Fact finding in Court of Protection cases
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Re: AG - Further guidance on fact-finding
Bob Marley famously sung that, in this bright future, you can’t forget your past. However, the recent case of Re: AG  EWCOP 78 suggests that, when deciding whether to carry out a fact-finding enquiry in the Court of Protection, it may sometimes be appropriate to focus on the future rather than ponder the past.
The facts can be shortly stated. P was a young woman with a learning disability, autistic spectrum disorder and depression. From 2007, she alternated between living with her mother (DG) and living on her own. In 2011, various allegations were made in relation to both P and DG, including allegations of assault, emotional and verbal abuse and mismanagement of medication. The local authority moved P into a care home placement and, in November 2011, applied to the Court of Protection. The final hearing took place in November 2012. By this stage, P had moved into semi-independent accommodation. HHJ Rogers determined that P lacked capacity and it was in her best interests to be moved to a supported living placement.
The 'major thrust' of P's appeal was that the judge had failed to make factual findings in relation to the events which had 'triggered' the proceedings. It was argued that a fact-finding hearing was necessary, and that the failure to do this amounted to a procedural violation of ECHR art. 8.
Sir James Munby P dismissed the appeal. On the issue of whether the judge should have held a fact-finding hearing:
- There was no requirement to establish ‘threshold’ in Court of Protection cases. The President expressly approved the pre-MCA 2005 decision of Wall J in Re S (Adult's Lack of Capacity: Care and Residence)  EWHC 1980 (Fam). This identified that, although there must be good reason for local authority intervention, and there can be disputed factual issues which need to be resolved, there will be some cases 'in which the principal concern is the future'.
- The judge had carefully spelled out the legal consequences of not having a fact-finding enquiry. He identified that, in the absence of such findings, he did not hold them 'in the background as it were by way of a suspicion lurking over DG'.
- The factual background had moved on significantly. Although the proceedings had been issued against the background of safeguarding concerns, the court was faced with a 'different landscape' by the time of the final hearing; the judge correctly identified that he was looking at the present position and to the future. A lengthy, costly fact-finding hearing would have been entirely disproportionate.
- There was nothing to suggest that the independent social worker's analysis had been adversely influenced by the allegations.
- DG had never sought to appeal the earlier orders in November 2012 and July 2013. It was far too late to be taking the point now.
The judgment endorses a flexible 'steer' to fact-finding in the Court of Protection, referring to principles such as pragmatism and proportionality.
Such an approach is undoubtedly appropriate. It sits comfortably with the inquisitorial nature of such proceedings: Re G  EWCOP 1361. It echoes the approach taken in care proceedings. It should also be considered alongside the helpful guidance of Cobb J in LBX v TT and others  EWCOP 24 (paragraph 48 - 49).
However, it is important to ensure that its flexibility is kept within reasonable limits. As acknowledged by Wall J in Re S: 'In a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues'. Any decision must be based on evidence, not assumption or speculation. It cannot be made in a vacuum, and local authorities should bear this mind at all times. This is particularly given the serious and complex nature of such cases, which invariably impact on the freedom of vulnerable individuals.
Lawyers will need to be ready to identify disputed factual issues at an early stage, and consider whether the resolution of those issues is necessary to the decision as to what is in P's best interests. This will require careful judgement. Although there is no 'threshold' in Court of Protection cases, it is right to acknowledge that many of the s.4 factors can be construed as looking to the future and the past.