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Re D (Children) [2015] EWCA Civ 749

Application by parents for permission to appeal against care and placement orders on the basis that the court had failed to properly determine whether the mother had litigation capacity at the time the proceedings were heard

This case concerned SSD, a child born in October 2013. Both of SSD's parents were vulnerable young adults with significant learning disabilities. The mother had one child "JD" removed earlier in the same year. During the course of the proceedings in respect of JD, the mother was represented by the Official Solicitor after the consultant child psychologist, Dr Morgan, concluded that she did not have capacity to instruct a solicitor herself.

In the proceedings concerning SSD, the mother had the benefit of a litigation friend, Mrs Weaver, for the majority of the hearings that took place. However, at an interim hearing, counsel on behalf of the mother requested a second psychological assessment of the mother by Mr Flatman, which concluded that she did have capacity to litigate. The litigation friend was discharged, though to all intents and purposes she continued to act as such. On 10 April 2014, HHJ Newton (as he then was), made care and placement orders in respect of SSD at the end of a two-day trial.

On 17 October 2014, the mother made an application out of time to apply to appeal the care and placement orders. She submitted that the court had failed to properly determine whether she had litigation capacity at the time that the proceedings were heard and that this procedural error was so fundamental that justice required the matter to be remitted for a fresh assessment of the mother's litigation capacity, followed by a rehearing of the local authority's applications. The Court of Appeal granted the mother an extension of time on the basis that the proper assessment of capacity of a parent being represented in care proceedings has serious implications for his/her Article 6 rights.

Lady Justice King then went on to consider the appeal itself. First, she considered whether there had been during the course of the proceedings a failure to properly assess and determine the capacity of the mother to litigate such that it was not possible to rely on the assessment by Mr Flatman that the mother had capacity to litigate. The report from Mr Flatman had been requested informally at court, on the basis that Dr Morgan had considered the mother's competency within the first six weeks of the mother giving birth.

In her analysis, Lady Justice King highlighted the following:

(i)  No application was made by those representing the mother for permission to put the expert evidence of Mr Flatman before the court pursuant to FPR 2010 r.25.7 and, as such, the consequential requirements once permission had been granted were not complied with;

(ii)  The Judge was not referred to the report of Dr Morgan when asked for the secondary report from Mr Flatman – had he been so, he would have found that Dr Morgan had acknowledged and made allowances for the timing of her report;

(iii)  No further consideration was given as to whether a further assessment was necessary – in the first instance, supplementary questions should have been put to Dr Morgan;

(iv)   The letter of instruction sent to Mr Flatman did not comply with PD25C r.4.1;

(v)   Mr Flatman's report did not make reference to the two-part assessment provided for by the Mental Capacity Act 2005, which is used to determine legal capacity; and

(vi)   As the Judge's attention was not drawn to Dr Morgan's report and Mr Flatman did not apply the proper test to determine legal capacity, no consideration was given to how to resolve the conflict between the differing views of the experts; the litigation friend was simply discharged.

In the circumstances, the Court of Appeal had no difficulty in finding that there had been serious procedural irregularities in determining whether the mother had litigation capacity. It therefore went on to consider whether the court had the power to retrospectively validate the proceedings and, if so, whether it was appropriate to do so. Counsel for the mother accepted that pursuant to FPR 2010, r.15.3(3) and the authorities, the court had authority to retrospectively validate the care and placement proceedings, but submitted that a fresh capacity assessment and retrial be ordered in light of Dunhill v Burgin [2014] UKSC 18.

The Court of Appeal disagreed and distinguished the case from Dunhill v Burgin. In particular, King LJ noted that the outcome of the case would have been the same regardless of whether the mother had litigation capacity; there was no forensic disadvantage to the mother. Likewise, due to the continued presence of Mrs Weaver, the court held that the case would have been conducted in exactly the same way on the mother's behalf had it been found that she lacked capacity.

Appeal dismissed.

Summary by Bianca Jackson, barrister, Coram Chambers

________________

 

Neutral Citation Number: [2015] EWCA Civ 749
Case No: B4/2014/3510

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Ipswich County Court and Family Court
His Honour Judge Newton
IP13100958

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 16th July 2015


Before :

LORD JUSTICE ETHERTON
(Chancellor of the High Court)
LORD JUSTICE BEAN

and
LADY JUSTICE KING
- - - - - - - - - - - - - - - - - - - - -

Between :

Re D (children)
 
 
(Transcript of the Handed Down Judgment of
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Nicholas Elcombe (instructed by Fosters Solicitors) for the Appellant
Ian Bugg
(instructed by Suffolk County Council Legal Department) for the Respondent

Hearing date: Tuesday 30th June 2015

Judgment
As Approved by the Court
Crown copyright©

Lady Justice King :
1. This is an adjourned application by SD (the mother), and TS (the father) for permission to appeal against an order made on the 10 April 2014 by His Honour Judge Newton, (as he then was), whereby care and placement orders were made in respect of their daughter SSD who was born on the 24 October 2013, and who is now 20 months of age.

2. The central issue is whether the court failed properly to determine whether or not the mother had litigation capacity at the time the proceedings were heard. In the event that the court concludes that the alleged procedural errors are such that the court is unable to establish whether the mother should have been represented by a litigation friend throughout the proceedings, is such a conclusion so fundamental that, not withstanding the merits of the case, justice requires that the matter be remitted for a fresh assessment of the mother's litigation capacity followed by a rehearing of the local authority's applications for care and placement orders.

3. The mother filed an appellant's notice as a litigant in person on 30 October 2014. On 9 April 2015, a listed hearing to consider the mother's application for permission to appeal out of time, for permission to appeal and appeal to follow if granted, was adjourned to today's date as the mother had only just been granted legal aid.


Background

4. Both parents are vulnerable young adults with significant learning difficulties. The mother was born on the 1 April 1996 and is now aged 19. The father too is 19 having been born on the 23 February 1996. The parents married shortly before the hearing of this application. The mother was represented at the hearing supported by the father who was not separately represented.

5. SSD is the mother's second child; her first child JD was born on the 13 July 2012 when the mother was 16 years old. DNA testing revealed that the maternal grandfather was the father of JD. The mother had been raped by her father who is now serving a prison sentence.

6. Proceedings were issued in relation to JD on the 27 July 2012. The mother went into a mother and baby foster placement with her new born baby for six weeks. The assessment concluded that whilst the mother was gentle and loving towards JD, she was unable adequately to care for him even with the support of the father of SSD.

7. For the purposes of the care proceedings in relation to JD, the mother underwent an assessment with Dr Morgan, a consultant child psychologist. Dr Morgan's report, dated 14 August 2012, concluded that the mother lacked capacity to instruct a solicitor although as a child herself, the mother would in any event have been represented by a guardian ad litem. The mother was therefore represented by the Official Solicitor as her litigation friend in those proceedings.

8. On 8 February 2013, care and placement orders were made in relation to JD. The Official Solicitor consented to the making of the orders on behalf of the mother. The mother, whilst not giving formal evidence, went into the witness box to express her opposition to the making of a placement order and to tell the judge how much she wanted to care for JD.

9. In the meantime, the mother had formed a relationship with the father; their daughter SSD, the subject of these proceedings was born on the 24 October 2013; she is now 20 months old. Proceedings were immediately issued and an interim care order made on the 29 October 2013, by which time the mother had turned 18. The local authority inevitably had serious concerns in relation to the mother's ability to parent SSD in the light of her inability to parent JD.

10. On 8 November 2013, Dr Morgan filed cognitive assessments in respect of both parents. Dr Morgan concluded that whilst the mother lacked capacity to instruct a solicitor, the father had capacity to litigate.

11. The matter went before the District Judge on the 12 November 2013, when the father indicated his intention to apply for a residential assessment of himself, the mother and SSD. In light of Dr Morgan's report, leave was given for the mother's Independent Mental Capacity Advocate (IMCA), Mrs Joy Weaver who had acted as the mother's independent advocate since October 2013, to act for the mother as a litigation friend in the care proceedings. Only if Mrs Weaver was unable or unwilling to act was the Official Solicitor to be invited to represent the mother.

12. On the 26 November 2013, District Judge Hallett, (the third District Judge to deal with the case in a month), ordered pursuant to s38(6) of the Children's Act 1989, that there should be a residential parenting assessment of the parents at a unit called 'Symbol' in Kent. The parents moved in a couple of days later but SSD did not immediately join them as the local authority appealed the order providing for the residential assessment.

13. On the 5 December 2013, His Honour Judge Newton, (as he then was), dismissed the appeal and the following day SSD joined her parents at Symbol. At that hearing, an informal request was made of the judge for a further assessment of the mother's litigation capacity. The judge agreed. The mother was seen by Mr Graham Flatman on the 20 December 2013. Mr Flatman's assessment was filed on the 7 January 2014, which assessment, contrary to the assessment of Dr Morgan, concluded that the mother did have capacity to litigate.

14. To the deep distress of the mother, Symbol concluded that notwithstanding her great love for SSD, she would be unable to care for her even with the support of the father. As a consequence at a hearing on 20 January 2014 in front of the District Judge, an interim care order was made and SSD now  aged 3 months, was placed with foster carers. At the same hearing Mrs Weaver, at Counsel's request, was discharged as the mother's litigation friend. Fortunately Mrs Weaver, to all intents and purposes, continued to act as litigation friend, attending appointments with the solicitors and sitting with the mother throughout the proceedings, even though she had technically now resumed her earlier roll of IMCA.

15. On the 10 April 2014, His Honour Judge Newton made care and placement orders in respect of SSD, at the end of a two day trial. The mother gave evidence and was represented by solicitors and Counsel, Mrs Weaver was present.

16. In relation to the conduct and outcome of the trial, Counsel Mr Elcombe, (who did not represent the mother below), on behalf of the mother readily accepts that:

i) The mother did not have inadequate representation, Counsel and solicitors, as can be seen from the attendance notes, fought the case vigorously. Mrs Weaver offered the mother support and advice, going to meetings with the solicitor, (who has not represented the mother in the appeal), when asked and attending most if not all the court hearings. The mother's case then as now was that she wants to look after her child herself.

ii) The hearing was not unfair.

iii) The judge did not fall into error when conducting the so called Re B-S exercise and in concluding that the making of a placement order was in the best interests of SSD. It was tacitly accepted that, all other things being equal, there is no basis for an appeal against the orders made.

17. SSD was placed with her adoptive parents a year ago on 11 July 2014. It is common ground that SSD is settled, happy and completely attached to her prospective adoptive parents.

18. It was not until the 17 October 2014, very considerably out of time, and well after SSD's placement, that the mother filed an appellant's notice. Ordinarily, in a case such as this concerning the future of a newborn baby, where there has been a trial where the parents had been represented by solicitors and counsel, a delay of six months would be almost certainly to be fatal to any application for permission to appeal.

19. Despite her extreme youth and very considerable learning difficulties, the mother appeared on her own before me to make her application for permission to appeal out of time. She put her case simply and clearly; she should not, she said, have been allowed to instruct solicitors and counsel herself without a litigation friend, she had not she said, understood the proceedings or what was being decided on her behalf.  The small amount of information available to the court appeared potentially to raise such serious issues of procedural irregularity that, notwithstanding the delay, the matter was adjourned for further information to be sought and in due course for the mother to obtain legal representation.

20. I am grateful to counsel for the mother and also to the local authority who have assisted by obtaining statements and have provided documents so as to enable the court to have a better understanding as to what happened in relation to the various assessments of the mother's capacity to litigate. The court now has a full picture including copies of the three relevant assessments, (two from Dr Morgan and one from Mr Flatman), together with transcripts of the various hearing when issues in relation to the instruction of expert evidence were considered.

21. The proper assessment of the capacity and consequential representation of a parent in care proceedings is a matter of considerable importance and potentially has serious implications in relation to their Article 6 rights. Having read all the material now available I have no hesitation in granting an extension of time to the mother for the filing of her appellant's notice and to grant her permission to appeal under  the  second limb of Family Proceedings Rules 2010, r.7:

"(7) Permission to appeal may be given only where –

(a)…

(b) there is some other compelling reason why the appeal should be heard."


The Appeal
22.  I turn first to consider the statutory framework against the backdrop of two issues at the heart of the appeal:

i) Had there been during the course of the proceedings, a failure properly to assess and determine the capacity of the mother to litigate such that it is not now possible to rely on the assessment of Mr Flatman that the mother had capacity to litigate?

ii) If the mother had not capacity, (or may not have had capacity), are the proceedings rendered invalid necessitating a fresh capacity assessment of the mother and a retrial of the care and placement proceedings, or has the court the power, in appropriate circumstances, retrospectively to validate the proceedings?

(i) Was there a failure properly to assess and determine the capacity of the mother to litigate?
23. The issue as to whether a party has capacity can come before the court in a number of ways, although as Kennedy LJ put it in Masterman-Lister v Brutton & Co  [2002] EWCA Civ 1889 at [30]:

"Normally no problem arises as to when the issue of capacity should be raised. It raises itself"

24.  In the present case the mother had been represented by the Official Solicitor as her litigation friend in relation to the proceedings concerning JD and so very properly at an early stage, an updating report was commissioned from Dr Morgan.

25. The jurisdictional backdrop to this course is found in Part 15 Family Procedure Rules 2010. (FPR 2010):
By FPR 2010 r.15.2:

"A protected party must have a litigation friend to conduct proceedings on that party's behalf"

26. It should be noted that the term 'litigation friend' applies to both Applicants and Respondents, the former nomenclature of 'next friend' for an applicant and 'guardian ad litem' for the Respondent having been replaced by the single term litigation friend under the FPR 2010.

27. A 'protected party' is defined under FPR 2010, r2.3(1) as:

"a party, or an intended party, who lacks capacity (within the meaning of the 2005 Act ) to conduct proceedings."

The "2005 Act" is the Mental Capacity Act 2005 (MCA 2005). It follows therefore that the statutory test found within the MCA 2005 together with the jurisprudence which has developed in that jurisdiction, have been specifically incorporated into the Rules.

28. The starting point for determining capacity  is MCA 2005, s1(2):

"A person must be assumed to have capacity unless it is established that he lacks capacity"

29. MCA 2005, s2(1) provides:

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Two stages therefore make up the process of determining whether a person does or does not have capacity in respect of the specific issue in question; here the mother's capacity to litigate. The two questions are commonly referred to as:

i) The diagnostic threshold – namely is there an impairment of, or disturbance in the functioning of the person's mind? The disturbance may be permanent or temporary and no reference is made to the degree of impairment or disturbance necessary to reach the threshold.     

ii) The functional test – is the impairment or disturbance of mind sufficient to render the person incapable of making that particular decision? It has long been recognised that the test is issue–specific; a person may for example have the capacity to consent to medical treatment but not have the capacity to litigate.

30. Evidence from a suitably qualified person will be necessary as to the diagnosis. This will usually be a person with medical qualifications, ideally a psychiatrist but where, as here, the court is concerned with a person with significant learning disabilities, a psychologist may be as, if not more, appropriate.

31. Often in care proceedings the issue of capacity is uncontroversial. Either the local authority, as part of its pre proceedings work, will have obtained a medical report dealing with the issue which report will have been annexed to the application for a care order in accordance with the Public Law Outline(PLO): FPR Part 12: PD12A. Alternatively, the solicitor representing the parent in question, will have raised concerns as to his client's capacity and a report will have been identified as being necessary and provided for under the PLO at the PD 12A: Stage 2 – Case Management Hearing. 

32. If either party takes issue with the outcome of the capacity assessment then, as with any other expert evidence, it is open to that party to make an application to the court for a second report by a different expert. Section 13 of the Children and Families Act 2014 (CFA 2014): creates a statutory code for expert evidence in children cases supplemented by FPR 2010, Pt25. The introduction of s13 CFA 2014 marked the making of a statutory restriction on the power of the courts to order expert evidence reflected  in the wording of the section:

"13. Control of expert evidence and of assessments in children proceedings
(1) A person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings

(2) …

(3) …

(4) …

(5) …

(6) The court may give permission…. only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.

33. FPR 2010 Part 25 and the accompanying Practice Directions: PD 25B and PD25C set out in considerable detail all the requirement in relation to the instruction of an expert from the contents of the application (CPR 2010, r25.7 & PD25C, 3.10 & 3.11) and of the Letter of Instruction (PD25C,4.1) to the structure of the Expert's Report (PD25B,9.1) and of Discussions between Experts (FPR 2010, r25.16)

34. Even where, as I will set out in detail later in this judgment, there has been a wholesale failure to comply with either the rules governing the making an application for an expert or, in relation to the consequential requirements once permission has been given, such failings are not necessarily fatal to the admission of the expert evidence as the court retains its discretion to admit expert evidence, notwithstanding the procedural defects.

35. The purpose of the somewhat prescriptive approach to the instruction of experts found in the FPR 2010 is to ensure that the expert report put before the court deals with the relevant issues, the expert having had available all the relevant evidence necessary for him or her to form an opinion. Failure to provide an adequate letter of instruction, or all the relevant documents, can lead to an expert, particularly one who may be less experienced in the forensic process, in failing to apply the correct test or adequately to address the key issues which , in turn, can lead to delay – the enemy of children's welfare.

36. Where the report is either deficient or reveals a disagreement in view as between other experts in the case, once again Part 25 comes to the rescue by providing for written questions to be put to the expert; FPR 2010, r25.10 and provision for an expert's meeting FPR 2010,r25.16 with a view to reaching agreement or, failing that , endeavouring to narrow the issues between them.  Absent agreement between the experts the court will hear evidence and make a determination.

37. This then was the procedure which should have been followed in the present case. In the event the resolution of the issue as to the mother's capacity came about in the following way: on 5 December 2013, HHJ Newton dismissed the local authority's appeal against the order of the District Judge granting the application for a residential assessment of the parents. At the conclusion of the hearing, counsel on behalf of the mother asked if she could raise "one further matter". She made the following application:

"The issue of the mother's competency was reconsidered within these proceedings by Penny Morgan, but it was within the first six weeks of her having given birth. Given the duty to review that, I am instructed to invite the court to approve a direction that there should be a further assessment as to her capacity, probably as part of the residential assessment which is now to go ahead"

38. The judge responded saying "I agree. It should be done sooner rather than later". Apparently the Guardian and local authority were either neutral or content with such a course, although the local authority had made it clear that they would not be responsible for the cost of such a report as they took the view that the report of Dr Morgan adequately dealt with the issue of capacity.

39. On 17 December 2013, those then representing the mother sent a letter of instruction to Mr Flatman, this led to the cognitive assessment of the mother carried out by Mr Flatman concluding that the mother had capacity to litigate and thereafter, as already recorded, the discharge, without further ado, of Ms Weaver as litigation friend.

40. Unhappily this outcome whilst being  that which the mother wished, was  achieved  as the result of  procedural anarchy :

i) No application was made by those representing the mother for permission to put expert evidence before the court pursuant to FPR 2010 r.25.,2 as a consequence  none of the matters to be included in such an application  set out in FPR 2010 r.25.7 were before the court and, (so far as I can tell),  no order was made at all, let alone one approving the questions which the expert was required to answer, specifying the date of a letter of instruction or for the filing of the report under FPR r 25.8

ii) The judge was not referred to in the report of Dr Morgan during the course of the perfunctory application set out above – had that been done he would have been aware that Dr Morgan was herself acutely conscious of how recently the mother had given birth  and that she had said:

"The immediate post natal period (under six weeks) tends to be a somewhat volatile period in terms of health and mood. Cognitive tests undertaken during this period are likely to reflect mood variations and difficulties with concentration due to hormonal changes…. In this assessment, therefore I have drawn on the results of SD's August 2012 assessment together with a brief corroborative assessment conducted on 4 .11.13"

Importantly also, he would have know that Dr Morgan had highlighted the additional feature in relation to the unreliability of cognitive tests when repeated within a relatively short period of time.

iii) No consideration was given as to whether a further assessment was in those circumstances necessary at all. If the concern was as to whether the updating assessment should have been delayed until longer after the mother had given birth, the matter should in the first instance have been dealt with by way of supplementary questions to  Dr Morgan, or by asking her to see the mother again,

iv) A letter of instruction was sent to Mr Flatman – the letter wholly failed to comply with PD25C r4.1 which sets out the content of a letter of instruction; more seriously perhaps, it would appear that the only document sent to Mr Flatman was Dr Morgan's second updating report of 8 November 2013 and not her first substantive report of 14 August 2012 which set out her cognitive assessment test results.

v) The report of Mr Flatman dated 4 January 2014 made no reference to the MCA 2005 and therefore failed to make any reference to the two part assessment provided for by the Act. It may be, as was suggested by counsel for the local authority, that Mr Flatman had concluded  that the results of the repeat cognitive tests he had administered  did not lead him to find that the diagnostic criteria  was satisfied and  that there was therefore no need for him to move on to consider the functionality test. That may indeed by correct but he did not say so, either explicitly or implicitly and the court has to decide if a person lacks capacity by reference to the MCA 2005 and the MCA 2005 test did not feature in the report.

vi) At the hearing before the District Judge on 20 January 2014 the District Judge was simply told that:

"there has been a cognitive assessment further filed to say that she does have capacity to give instructions to her legal representatives". 

Dr Morgan's conflicting report was not brought to the attention of the judge, neither was the fact that Mr Flatman had failed to apply the proper test for assessing capacity. As a consequence no consideration was given as to how to resolve the conflict, whether by additional questions, an experts meeting or by hearing short oral evidence to resolve the issue. Ms Weaver was simply discharged as litigation friend.

41. When the mother came before the judge for the final hearing Ms Weaver attended as the mother's IMCA and the case proceeded without further consideration as to the mother's capacity.

Conclusions as to Procedural Irregularity
42. At the care proceedings of JD both the mother's representation by the Official Solicitor and the judgment were unimpeachable, but it is not hard to see why this mother, in common with many mothers in her situation, felt that her case has not been run as she would have wished. How could she when the Official Solicitor had, on her behalf, consented to the making of care and placement orders?  A parent such as this mother may not have the capacity to litigate, but what she does have is a deep and abiding love for her children and a strong desire not to be separated from either of them.

43. Little wonder then that when the mother gave birth to SSD and care proceedings began once again she wished to speak for herself without a guardian, (now litigation friend as she had attained 18), acting for her. The mother undoubtedly got that which she wished for at the time of the proceedings in relation to SSD, namely to feel that she had control over the litigation which so nearly affected her.

44. All those who are regularly involved in care proceedings are aware that such a situation is all too common and it is plain to see why issues of capacity are critical to those affected. The starting point for the court is not only that a party has capacity, but that every effort must be made to help a party without capacity to regain it. Only in this way which accords with the statutory principles found in MCA 2005, can  a parent feels that his or her case has been presented in accordance with his or her wishes, no matter how unrealistic or unachievable those wishes may be when considered against the yardstick of the welfare of her child in question. On the other hand the MCA 2005 is designed to ensure that those vulnerable adults, who have not got the capacity to conduct litigation on their own behalf, are properly identified and provided with appropriate support and a litigation friend in order to ensure that they not prejudiced within the proceedings as a consequence of their disability.

45. Process is not all and should never, particularly when one is concerned with a child's future, be slavishly adhered to at the expense of achieving the right welfare outcome for a child without delay. Having said that, I am satisfied that the informal course which was adopted in the present case went far beyond a pragmatic and practical approach to case management and amounted to serious procedural irregularity.

Can the care and placement proceedings be validated retrospectively?

46. Having found that there had been a failure properly to determine the mother's litigation capacity in the care proceedings in relation to SSD, the court must turn to the second issue, namely has the court the power in appropriate circumstances retrospectively to validate the proceedings and if so is it appropriate to do so in this case?

47. FPR 2010 r.15.3 qualifies the general rule that a protected party may only conduct proceedings by a litigation friend. In particular FPR 2010, r.15.3(3)  provides:

"(3) Any step taken before a protected friend has a litigation friend has no effect unless the court orders otherwise."

The rule is in identical terms to that found at CPR 21.3(4).

48. In  Masterman-Lister v Brutton & Co & Others [2002] EWCA 1889  the court considered how the provisions of CPR 21 apply where a lack of capacity becomes apparent  during the course of the proceedings:

[30] ….But what if, as is said to have been the case here, the claimant did lack capacity but, without any fault on anyone's part, no one recognised that fact? Order 80 and CPR 21 are worded in such a way as to indicate that in that event the litigation is ineffective and decisions made in the course of litigation are invalid – see, for example, Order 80 Rules 2(1) and 10, CPR 21.2(1) and 21.10(1), but CPR 21.3(4) does suggest a solution.  It provides –

"Any step taken before a child or patient has a litigation friend shall be of no effect, unless the court otherwise orders."

[31] So a court can regularise the position retrospectively, and that was also possible under the Rules of the Supreme Court (see Kirby v Leather supra). Provided everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time I cannot envisage any court refusing to regularise the position. To do otherwise would be unjust and contrary to the overriding objective of the Civil Procedure Rules, but in any given case the ultimate decision must depend on the particular facts.   

49. Whilst the observations of Kennedy LJ were obiter, the Masterman-Lister v Brutton approach was followed in Bailey v Warren [2006] EWCA Civ 51. Hallett LJ said:

"[95] Within CPR r.21.3 (4) there are no restrictions whatsoever on the court's discretion to validate steps taken in proceedings before a litigation friend is appointed. A court can regularise the position retrospectively provided, as Kennedy L.J. observed in [31] of Masterman-Lister "everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the time". He could not envisage any court refusing to regularise the position because "to do otherwise would be unjust and contrary to the over-riding objective ….

[96] It is for the judge to consider all the facts of the case before him, therefore, and where as here, there is no suggestion of bad faith, decide whether or not the compromise is manifestly disadvantageous to the patient"

50. In Dunhill v Burgin [2014] UKSC 18, the Supreme Court was concerned with a case where a claim for personal injuries had been compromised at a considerable undervalue without it being recognised that the injured party lacked capacity. Under Civil Procedure Rules in ordinary civil proceedings where no party is a protected party and agreement is reached to compromise litigation, the terms of the agreement can be embodied in a consent order to be sealed by a court officer under CPR 40.6(2). Unlike matrimonial proceedings, the order does not need to be submitted for the approval of the judge. If however a party is a protected party  then the so called  Compromise Rule  at CPR 21.10(1) provides that:

"Where a claim is made – (a) by or on behalf of a child or protected party, no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim, by, on behalf of or against the child or protected party, without the approval of the court."

51. In Dunhill, Lady Hale having set out Kennedy LJ's observations in  Masterman-Lister, said :

"19………But of course, everything must depend upon the particular facts. It might be appropriate retrospectively to validate some steps but not others. In this case, we have not been asked to validate anything, but no doubt we could do so of our own motion if we thought it just."

52. Having factored in the role of the Compromise Rule, Lady Hale concluded by saying:

"34. …..Ms D lacked the capacity to commence and to conduct proceedings arising out of her claim against Mr B. She should have had a litigation friend from the outset and any settlement should have been approved by the court under CPR 21.10(1). We have not been invited to cure these defects nor would it be just to do so."

53. Mr Elcombe accepts that pursuant to FPR 15.3(3) and the authorities, this court has the power retrospectively to validate the care and placement hearing but submits that the court should adopt the approach of the Supreme Court in Dunhill and order a fresh capacity assessment and a retrial.

54. With respect to Mr Elcombe I disagree. The situation in Dunhill was wholly different dealing as it was with a settlement, and further, a settlement which did not require judicial scrutiny if  Mrs D  had capacity, but which did in the event that she lacked capacity and was therefore a protected person. On the facts of that case it became apparent that Mrs D undoubtedly lacked capacity at the date of the compromise. As a consequence, she had acted without the benefit of either a litigation friend or the judicial safety net provided for a protected party by CPR 21.10(1) and, as a result, she agreed to a settlement wholly to her disadvantage and which manifestly failed to provide for her substantial life long medical needs.

55. In the present case it is recognised that the outcome of the case would have been the same regardless of whether the mother had litigation capacity. There was therefore no forensic disadvantage to the mother. Further, thanks to the dedication of Mrs Weaver, there was in reality no difference in the nature and quality of the representation the mother received. Mrs Weaver's title within the proceedings changed from IMCA to Litigation friend and back to IMCA depending on the current court order, but the manner in which she carried out her role remained the same. It is apparent from the attendance notes that Mrs Weaver, in whatever guise, was not about to agree to the orders sought by the local authority being made; she felt strongly that the mother's best interests could only be served by the applications for care and placement orders being opposed, I am entirely satisfied that not only would the outcome of the trial have been the same had the mother been found to lack capacity, but that the case would have been conducted in exactly the same way on her behalf.

56. There is no question but that all involved have acted with good faith. In dissecting the progress of this case, as has been necessary in order to consider the important issues before the court, I do not lose sight of day to day life in busy family courts with Counsel and Judges over stretched in every direction. This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance. The rules providing for the identification of a person, who lacks capacity, reflect society's proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further. It is in order to avoid this course causing delay that the PLO anticipates issues of capacity being raised and dealt with in the early stages of the proceedings.

57. SSD is now 20 months old and has been in her adoptive placement for over half her life. Her future needs urgently to be secured. I am satisfied that notwithstanding the procedural failings which led to this court being unable to conclude with any certainty whether the mother was or was not a protected party at the time of the trial, she was not in the end adversely affected and no practical difference was made to the hearing or outcome as a consequence. In those circumstances it is open to this court to validate the proceedings retrospectively and in my judgment that should and will be done.

58. I would accordingly dismiss the appeal and confirm the care and placement orders made by HHJ Newton and order that the adoption application is expedited.

Lord Justice Bean :

59. I agree.

Lord Justice Etherton :

60. I also agree.