DA v DJ [2017] EWHC 3904 (Fam) (29 November 2017)

DA v DJ [2017] EWHC 3904 (Fam) (29 November 2017)

The court has jurisdiction under s.48 MCA 2005 to make interim orders where there is evidence giving good cause for concern that P may lack capacity, adopting Judge Marshall's lower threshold approach. The evidence from witnesses and expert report satisfies the 'reason to believe' test, and it is in DJ's best interests to make interim orders without delay.

Citation
[2017] EWHC 3904 (Fam)
Parties
Applicant: DA; Respondent: DJ
Jurisdiction
England and Wales
Judgment Date
29 November 2017
Procedural Posture
Court of Protection Application / Interim Application for Declaration and Order
Outcome
Interim declaration granted; directions made for psychiatric assessment and case management
Legal Topics
Interim Orders, Capacity Assessment, Best Interests, Court of Protection Jurisdiction
Mental Capacity Family Law Interim Orders Capacity Assessment Best Interests Court of Protection Jurisdiction

Case Brief

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Parties

DA

Applicant

DJ

Respondent

Procedural Posture

Court of Protection Application / Interim Application for Declaration and Order

Legal Issues

  1. 1 Whether the court has gateway jurisdiction under s.48 Mental Capacity Act 2005 to make interim orders regarding DJ's capacity
  2. 2 Threshold for interim intervention under s.48 MCA 2005
  3. 3 Appropriate test for 'reason to believe' under s.48 MCA 2005

Ratio Decidendi

The court has jurisdiction under s.48 MCA 2005 to make interim orders where there is evidence giving good cause for concern that P may lack capacity, adopting Judge Marshall's lower threshold approach. The evidence from witnesses and expert report satisfies the 'reason to believe' test, and it is in DJ's best interests to make interim orders without delay.

Court Disposition

Interim declaration granted; directions made for psychiatric assessment and case management

Orders

  • Official Solicitor to instruct independent psychiatrist and private GP for assessment of DJ's capacity and health
  • Directions for disclosure from borough and medical attendants