Fluctuating capacity, emotional dysregulation and public protection: a swansong for Hayden J

The case of A Local Authority v H [2023] EWCOP 4 concerned a young adult, H, described by Hayden J as a “natal male who now identifies as female” (and hence female pronouns are used here).   H had experienced profound trauma and abuse in childhood and adolescence, giving rise, the judgment states, to global developmental delay; attention deficit hyperactivity disorder; executive dysfunction; developmental trauma disorder; possibly emotionally unstable personality disorder.  H also had traits of autism spectrum condition, extremely disordered attachment and highly disrupted emotional regulation. Critically, at times when ‘dysregulated’, H’s behaviour was described as being “extreme and present[ing] harm, both to herself and others.”  H also presented what was described as a real risk of sexual harm to children, both in contact with them and online.

In consequence, H had been subject to substantial restrictions upon her liberty in what appears to have been a supported living placement for some 3 years prior to the date of the judgment.[1] She was described as having progressed strikingly well, with a very significant reduction in the incidents of violent behaviour.  As Hayden J noted (at paragraph 5):

H has become remarkably compliant with a level of restriction that would be intolerable to most people. The psychiatrist was plainly concerned, as am I, that H has become so used to these arrangements that far from feeling them to be invasive of her privacy, she has come to regard them as integral to her safety and security. When the psychiatrist prepared her first report, H’s circumstances were very different. There had been incidents of her string out at others, destroying property, self-harming, threats of suicide. Physical restraint had been used where necessary.

The issue before the court was as to H’s capacity to make decisions as to residence, care/support, contact with others (both adults and children), as well as use of the internet and social media.   Hayden J took the opportunity to set out a helpful review of the case-law relating to capacity.  He then turned to its application on the specific facts of H’s case, noting (at paragraph 26) that:

It is very clear from the evidence, that when she is dysregulated, H is unable to take capacitous decisions. As I understand it, there is no dispute about this nor, to my mind, could there be. Inevitably, this has led to consideration of “fluctuating capacity”, which always presents a challenge to general assessment of capacity. In Re JB, Lord Stephens said at [64]:

“Capacity may fluctuate over time, so that a person may have capacity at one time but not at another. The “material time” within section 2(1) is decision-specific (see para 67 below). The question is whether P has capacity to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward looking assessment made at the date of the hearing. However, if there is evidence of fluctuating capacity then that will be an appropriate qualification to the assessment.”

With specific reference to residence, Hayden J (at paragraph 29) endorsed the approach of the expert, Dr S, who emphasised that:

In respect of H’s capacity to take decisions about her residence, Dr S emphasised that such decisions are best categorised as longitudinal rather than single issue. It is not just a question of whether H wants to be at the home or not, it requires a balance of the options. H can do this in a capacitous fashion when calm and engaged but is unable to achieve this at times of emotional dysregulation. This is as Lord Stephens indicated in Re JB (supra), “an important qualification to capacity”.

On the evidence, Hayden J was satisfied (at paragraph 30) that:

In each of the spheres of capacity that have been analysed i.e., residence, care/support, contact with others (both adults and children), use of the internet and social media, I agree with the psychiatrist that the presumption of H’s capacity is rebutted by cogent evidence. I also agree that H plainly has some insights into her behaviour but that it remains incomplete. Her co-operation with the plans for her care is one of a number of factors, which I have referred to above, which gives rise for optimism for the future. It is important that H hears me say this and that she recognises the tribute to her resolve and hard work. The philosophy of the care plan, which is being amended in light of the evidence, is to focus upon developing H’s sense of agency, to use the psychiatrist’s words. In other words, the plan is geared to enabling H to develop her own autonomy.

Entirely separately, an issue arose as to attendance at the hearing, which had been conducted as a hybrid hearing.  As Hayden J identified at (paragraph 31):

Understandably, and rightly, the public have come to expect that they will be admitted. It is important that the difficult decisions this court is required to take are subject to public scrutiny. Occasionally, however, the compelling arguments for transparency are required to yield to the equally compelling need to protect the most vulnerable. 

The particular factors in H’s case gave rise, Hayden J considered, to a situation which required a modification to the usually applied transparency provisions, and (in a situation more familiar to those before the family courts), he permitted only accredited journalists and legal bloggers to attend the hearing.  He also prevented any reporting until the end of the case and:

36. […] delivered this judgment in order that the parties can understand my reasoning and to establish an identified baseline to the future progress of the case. I recognise the legitimate public interest in these highly sensitive issues and have endeavoured to put them into the public domain in a way which is carefully designed to protect H’s identity becoming known. It is for this reason, by way of example, that I have referred to the expert instructed as ‘Dr S’ and pared away any detail of H’s life that might reveal who she is. In this way, I have sought to achieve proportionality in “the ultimate balancing test”.


It is a fitting irony that the last reported decision of the Vice-President in his current role is one that captures many of the trickiest issues that have arisen during his tenure, including the complexities of fluctuating capacity, the concept of executive dysfunction, the balance between protection of the person and protection of others in the concept of best interests, and navigation of the demands of transparency in a partly online world.   His successor, no doubt, will have to grapple with cases in which capacity and gender are squarely in issue (which have already started to emerge, but so far only in unreported cases).

[1] It is not clear from the judgment whether this had been authorised at any point prior to the hearing.

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