Fact-finding hearings have long been considered a prerequisite of fairness
in family law proceedings. However, increasingly such hearings are being discussed in other jurisdictions. The Court of Protection president recently heard an appeal concerning
a woman with a moderate learning disability and autistic spectrum disorder (In the matter of AG  EWCOP 78). AG had alleged physical and emotional abuse by her mother, DG. A safeguarding investigation proved inconclusive. AG was moved by the local authority to a tenancy with a 24-hour care package, and further allegations against DG ensued, with
AG reportedly expressing a wish not to visit
DG strongly denied all the allegations. However, at the pre-hearing review (at which the author represented the local authority), the court agreed with the council's decision not to request a fact-finding hearing, acknowledging that it would involve a disproportionate amount of time and resources to investigate past conduct. While the background would not be ignored, the judge held that even 'if some additional factual clarity would have emerged it would not materially have affected… [the] overall approach to the case'.
DG appealed on the basis (inter alia) that the interests of justice required a fact-finding hearing on the events triggering the proceedings. She desired to 'clear her name', alleging that a failure to hear her was a breach of natural justice. DG also contended that fact-finding was necessary as the best interests decisions were far-reaching and significantly restricted the rights of herself and her daughter under article 8 of the European Convention on Human Rights, affecting contact and involving a deprivation of AG's liberty. Relying upon R (on the application of TB) v Combined
Court at Stafford  EWHC 1645 (Admin), at paragraph 23, the appellant contended that a person whose rights were in issue must be sufficiently involved in the decision-making process to protect their interests. If not, interference with family life and privacy could
not be 'necessary' for the purposes of article 8.
In A County Council v DP, RS, BS (by the children's guardian)  EWHC 1593 (Fam), the court identified various relevant factors when deciding whether or not to conduct fact-finding in care proceedings. These included the cost to public funds, the relevance to future care-planning, and the prospects of a fair trial.
However, Mr Justice McFarlane highlighted
that there was no requirement to establish a 'threshold' equivalent to that contained in section 31 of the Children Act 1989 in proceedings concerning an adult. Indeed, the absence of threshold criteria was key to the decision in Re
S (Adult's Lack of Capacity: Care and Residence)  EWHC 1909 (Fam) (at paragraph 15).
The court need not dismiss proceedings because the factual basis upon which they were instituted could not be established on the balance of probabilities, or was discovered to be mistaken. While there were recognised 'dangers in too relaxed an approach to historical issues', a decision on an incapacitated person's best interests was not fettered, save for the need
to take into account all relevant circumstances and to exclude irrelevancies. Accordingly,
the president held that the degree of enquiry undertaken by the first instance judge had been 'entirely sufficient to inform the decisions in respect of future planning for AG that the court was tasked with'.
Mental health tribunal
The need for fact-finding in the context of a Mental Health First-tier Tribunal was explored for the first time recently in AM v Partnerships in Care Limited and Secretary of State for Justice (2015) UKUT 659 (AAC). AM had an antisocial personality disorder. He was detained under
the Mental Health Act 1983 (MHA) following
two low-level robbery index offences. It was later alleged that AM had raped a male prisoner with whom he shared a cell, and around five years thereafter he was accused of the rape of two other male peers in learning disability units (where he was detained due to his previous diagnosis of borderline learning disability). No criminal charges were ever brought.
Initially, AM claimed he could not remember the alleged sexual assaults, but he later accepted they may have taken place and was willing to discuss them, although he refused group therapy. He was denied a place at a low secure unit because a psychosexual assessment was considered a prerequisite step in reducing
his risk of future sexual violence.
The tribunal considered AM an unreliable witness, and concluded that he continued to meet the criteria for detention in hospital. While
it found insufficient evidence with respect to the first sexual allegation, it held that the two other rapes had occurred on a balance of probabilities. Accordingly, before discharge, AM needed to engage with a sexual offending assessment and possible treatment.
AM appealed, alleging that the tribunal
had made a fundamental mistake of fact which undermined its conclusion as to the rapes, and that the reasons given were insufficient. He also argued that a tribunal must find facts on a balance of probability in order to rely on a future predication of risk. The defendant hospital (for which the author appeared) submitted that, taken as a whole, the reasons were adequate and the tribunal's decision perfectly understandable (English v Emery Reinbold and Strick Ltd  1 WLR 249).
The appellant relied upon In re H and others (Minors) (Sexual Abuse: Standard of Proof) 
2 WLR 8, in which the House of Lords held (at paragraphs 589-590) that 'at trials… the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion
on the issue it has to decide'. Since 'the court's conclusion must be founded on a factual basis',
'a decision… on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom'. Accordingly, it was argued that a tribunal could not find a risk of sexual violence
on the basis of a rape allegation without being satisfied on a balance of probabilities that a rape had been committed.
The appeal was allowed and the matter remitted to a freshly constituted tribunal. The Upper Tribunal held that it did not automatically flow from AM's lack of credibility that the sexual allegations were true. The tribunal should have addressed features of the evidence capable of casting doubt on the allegations, such as the lack of contemporaneous records, or the quality of the multiple hearsay evidence. The evidence suggested one victim had been unreliable - a material fact going to the truth of the allegation. The tribunal erred in law not only because it failed to explain how it reached its conclusions, but also in not taking into account highly relevant considerations.
Unfortunately, the judgment in AM did not clarify the Upper Tribunal's stance on whether
or not (and if so, when) a fact-finding hearing is required. It held that the matters of which a tribunal must be satisfied when discharging a patient under section 72 MHA involved mixed questions of fact and judgement or evaluation (R(AN) v Mental Health Review Tribunal  EWHC 587 (Admin) at paragraph 101). The evaluation of a likely occurrence must be based on fact. Yet it did not follow that the tribunal could only be satisfied of the risk of sexual violence if satisfied that the rapes occurred, since a court must take all relevant facts into account (Re H
at paragraph 591E).
However, confusingly, the Upper Tribunal
then disagreed with the hospital's contention
that a tribunal could find such risk on the basis
of unproven allegations. On the one hand, it concluded that prediction of future risk must be based on past facts proven to the civil standard.
On the other, it found that a tribunal's decision as to risk need not necessarily involve fact-finding, and that there was no need for it to be certain a rape had occurred for it to be satisfied of a risk of sexual violence. It is unclear how, if future risk
must be based on fact, a patient might be assessed as presenting a particular risk without a tribunal being satisfied that an alleged offence giving
rise to such risk took place. Such a decision
would, in essence, be a finding that the allegation
AM leaves it open to future patients to argue that, in their particular cases, fact-finding is required. It is clear that this will not be the last to be heard on the subject in the Health, Education, and Social Care Chamber tribunal context. Nonetheless, the decision was undoubtedly right: the evidence before the tribunal was insufficiently cogent or contemporaneous for
it to conclude that the appellant had committed any sexual assault.
Laura Davidson is a barrister specialising in healthcare law, in particular mental capacity and mental health issues, at No 5 Chambers in London. She has been commended as a leader in her field in Chambers and Partners since the Court of Protection category was included in 2012. Laura regularly contributes to legal journals and books, lectures in her areas of expertise, and has trained best interest assessors. She co-founded Mental Health Research UK, the UK’s first charity dedicated to funding research into the causes of mental illness in order to improve treatments.Tags:
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