A County Council v AB & Ors (Participation of P in Proceedings) [2016] EWCOP 41 (31 May 2016)

A County Council v AB & Ors (Participation of P in Proceedings) [2016] EWCOP 41 (31 May 2016)

The litigation friend has primary responsibility for decisions regarding P's attendance and participation, with the court's intervention limited to exceptional circumstances. P is entitled to attend and participate, and the court should facilitate this, using Rule 95(e) to admit information from P even if not...

Source-derived case information.

Citation
[2016] EWCOP 41
Parties
Applicant: A County Council; First Respondent: AB; Second Respondent: BB; Third Respondent: CB
Jurisdiction
England and Wales
Judgment Date
31 May 2016
Procedural Posture
Court of Protection Proceedings / Case Management Hearing With Directions for Fact Finding Hearing
Outcome
Applications on behalf of AB (through the Official Solicitor) granted; AB permitted to attend and participate in the hearing.
Legal Topics
Participation of Protected Parties, Role of Litigation Friend, Competence to Give Evidence, Best Interests Determination, Case Management in Court of Protection
Mental Capacity Law Court of Protection Participation of Protected Parties Role of Litigation Friend Competence to Give Evidence Best Interests Determination Case Management in Court of Protection

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Parties

A County Council

Applicant

AB

First Respondent

BB

Second Respondent

CB

Third Respondent

Procedural Posture

Court of Protection Proceedings / Case Management Hearing With Directions for Fact Finding Hearing

Legal Issues

  1. 1 Whether the decision for P (AB) to attend court or give evidence is for the litigation friend or the court
  2. 2 Test for competence to give evidence in Court of Protection proceedings
  3. 3 Whether AB should be permitted to participate in the hearing and in what form

Ratio Decidendi

The litigation friend has primary responsibility for decisions regarding P's attendance and participation, with the court's intervention limited to exceptional circumstances. P is entitled to attend and participate, and the court should facilitate this, using Rule 95(e) to admit information from P even if not competent to give sworn evidence. The court will not make a best interests declaration to prevent P's participation, and AB should be permitted to attend and attempt to participate, with safeguards and ongoing review.

Court Disposition

Applications on behalf of AB (through the Official Solicitor) granted; AB permitted to attend and participate in the hearing.

Orders

  • No best interests declaration made to prevent AB's participation.
  • AB to attend and attempt to participate in the hearing, including being tendered for questioning under Rule 95(e).