In Nottinghamshire County Council v SV & Anor [2025] EWCOP 37 (T3), Lieven J has provided a helpful recap of the approach to the question of when it is necessary to carry out a fact finding hearing in the context of Court of Protection proceedings.
As she noted:
48. Finding of fact hearings are relatively rare in Court of Protection cases. The need for them was considered by Munby P Re AG [2015] EWCOP 78 at [29]-[31] where he confirmed that, unlike in care proceedings in relation to a child, there is no requirement to establish “threshold” in the case of proceedings in relation to an adult in the Court of Protection.
49. Given that there is no threshold requirement in the MCA the question arose as to whether and when factual findings would be necessary. The former President expressly endorsed the pre-MCA 2005 decision of Wall J (as he then was) in Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam) at [18] and [21] (emphasis added):
“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified in para [16] would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.
21 Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case, it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”
In An ICB v G & Ors [2024] EWCOP 13 Hayden J held at [22]-[23]:
“Fact-finding hearings at Tier 3 in the Court of Protection are extremely rare. Junior Counsel in this case tell me that they are conducted more frequently at Tier 1 and 2, especially at Tier 2. I have been surprised to hear that. I can see no obvious reason why this should be the case. For my part, I do not think that in this sphere of law, they have quite the same practical utility that they can have in the Family Court. In the Court of Protection, the range of welfare options for P is frequently very limited and unlikely to vary very much in response to a shifting factual matrix. In determining whether a fact-finding hearing should be convened, Judges must consider, rigorously, what real purpose it is likely to serve i.e., from the perspective of informing decisions relating to P’s welfare. Such hearings are inevitably adversarial and invariably generate further hostility. This is inherently undesirable. Delay in reaching conclusions is inimical to P’s best interests. In a very pressing and literal way, time is often not on P’s side. Delay can only be justified if it is identifiably purposeful … However, I am satisfied that the gravity of the allegations here and the nature of the family’s responses has made such a hearing unavoidable. It has clear resonance for the central welfare issues i.e., as to where G will live and whether or to what extent it will be in her best interests further to promote her relationship with her family. This disagreeable truth, I very much regret to say, must be confronted.
As I have intimated above, fact-finding hearings in the Court of Protection, as in the Family Court, require tight judicial control and an unswerving focus both on their scope and ambit as well as on purpose…” [emphasis added]
50. Cobb J (as he then was) considered the need for fact finding hearings in CoP in LBX v TT [2014] EWCOP 24 at [44]-[51]. He referred to the overriding objective in the Court of Protection Rules to deal with cases justly, expeditiously and fairly [44] and the duty in rule 5 to actively manage cases, including considering the proportionality of the costs incurred. Cobb J then went on to apply the caselaw on fact finding in Children Act 1989 cases by analogy, see [46] to [51].
51. I agree with Cobb J that the issues that a judge in the Court of Protection will have to consider in deciding whether to order a fact-finding hearing are similar, although not precisely the same, as those in the Family Court when deciding the same question.
52. In the context of Children Act 1989 cases there are some well established tests for whether a fact finding hearing should be directed, as set out by the Court of Appeal decision Re H-D-H (Children) [2021] 4 WLR 106, which reiterated the principles espoused in A County Council v DP [2005] 2 FLR 1031, at [22] Peter Jackson LJ said;
22. The factors identified in Oxfordshire should therefore be approached flexibly in the light of the overriding objective in order to do justice efficiently in the individual case. For example:
(i) When considering the welfare of the child, the significance to the individual child of knowing the truth can be considered, as can the effect on the child’s welfare of an allegation being investigated or not.
(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
23. These are not always easy decisions, and the factors typically do not all point the same way: most decisions will have their downsides. However, the court should be able to make its ruling quite concisely by referring to the main factors that bear on the individual case and identifying where the balance falls and why. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise.
53. It is also relevant to consider the tests set out by the Court of Appeal for holding fact finding hearings in private Family Law cases in K v K [2022] EWCA Civ 468 at [66]:
“At the risk of repeating what has been said at [37] in Re H-N and at [41] above, the main things that the court should consider in deciding whether to order a fact-finding hearing are: (a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order, (b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child, (c) whether fact-finding is necessary or whether other evidence suffices, and (d) whether fact-finding is proportionate.”
54. In my view the overall approach to whether or not to hold a fact finding hearing is analogous between Children Act cases and Court of Protection cases.
Summarising her conclusions, Lieven J directed herself that:
55. The facts which are sought to be found must have a direct impact on the welfare decisions that need to be made in respect of P. The fact finding must be “necessary” for the determination of those welfare decisions. The fact finding exercise must be proportionate to the issues that need to be determined. In determining proportionality, the likely cost to public funds, the time taken and the impact of delay on P are all relevant considerations.
Applying that approach to the complex factual matrix before her, in proceedings which had become extremely protracted, Lieven J had little hesitation in concluding that there was no need to hold a fact finding hearing in circumstances where:
56. On the issues in this case, as they now stand, it is neither necessary nor proportionate for a fact finding exercise to take place. There are two matters for determination about SV’s best interests under the MCA 2005 – where should SV live, the care and support he receives and what contact should he have with MB [his husband]. It is also important to have closely in mind that SV and MB are married and, therefore, any order that requires them not to live together or limits/prevents their contact, is an interference in their Article 8 ECHR rights (the right to family life). However, Article 8 is a balanced right, and an interference can be justified under Article 8(2).
57. Critically here, SV has made it entirely clear that his wish is to remain living at Option 4. In the light of those clearly expressed and consistent wishes it is inconceivable, quite apart from the safeguarding issues, that any Court would order him to leave Option 4 and live with MB. Albeit extremely late in the day, MB now accepts that there is not going to be an order of the Court of Protection that SV live with or be cared for by him. Therefore, no fact finding exercise is necessary for the determination of that issue.
58. In respect of contact, again, the answer lies to a considerable extent in SV’s wishes and feelings. In principle, the Court could order that a married couple, where one party lacks capacity, cannot have contact with each other. However, that would be a highly intrusive order where the Court would have to consider justification very carefully. If contact can be managed safely, so that SV’s physical, psychological and emotional well-being can be protected, and SV wishes for some contact, then in my view the correct approach is to seek to facilitate such safe contact.
59. Albeit in quite a limited and very cautious way SV appears to want to at least try some contact with MB. He spoke to me about some form of “remote” contact first, and then maybe seeing MB once or twice per month. So long as this can be facilitated in a way that gives SV the time and space to process the experience and then be in a position to express his wishes and feelings, in my view it is in his best interests to test out some limited contact.
60. The parties have now agreed a Contact Plan that leads from some indirect contact, in the form of either cards or letters or voice notes, to trialling supervised contact if it appears that is what SV wishes. If this all goes well and after being given time SV wishes to continue with contact, then there can be a gradual build up of contact. The Contact Plan includes clear expectations upon MB about his behaviour both to SV, but also to the professionals who work with SV and who will supervise contact. There are also a number of topics which MB has agreed not to discuss with SV, such as where SV lives and the ownership of some jewellery which seems to be disputed.
61. It may be that the Contact Plan fails and either SV makes clear that he does not wish to continue, or MB finds it impossible to manage his behaviour during the implementation of the Plan. However, given that SV and MB are married, and SV’s apparent wishes, a failure to at least try to re-establish contact would not be justifiable under Article 8(2).
62. In determining that no fact finding hearing was necessary here I have taken into account; (1) SV’s recently expressed apparent wish to have some contact with MB; (2) the fact that such contact can be managed safely and in a way that fully protects SV through the Contact Plan; (3) that a fact finding hearing would take two more days of the very limited time available for Court of Protection hearings at Tier 2 level; (4) the disproportionate cost in public funds given the very limited issues that actually needed to be determined and the fact that all the lawyers in the case are paid in some way by public funds.
64. Therefore, I will order that SV continue to live and receive care and support at Option 4 and that contact with MB is progressed in accordance with the Contact Plan.
Comment
This is a characteristically no-nonsense decision from Lieven J, and a helpful summary of the case law. It may be time for a Practice Direction to crystallise the case law into clear guidance which does not require local authority (and other) lawyers to ferret about on Bailii or the Court of Protection Handbook (other textbooks are available) to work out the approach to take. That Practice Direction could also (optimistically) seek to provide guidance about what to do when a fact finding hearing is required as regards moving to what is a very different mode of preparation and analysis to that which is required in other types of hearings before the Court of Protection.
