Vulnerable Parties and Fairness of Proceedings: Clients who present with cognitive difficulties

 Introduction

As family practitioners, we are often faced with considering so many variables when we are running our client’s case. Whether it be ensuring client care is upheld, advising the client, negotiating, researching, or ensuring our client’s voice is heard in the courtroom, the reality is that there are so many to consider. The consequence is that we can sometimes lose sight or overlook other important elements which can have an impact on the case such as our client’s vulnerabilities. In this article, we will be exploring a recent decision of the Court of Appeal in S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8 which provides a very important reminder for the family practitioner to always keep the issue of vulnerable clients at the forefront of their mind.

The Background

For the purpose of this article, the factual background of the case doesn’t necessarily carry too much relevance and therefore, a concise overview of the facts are set out below:

The appeal arose out of a fact-finding hearing during care proceedings issued against a Mother and Father concerning their child ‘S’ who was then aged 6 ½ years old. Interestingly, this case does not necessarily concern S but rather a boy ‘J’ who was then aged 5 ½ years old and spent a period of time in the care of S’s parents over a weekend in January 2020. J was the focus of the fact-finding hearing due to injuries that he sustained during that weekend in the care of S’s parents. Furthermore, J’s mother was joined into proceedings as an intervenor.

The findings sought by the local authority related not only to the injuries sustained by J but also to other matters, including allegations of domestic abuse relating to S’s parents and J’s Mother misusing ketamine.

The Judge concluded that some of the injuries had been sustained accidentally but that the mother of S had failed to adequately supervise J on one incident in which J sustained an abrasion to his arm due to the mother of S being likely to have been under the influence of drugs. Furthermore, the Judge had found S’s parents to have failed to adequately supervise J on another occasion in which J received an abrasion to his ear.

In terms of the findings that were made by the Judge:

(a)   Two of the injuries to J’s face, namely four linear marks over the left cheek and a red mark on the left ear, were inflicted by J’s Mother after J returned to her care on 19 January 2020 and probably in the morning of 20 January 2020, before he arrived at school. They are likely to have been caused during the same incident when the J’s Mother had slapped J.

(b)  The Mother to J deliberately attempted to establish a case to demonstrate that the Mother and/or Father to S inflicted those injuries knowing that she had inflicted those injuries herself

(c)   J’s Mother’s use of ketamine was higher than she admitted and for a longer period of time. She deliberately attempted to avoid detection of drugs in her hair for the full period of 12 months of testing ordered by the court, including for January 2020 by cutting her hair.

 (d)  the other injuries to J’s face and the deep abrasion to his arm were sustained while in the care of the Mother and/or Father to S and were the result of an unreasonable lack of supervision

 (e)   J was likely to have experienced pain and to have reacted immediately after sustaining the abrasion to his arm and that S’s Mother had lied to implicate J’s Mother

 (f)   S’s Father had assaulted S’s Mother during the night of 18 to 19 January and over that weekend S’s Father had been in the house for longer than S’s parents had admitted

 (g)  S’s Mother had supported S’s Father’s case as to his presence in the house to conceal his abuse of her

 (h)  S’s parents failed to protect J by returning him to his Mother even though she was in an intoxicated condition.

The appeal

The solicitors for the Mother of J filed a notice of appeal to the Court of Appeal, relying on six grounds:

1. Procedural irregularity/unfairness – The court made findings against the intervener which exceeded those sought in the schedule of findings and did not provide any reason for doing so, and the intervener has had significant findings made against her in proceedings not related to the welfare of her child and in which no relevant social work evidence was produced.

2. The court departed from the view of the expert Dr Goddard’s opinion in respect of the injuries caused to J and provided no reasoned judgment for disregarding Dr Goddard’s view and reaching a different conclusion.

3. The court has erred in its application of the facts.

4. The court has fallen into speculation and made findings which have no base in facts.

5. The court has made findings in respect of the injuries which are contradictory and are such that have no basis in the evidence, cannot reasonably be explained or justified and is one that no reasonable judge could have reached.

6. The court failed to give proper consideration to Y’s failure to attend to give evidence and failed to properly draw adverse inferences which would have significantly affected the findings made.

Upon considering the appeal notice, Peter Jackson LJ refused permission to appeal on the first ground but granted permission on grounds 2 to 6. The appeal hearing was fixed for 23 November and directions were  given for the filing of skeleton arguments.

Following this hearing, A’s solicitors had filed an application for permission to amend the grounds of appeal to add a new ground-based on procedural irregularity/unfairness which was:

“The appellant has cognitive difficulties which were unidentified. Dr Josling [a forensic psychologist] has assessed that the appellant may be assisted by an intermediary and an appointment with Communicourt for assessment is due to take place on 18 November 2021. The court made findings against the appellant in proceedings where the appellant’s cognitive issues were not considered or adjustments made to ensure her fair participation. The findings are therefore unsafe.”

The outcome

The Court reached the conclusion that the failure to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and the outcome of the hearing was unjust as a result.

Takeaway points for the family practitioner:

1. The Court of Appeal was keen to stress that a failure to comply with Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 does not always invariably lead to a successful appeal but rather “the question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust.” [Paragraph 42]

2. Good practice requires the parties’ representatives to actively address the question of whether a party is vulnerable at the outset of care proceedings. [Paragraph 39]

3. The Court of Appeal considered that, to comply with the obligation under r3A.9, “the judge conducting the case management hearing at the start of care proceedings should as a matter of course investigate whether there are, or may be, issues engaging Part 3A of the rules and that the parties’ advocates should as far as practicable be in a position to respond.” [Paragraph 39]

A guide to approaching the question of a vulnerable party with cognitive difficulties:

Practitioners may find this guide of assistance when approaching the issue of a vulnerable party who presents with cognitive difficulties:

1. Upon meeting the client for the first time, have you taken the view that they are struggling to:

a) Understand the information relevant to the issue you are discussing with them?

b) Retain information?

c) Use or weigh that information as part of decision making?

d) Communicate their decision?

2. Have you considered asking your client to repeat back what was discussed when giving your advice? Are there any concerns regarding their ability to recall what you have advised them?

3. Have you discussed with your instructing solicitor/counsel your concerns as to whether the client may require a cognitive and/or capacity assessment?

If it is agreed that there may be an issue as to the question of capacity, the proceedings need to be stayed until any doubt has been resolved. This can be done by inviting the Court to make an order for an expert assessment. Before inviting the Court, have you done the following:

a) Made enquiries to identify an appropriate expert who can carry out the assessment?

b) Received a filing date from their office?

c) Discussed with the advocates of the other parties delete how this would affect timetabling and the way forward with proceedings?

5. If the client is assessed as lacking capacity then they are considered to be what is known as a ‘protected party’ and the proceedings cannot continue until a litigation friend has been appointed. No step can be taken in proceedings without the court’s permission (except by filing an application form to the Court or applying for the appointment of a litigation friend under r15.6 Family Procedure Rules 2010). The Court will have to consider whether it is necessary to make one or more participation directions to assist the protected party in participating or giving evidence in the proceedings.

6. If the client is assessed as having capacity but that they have a cognitive impairment and that the expert assessment sets out a number of recommendations in terms of communicating with the client, you should ensure that any professionals (including yourself!) who meet with the client are made aware of the recommendations of the assessment and are implementing those recommendations.

7. If the client is assessed as having capacity but that they do have a cognitive impairment and that they may require the assistance of an intermediary, there should be an application made for the instruction of an intermediary. The intermediary should carry out an assessment to confirm, firstly, whether the client requires an intermediary and, secondly, whether there are any recommendations as to how the parties and the Court can assist the client in participating or giving evidence to the best of their ability. If the assessment confirms that an intermediary is required then a formal application should be made to the Court to appoint the intermediary.

Conclusion

The Court of Appeal is clear on the need for both the parties and the Judge to identify whether a party is vulnerable at the earliest possible stage. It can sometimes be very obvious that a client presents with cognitive difficulties and can be identified as a vulnerable party but sometimes there are those clients in which the answer may not be so clear. It can sometimes be difficult to discern whether the client in care proceedings, for example, is demonstrating confusion as to why the Local Authority has made the application or whether they are simply questioning the application because they feel it is unjust. It will always be a judgment call at the end of the day but the takeaway point is that it is important that we are hard-wired to always ask these important questions regarding the vulnerability of a party both at the very beginning of the case and periodically throughout.