the case can resume its impetus in the court of trial. What is clearly needed is a very early directions point when the judge can address the failure to file evidence by 30 July, the failure to file the expert report by 11 November and the loss of the fixture on the first open date after the 7 December. I would not extend time in relation to the shadowy attack on the order of the 1 July 2010 and I would refuse the application for permission to appeal the order of 14 June 2011.
Lord Justice Gross:
18. I agree
Mr Justice Ryder:
19. I also agree.
Order: Application refused