LB Enfield v SA [2010] EWHC 196 (Admin)

(1) Hearsay evidence is admissible in the Court of Protection. (2) This includes hearsay from a witness who is incompetent by reason of mental disability; however, this lack of competence is an important factor when evaluating the weight to be attached to the evidence. (3) Where P has been interviewed by police in an ABE interview, the DVD should be disclosed to the parties: in general, it would be justified for the Court of Protection to make a "specific disclosure" order under r133(3) requiring "full and frank disclosure" of all relevant material. (4) Where there are extant COP proceedings then, in the absence of an absolutely pressing emergency, any question of interviewing P must be subject to a direction of the judge; initially it may be raised without notice to a party about whom allegations relate, but P's litigation friend should always be given notice. (5) Once findings of fact have been made the case is part heard and the trial should not resume before a different judge.

Summary from Court of Protection 2009 Report

This case considers at length whether hearsay evidence is admissible in the Court of Protection. SA was born in 1979, and is one of seven children. She and her family came to the UK from Bangladesh in 1985. She has leukodystrophy, a degenerative brain disorder. The local authority applied to the Court of Protection on 29 April 2009 for a personal welfare order that would have removed her from the family home, where she is allegedly the victim of physical abuse, and her will is overborne by her parents. It would also prevent her removal from the UK for the purpose of marriage in Bangladesh. The judge held (at paragraph 36) that rule 95(d) of the Court of Protection Rules 2007 gives the court power to admit hearsay evidence which would otherwise be inadmissible under the Civil Evidence Act 1995, section 5. The judgment is largely a preliminary fact-finding exercise, and the judge did not find that any of the allegations of physical assault made by the local authority against the parents had been proved (paragraph 98). However, he did find that the general allegation of parental failure to cooperate with the local authority, and allegations about making arrangements to have SA married were proved.

Citations

[2010] 1 FLR 1836Not on Bailii

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Transcript

Court of Protection: 2009 Report - published 10/6/10 - Summary on page 18