A County Council v AB & Ors (Participation of P in Proceedings)

A County Council v AB & Ors (Participation of P in Proceedings)

The Litigation Friend has the primary role in determining P's attendance and participation, subject only to the Court's limited power to intervene in extremis. Rule 95(e) provides the Court with a wide and flexible power to admit information from P, even if P is not competent to give sworn evidence. There is no basis for a best interests declaration excluding AB from participation; he should be permitted to attend and attempt to participate, with the process kept under review and subject to appropriate safeguards.

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 on Participation and Evidence Prior to Fact Finding Hearing
Outcome
Applications by the Official Solicitor on behalf of AB granted; no best interests declaration excluding AB's participation; AB permitted to attend and attempt to 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 Family Law Civil Procedure Participation of Protected Parties Role of Litigation Friend Competence to Give Evidence Best Interests Determination Case Management in Court of Protection

Case Brief

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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 on Participation and Evidence Prior to Fact Finding Hearing

Legal Issues

  1. 1 Whether the Litigation Friend or the Court determines P's (AB's) attendance and participation in proceedings
  2. 2 Whether AB is competent to give evidence or provide information
  3. 3 Whether it is in AB's best interests to attend and participate in the hearing

Ratio Decidendi

The Litigation Friend has the primary role in determining P's attendance and participation, subject only to the Court's limited power to intervene in extremis. Rule 95(e) provides the Court with a wide and flexible power to admit information from P, even if P is not competent to give sworn evidence. There is no basis for a best interests declaration excluding AB from participation; he should be permitted to attend and attempt to participate, with the process kept under review and subject to appropriate safeguards.

Court Disposition

Applications by the Official Solicitor on behalf of AB granted; no best interests declaration excluding AB's participation; AB permitted to attend and attempt to participate in the hearing.

Orders

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