Analysis
AB was a young adult who had suffered a brain injury. She lived with her mother, stepfather and stepbrother. PQ was her father, whose whereabouts were unknown. In the past he had been physically violent and sectioned. AB’s mother had terminated her relationship with PQ and, apart from occasional contact visits, he had not seen his daughter for years. Mother and daughter subsequently moved and established new lives elsewhere. AB was currently intestate and one of her property and affairs’ deputies made an application for the execution of a statutory will to be authorised on her behalf. The effect of the proposed will would be to remove PQ’s entitlement to half of AB’s estate under the intestacy rules and, if he should pre-decease her, his biological children who were her half siblings would suffer a similar loss of entitlement. The issue currently requiring determination was whether to make an order dispensing with service of the application on PQ and on his biological children.
Held (dismissing the application)
Rule 3(1) of the Court of Protection Rules 2007 did not require a ‘best interests’ decision to be made pursuant to ss1(5) and 4 of the Mental Capacity Act 2005 when determining whether to direct that a party not be served with the application. That determination would be made by a judge in the exercise of powers given by the Court of Protection Rules but was not an act done, or a decision made, under the Mental Capacity Act 2005 on behalf of AB. Article 6 of the European Convention on Human Rights entitled PQ to a fair hearing. This was not a qualified right. Article 8, which entitled AB to respect for her privacy and family life, was a qualified right. To interfere with PQ’s right to a fair hearing, the court had to be satisfied on a balance of probabilities that, if served with the application, PQ was likely to act in a threatening and harassing manner towards AB and her family. According to case law decided before the Mental Capacity Act 2005, there needed to be a compelling argument and exceptional circumstances to justify not serving an application on a person who would be materially affected by it. The factors in favour and against a direction to dispense with service of the application were finely balanced in this case. Whilst the allegations against PQ were significant and serious, they were not fully supported by corroborative evidence and PQ’s side of the story had not been heard. Weighing all the factors in the balance, the circumstances of this case were not so exceptional nor were there sufficiently compelling reasons to justify dispensing with service of the application on PQ and his biological children.
Obiter: permission to dispense with service or notification of an application should only be made in exceptional circumstances where there were compelling reasons for doing so; otherwise the interests of justice would not be served and the court would not be seen to be acting fairly towards all parties.
JUDGMEMT DISTRICT JUDGE E BATTEN: This judgment was delivered in private, but the judge has given leave for it this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their …Continue reading "Re AB [2013] EWHC B39 (COP)"