England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		11th September 2013

Application

1. This is an application by Edward Fardell ("the Applicant") for execution of a statutory will to be authorised by the court pursuant to section 18(1)(i) of the Mental Capacity Act 2005. Within that application the Applicant has applied for an order dispensing with service of the application on PQ.

Parties

2. AB is a young adult. She is the subject of this application. She suffered a brain injury whilst a teenager. She lives with her mother, stepfather and step brother.
3. Edward Fardell and Brian Bacon are partners in the firm of Thomson Snell & Passmore. They were appointed deputies for property and affairs for AB, acting jointly and severally, by an order dated 23^rd August 2012.
4. CD is AB's mother. She is married to DD. ED is the child of their marriage and AB's half brother. He is still a child.
5. FG is CD's mother and AB's grandmother. Her husband has recently died.
6. PQ is AB's father. His whereabouts are unknown.
7. RS and TS are also daughters of PQ but have a different mother to AB. They are older than AB. A fourth daughter UV has been mentioned by AB. According to CD PQ denies paternity in relation to UV.

Evidence presented

8. I have read the application papers filed by the Applicant pursuant to Practice Direction 9F6 including a witness statement by him dated 20^th March 2013. Acknowledgements of service consenting to the application have been filed by CD and DD. I have read a witness statement by CD dated 13^th July 2013. I have read a position statement by the Official Solicitor which includes an attendance note of a visit to AB by the solicitor acting for the Official Solicitor in this matter on 5^th July 2013. I have seen an assessment of capacity prepared by AB's GP on 8^th July 2013 and a letter from a consultant neurosurgeon dated 28^th March 2012 regarding AB's life expectancy. At the hearing submissions were made by Mr Bacon and Mr Rees.

Factual history according to CD

9. This history is taken from the information provided in the witness statements of the Applicant and CD. At the date of the hearing the application had been served on CD and DD and on the Official Solicitor, but not on PQ. Therefore there is no evidence from PQ to challenge CD's account, should he wish to do so.
10. AB is the child of CD and PQ. Following AB's birth the relationship between CD and PQ deteriorated. PQ was first physically violent to CD when AB was six months old. CD did not leave AB alone with him. His violence towards her and others escalated to the point that he was arrested on suspicion of grievous bodily harm. The Applicant's evidence does not state whether this was as a result of violence to CD, herself or to another person, or whether he was charged or found guilty of the offence.
11. Subsequently PQ attempted suicide. He was subject to a compulsory admission to hospital under the Mental Health Act 1983.
12. Very shortly after his admission to hospital CD terminated her relationship with PQ and moved out of their home. She agreed that AB should have contact with PQ, recognising the importance of her relationship with her father. The following month PQ abducted AB during a contact visit and took her to his family who lived around 100 miles away. He returned with AB the following day but refused to hand her over to CD until the police intervened.
13. Following the abduction CD did not allow PQ to have unsupervised contact with AB but through her solicitors offered supervised contact at a Family Centre.
14. CD applied for a residence order and prohibited steps order in the local County Court. She obtained a non molestation injunction in the Family Proceedings Court with power of arrest attached, which forbade PQ from using or threatening violence against her or intimidating, harassing or pestering her including by telephone. The order expired 28 days after it was made. There is no evidence that the injunction was extended or renewed.
15. PQ applied for contact and parental responsibility orders. The Family Proceedings Court made an order permitting PQ to have supervised contact with AB. However PQ did not take up all the supervised contact sessions available. The court subsequently dismissed his application.
16. Since that date CD and AB have not seen PQ. PQ has not paid maintenance for AB and CD has not claimed maintenance from him. He has not sought contact with AB. This is despite avenues of communication remaining open to PQ. CD does not know where PQ is living now or indeed whether he is alive. She does not know whether he has any other children.
17. Following the conclusion of proceedings in the Family Proceedings Court, CD and AB moved away from the area in which they had been living and established a new life elsewhere. CD states that she did this to avoid the risk of encountering PQ who had caused her to live in fear.
18. When she was about 13 years old, AB expressed interest in trying to locate PQ. CD says in her witness statement that AB's opinion changed when she learned more about him and she decided that she wanted nothing to do with him.
19. Whilst a teenager AB was involved in a road traffic accident as a result of which she suffered a severe brain injury. CD as litigation friend for AB pursued a personal injury claim. In 2012 a settlement under which AB recovered substantial damages was approved by a High Court Judge.
20. On the basis of evidence that AB lacked capacity to manage her property and affairs, an application was made to the Court of Protection and the Applicant and Mr Bacon were appointed as deputies for property and affairs on 23^rd August 2012.

AB's views

21. AB's views are referred to in the witness statements of the Applicant and CD and are also reported in the attendance note made by the Official Solicitor's representative when she visited AB on 5^th July 2013.
22. AB told the Official Solicitor's representative that her mother had left her birth father and that her father stopped turning up for contact at a contact centre. AB does not want to see him or have anything to do with him; he had the opportunity to make contact with her and chose not to do so. She does not want her father to get anything from her estate and he does not deserve anything.
23. AB mentioned that CD had told her PQ had other daughters who are older than her and in the same position as her.

Capacity and other medical evidence

24. An assessment of capacity in form COP3 completed by AB's GP on 12^th June 2012 was filed in connection with the application for appointment of deputies. It stated "she is unable to make more complex decisions. Her lack of insight and inhibition and inability to weigh up potential risks makes her vulnerable, she needs to be protected." He described AB's views on the application as follows: "she wants how she feels and thinks to be listened to and acknowledged. She expresses her view that she wants no involvement with her biological father or for him to have anything of hers." The same GP wrote a letter dated 7^th August 2012 in which he said "I personally am not convinced that she has true testamentary capacity".
25. A further assessment of capacity dated 8^th July 2013 was completed by the same GP. This does not directly address the issue of testamentary capacity but describes that AB is unable to make a decision for herself about "complex decision making such as paperwork, finances, managing her own affairs. She struggles with day to day decision making like what to wear. She cannot go out alone as not safe". In relation to AB's views, he says "AB has discussed her will with me in May 2012 and is quite adamant her biological father receives no benefit from her will. She does have the capacity to make this decision."
26. The Applicant has filed a letter from a consultant neurosurgeon presumably instructed in the personal injury claim, dated 28^th March 2012. He confirms his view that AB's life expectancy is not significantly reduced as a consequence of her head injury.
27. The evidence on capacity is not fully resolved and I have directed that a further assessment of AB's testamentary capacity be filed. However I am satisfied that the court has power to make interim orders and give directions in this application pursuant to section 48 of the Mental Capacity Act 2005 because there is reason to believe that AB lacks testamentary capacity.

Current and proposed provision for the devolution of AB's estate

28. AB is currently intestate. Under the statutory provisions on intestacy her estate will be divided on her death:

(i) if both biological parents survive her, to them in equal shares

(ii) if only one biological parent survives her, to that parent

(iii) if neither biological parent survives her, then to her half siblings (AB has no full sibling) on the statutory trusts set out in section 47 of the Administration of Estates Act 1925

Because AB's life expectancy is unaffected by her injury, it is likely that she will survive both biological parents.

29. The central provisions of the statutory will proposed by the Applicant are as follows:

(i) The partners of Messrs Thomson Snell & Passmore be appointed as AB's executors

(ii) Her residuary estate to be divided

(a) As to 45% to CD

(b) As to 25% to DD

(c) As to 20% to ED

(d) As to the remaining 10% to four charities

30. The effect of the proposed will is to remove PQ's entitlement to half of AB's estate under the rules on intestacy, his share being worth about £750,000 at the present time. If PQ should predecease AB, then his biological children who are AB's half-siblings will suffer a loss of entitlement under the intestacy.
31. The purpose of the personal injury award is to compensate AB for her loss over her lifetime and thus the award should be exhausted at the date of her death. Whether under a will or intestacy, others will only benefit if she dies prematurely or her award has not been expended as envisaged by the judge who approved the settlement.

Issue for the court's decision

32. The issue I have to decide is whether to grant the Applicant's application to dispense with service of the application on PQ and on RS and TS (and any others who are the biological children of PQ).

Legal submissions

33. The Applicant's submissions are in summary as follows.
34. The decision I have to make is a best interests decision because the overriding objective requires me to have regard to the principles of the Mental Capacity Act 2005. AB's position must be considered. Once her best interests are engaged I must have regard to the checklist set out in section 4 of the Mental Capacity Act 2005 The views of CD are very important in that assessment. She has such fear of PQ re entering their lives if he is served with the application that they might have to move from the home where AB has lived for a significant length of time. She may also seek for the application for the statutory will to be withdrawn. Her reaction, as AB's mother and primary carer, will have a very detrimental knock-on effect on AB's stability and well being and that of the whole family.
35. The case of In Re MN [2010] COPLR Con Vol 893 (referred to in the submissions of the Official Solicitor) is not of assistance because it concerns a decision about habitual residence and the applicability of the laws of another jurisdiction. In contrast this case is about the application of the Court of Protection Rules within this jurisdiction which require the court to have regard to the principles of the Mental Capacity Act 2005 in dealing with cases justly.
36. Very little is known about AB's half siblings who are unlikely to know of her existence. If they are served with the application they may start to play a role in AB's life which could have a destabilising effect. If the court decides that they, but not PQ, should be served, an order should be made prohibiting them from discussing the case with anyone else.
37. The fact that AB and her family have moved out of the area where they were living and the court can order that the application documents be redacted to remove all reference to their address, does not allay CD's fears. Mr Bacon contends that it is possible that AB's whereabouts can be traced through certain lines of enquiry.
38. The Applicant acknowledges that PQ will be materially affected by the outcome of the application. In considering the rights of the parties under the Human Rights Act 1998, I must carry out a balancing act, recognising that AB and her family have a right to an undisturbed family life and setting that against the right of PQ to participate in the proceedings. If AB had capacity she would be able to make a will privately without giving notice to anyone. She has made it clear she does not want her father involved.
39. The Official Solicitor's submissions are in summary as follows:
40. A decision by the court to dispense with the service of an application is not "an act done or a decision made for or on behalf of P". AB's best interests are not irrelevant but they are not determinative, as they would be if my decision were one taken on behalf of AB pursuant to section 16 and 18 of the Mental Capacity Act 2005. In that regard counsel for the Official Solicitor referred me to the judgment of Hedley J in Re MN.
41. The court's decisions on procedural matters should be considered with regard to its obligation to give effect to the overriding objective set out at Rule 3 of the Court of Protection Rules.
42. The court should recognise that a decision to dispense with service on an individual otherwise entitled to it may engage that individual's rights under the European Convention on Human Rights and in particular

Article 6: the right to a fair trial

Article 8: the right to a family life

Article 1 of Protocol 1; the right to property

43. The effect of a decision to dispense with service on an affected party is that the court may have to decide the substantive application without all the relevant material being before it. Counsel referred to relevant caselaw, in this instance pre Mental Capacity Act 2005 authorities Re HMF [1976] Ch 33 and Re B[1987] 2 All ER 475. Any decision about dispensing with service will be made by the Court on the basis of untested evidence. Fears about the consequences of service can in many cases be addressed by the use of the Court's powers under Rule 19 to redact documents to remove any reference to addresses or location generally.
44. The consequences to the individual who is not to be served should also be considered. PQ is entitled under the intestacy rules to a half share of AB's estate, currently valued at £750,000. If I authorise the making of the will that the Applicant seeks, he will receive nothing. Procedural fairness requires that he should have the opportunity to put his case to the court.
45. In the circumstances of this case the Official Solicitor acknowledges that there is a history of violence by PQ towards CD (but not towards AB). However he was also granted supervised contact with AB which he chose not to take up. His conduct was not such as to prevent the court from ordering supervised contact at the time of the events complained of. There is no reason to suppose that service of the application on PQ presents a risk of violence or other harm to AB. While the Official Solicitor recognises the level of distress that CD feels about the possible consequences of serving the application on PQ, it is a very serious step to say that the impact on CD justifies dispensing with service.
46. The Official Solicitor draws the court's attention to the position of AB's half siblings. They would benefit under AB's intestacy if PQ predeceased AB. On the evidence available that is likely to happen and for that reason the half siblings should be served with or at least notified of the application. If I were to direct that the half siblings be served but not PQ, any order preventing the half siblings from discussing the case with others would not only prevent them from taking legal advice but also from talking to each other and gathering information from PQ and others for the preparation of their case.
47. The court should not allow any preliminary view of the merits of the application, based on the evidence of one party, to override essential rules of procedural fairness.

Relevant Court of Protection Rules

48. In the Mental Capacity Act 2005 and the Court of Protection Rules the person who is the subject of proceedings before the Court of Protection is described as P.
49. Rule 3(1) of the Court of Protection Rules 2007 sets out the overriding objective of enabling the court to deal with a case justly having regard to the principles contained in the Act.
50. The principles contained in the Mental Capacity Act 2005 are set out in section 1 of the Act as follows:

(1) The following principles apply for the purposes of the Act

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purposes for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

51. By Rule 3(2), the court will seek to give effect to the overriding objective when it

(a) exercises any power under these Rules or

(b) interprets any rule or practice direction

52. By Rule 3(3) dealing with a case justly includes so far as practicable

(a) ensuring that it is dealt with expeditiously and fairly

(b) ensuring that P's interests and position are properly considered

(c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues

(d) ensuring that the parties are on an equal footing

(e) saving expense and

(f) allotting to it an appropriate share of the court's resources, while taking account of the need to allot resources to other cases.

53. Rule 38 of the Court of Protection Rules 2007 states

(i) the court may dispense with any requirement to serve a document

(ii) an application for an order to dispense with service may be made without notice

54. Rule 26 of the Court of Protection Rules states

in addition to its general powers and the powers listed in Rule 25, the court may dispense with the requirements of any Rule.

55. Paragraph 9 of Practice Direction 9F to the Court of Protection Rules sets out the respondents and persons who must be notified of an application for a statutory will. It states:

The Applicant must name as a respondent:

(a) any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application;

(b) any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application

(c) any prospective beneficiary under P's intestacy where P has no existing will

Relevant provisions of the Human Rights Act 1998

56. Section 3(1) of the Human Rights Act 1998 requires the court, so far as it is possible to do so, to read and give effect to the Mental Capacity Act 2005 in a way that is compatible with the European Convention on Human Rights. Schedule 1 Part 1 to the Human Rights Act 1998 sets out the European Convention on Human Rights. Article 6 deals with the right to a fair trial:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…..

57. Article 8 deals with the right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

E+W+S+N.I.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

58. Article 1 of the First Protocol to the Human Rights Act deals with the protection of property rights

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Relevant case law

Re MN [2010] COPLR Vol 893

59. Hedley J was asked to consider how the court would be likely to deal with an application for recognition and enforcement of an order made in the state of California pursuant to Part 4 of Schedule 3 to the Mental Capacity Act 2005. In his judgment, a decision to recognise or enforce a protective measure taken by a foreign court is not a decision taken by or on behalf of P and to conclude that it is would defeat the purpose of that part of the Schedule. Therefore it is not a decision which must be taken in the best interests of P such that the court is required by the provisions of section 1(5) of the Mental Capacity Act 2005 to undertake a full best interests assessment. However the implementation of the order, once the court had determined where P's habitual residence was and thus which jurisdiction was responsible for her care and her affairs in accordance with the provisions of Schedule 3, would be an act done on behalf of P in which P's best interests were engaged and a full assessment, in that case as to the arrangements for her travel to California, was required.

Re HMF [1975] 2 All ER 795

60. The question before the court was whether two charities which stood to benefit by the provisions of P's previous will, should be served with an application for a statutory will in which they were to receive nothing. Goulding J directed that the charities be joined as parties to the application. He said:

"Now I take the view that in general, in a case of this character it is better for the legatees under the previous will to be themselves brought before the court as respondents…The desire to maintain the confidentiality of a living patient's affairs must, in my judgment, cede to the necessity for the court to act fairly in exercising its powers….Without having some argument for those potentially interested under the previous will, the court cannot, to my mind, be satisfied that the proposed provision is one which the patient might be expected to provide if he or she were not mentally disordered…nor can it know the proper balance between the case presented by the present applicants and the claims, weak or strong, of those mentioned in the previous will".

Re B [1987] 2 All ER 475

61. This case concerned a power of appointment exercisable by P under the terms of her husband's will in favour of his nephews. P's Receiver applied to the court for permission not to notify the nephews. The Receiver's grounds for his application were that if the nephews were notified, a bitter and intractable family dispute would ensue. The Rules applicable at that time gave the court a discretion to determine whether to dispense with notification of the application. Millett J refused the application. In his judgment he explained his reasons:

"In my judgment, laudable though the Receiver's object may be, there are two overriding considerations. First the court must be satisfied before it exercises a judicial discretion that it has all the relevant material before it and that it has heard all the arguments which can properly be canvassed and which are directed to the question to be determined. Second all persons materially affected should be given every opportunity of putting their cases forward. Of course there will be exceptional cases in which it will be right to exclude a party from the proceedings, notwithstanding the fact that he is a party interested. Plainly delay, cost, embarrassment and the exacerbation of family dissensions are all relevant matters. But only in the most exceptional circumstances should the consideration to which I have referred be overridden…..I approach this matter on the basis that the court has a general discretion concerning notification, but that it is one which must be exercised in relation to the facts of each particular case. In the ordinary case, and in the absence of emergency or need to act with great speed or of some other compelling reason, all persons who may be materially and adversely affected should be notified."

My decision

62. I am asked to make a decision whether or not to dispense with service of the application on PQ. Such a decision requires that I apply the overriding objective set out in Rule 3 of the Court of Protection Rules. I have heard argument from both parties as to the meaning of Rule 3(1).
63. In my judgment Rule 3(1) does not require me to make a best interests decision pursuant to section 1(5) and section 4 of the Mental Capacity Act 2005 when I decide whether to direct that a party not be served with the application. This decision is one made by a judge in the exercise of powers given by the Court of Protection Rules. It is not an act done or a decision made on behalf of P. The principles of the Mental Capacity Act 2005 cannot be strictly applied to such a decision. For example the principle that a person is not to be regarded as lacking capacity because he does something unwise is clearly not a principle which can be applied to a decision by a judge made pursuant to the Court of Protection Rules. The principles set the context in which the case before the Court of Protection proceeds but do not strictly govern its case management or other decisions under the Court of Protection Rules 2007. In any event the overriding objective refers explicitly to the way in which the court must have regard to P; dealing with a case justly includes so far as practicable ensuring that P's interests and position are properly considered (Rule 3(3)(b)). The case of MN while not strictly analogous, supports this conclusion.
64. Article 6 of the European Convention on Human Rights entitles PQ to a fair hearing. This is not a qualified right. To direct that the application not be served on PQ is to interfere with his rights under Article 6. PQ will be excluded from the knowledge that his statutory entitlement to benefit from AB's estate has been removed and he will be prevented from putting forward his own evidence in response to the allegations made on behalf of the applicant and his submissions as to why he should benefit from AB's estate and to what extent.
65. Article 8 gives AB the right to respect for her privacy and family life. Article 8 is a qualified right and allows interference with the right to respect for privacy and family life in circumstances where it is necessary for the protection of the rights and freedoms of others, which includes the right of PQ to a fair trial.
66. If PQ is served with the application and as a result acts as CD fears in a threatening and harassing manner, AB's privacy and that of CD, DD and ED will be invaded and their right to family life interfered with. The court must be satisfied on the balance of probabilities that this is likely to happen and that the outcome for AB and CD, DD and ED as her family is likely to be so serious that it justifies an interference with PQ's rights under Article 6. I must make that judgment without seeing the evidence that PQ may seek to adduce to challenge the factual evidence and submissions of the Applicant.
67. Article 8 also applies to the right of PQ to a family life with AB. His decision to cease contact with AB when she was still an infant and failure to maintain any kind of parental relationship with her since that time are relevant matters to be taken into account by the court in considering how far to give effect to PQ's rights in this regard.
68. Article 1 of the First Protocol to the Human Rights Act protects the right of persons to the peaceful enjoyment of their possessions. It is beyond my remit to provide a definitive answer to the issue of whether an expectation of inheritance under the laws applying to intestacy constitutes a possession for the purpose of Article 1.
69. The cases of Re HMF and Re B were decided before the Mental Capacity Act 2005 came into effect and are thus not binding on this court. They dealt with a comparable issue, that of notification of applications under the Rules which then applied to proceedings in the old Court of Protection, and thus are of some assistance. To the best of my knowledge there is no reported case on this issue since the inception of the Mental Capacity Act 2005. According to those cases, there needs to be a compelling argument and exceptional circumstances to justify not serving an application on a person who will be materially affected by it. Both judgments were given before the Human Rights Act 1998 was implemented. Article 6 serves to reinforce the principle that parties to be materially affected by an order of the court should be notified of or served with proceedings and given an opportunity to be heard unless there are exceptional circumstances.
70. Addressing the elements of the overriding objective in turn:
71. I must ensure that this case is dealt with expeditiously and fairly. Steps taken to notify PQ of the hearing would delay the making of a final order in the application. However there is no immediate urgency in making a statutory will for AB as regards her health or any other matter. Dealing with a case fairly requires the court to enable all those likely to be affected by the Court's decision to have their say and put forward any evidence they choose to submit on the issue before the court. PQ and his children are likely to be so affected.
72. I must ensure that AB's interests and position are properly considered. AB has made her own feelings known. She does not want PQ to receive anything from her estate and she does not wish him to be involved in her life. These wishes are highly relevant to the best interests decision as to whether or not PQ should benefit under AB's statutory will. How far should they affect a decision about service of the application? CD's concern is that simply by serving the application on PQ, he will become a disruptive and disturbing presence in AB's life which cannot help but threaten her stability and happiness. This may also apply to his children. It is argued by Mr Bacon that the degree of anxiety and distress felt by CD is a relevant issue; as her mother and main carer for AB, her feelings will affect AB and DD and ED, all of which will have a negative effect on AB.
73. I must deal with the case in a way which is proportionate to the nature, importance and complexity of the issues. Were I to direct that PQ be served, it may prove impossible or very difficult to locate him and his family to the point where it is no longer proportionate to attempt to do so, despite the high value of AB's estate. That point has not been reached and I do not regard service of the application as disproportionate at this stage.
74. I must ensure that the parties are on an equal footing. This cannot be done unless the application is served on PQ, otherwise he has no opportunity to put his case as to whether he challenges the factual account put forward by the applicant and is able to make submissions as to why he should benefit from AB's estate.
75. I must have regard to the saving of expense and to the need to allocate an appropriate share of the court's resources to it while taking account of the need to allot resources to other cases. These considerations do not militate against service of the application on PQ at this stage.
76. I have weighed in the balance the arguments for and against making the order sought by the applicant. In favour of granting the application and permitting the Applicant to proceed without serving PQ are the following

(i) AB's interests may not be served by bringing PQ back into her life if he behaves in a way which is distressing or disturbing to her, so that her right to privacy and her family life with her mother, DD and ED is interfered with.

(ii) Even if limitations are put on the information available to PQ as to AB's circumstances, there is no guarantee that PQ will not be able to trace AB

(iii) AB may be negatively affected by the very strong feelings exhibited by CD as to the prospect of PQ and his children being involved in these proceedings

(iv) There is a potential interference with the rights of CD, DD and ED under Article 8 to respect for their family and private life if PQ were to behave as predicted by CD

(v) PQ has chosen not to play any role in AB's life since his separation from CD as evidenced by the orders in the Family Proceedings Court

77. In favour of dismissing the application and directing that the Applicant serve the application on PQ are the following

(i) PQ and his children will not be treated fairly by the court if they is not served with the application and given an opportunity to be heard.

(ii) The court will not have placed PQ and his children on an equal footing with the other parties to the application if they are not served with the application.

(iii) The rights of PQ and his children under Article 6 will be interfered with.

(iv) PQ's half share of AB's estate under her intestacy is likely to be of very significant value to him or to his children if he should predecease AB.

(v) There is no evidence that PQ was violent towards AB. CD did not object to him having contact with AB, albeit supervised contact, following court proceedings. Contact ceased because of PQ's choice rather than to protect AB

(vi) The court will have no opportunity to test the evidence put forward by CD as to the past behaviour of PQ and the likelihood that he will now behave in such a way as to be prejudicial to AB's interests. PQ may have an explanation as to the reasons for his past behaviour and decision not to remain in contact with AB of which the court should take account

(vii) The court has power to limit the information available to PQ and his children by directing notification of the application rather than service, and by directing redaction of documents to remove all reference to her current whereabouts

(viii) PQ has not chosen to act in a violent or threatening way towards AB or CD or to harass them since the abduction of AB.

(ix) Should PQ seek to act in a violent or threatening manner or to harass AB and her family, the courts have the power to issue injunctions to prevent such acts of violence or harassment. The Court of Protection has the authority to make decisions about contact between AB and PQ or his children if AB lacks capacity to make such decisions for herself.

78. I have found this decision a very difficult one. The factors in favour and against a direction to dispense with service of the application are finely balanced. In the end I have decided that the factors in favour of notifying PQ outweigh those against notifying him. The allegations against him are significant and serious; they are partly but far from fully supported by corroborative evidence. However I have not been able to hear PQ's side of the story which may shine a different light on the events described. Weighing all the factors in the balance I have come to the conclusion that I am not satisfied that the circumstances of this case are so exceptional or that there are sufficiently compelling reasons that I must direct that service of the application on PQ and his children should be dispensed with and I will not grant the Applicant's application.
79. I will not direct that PQ and his children be served with the application papers. I will order that they be notified of the application. If necessary I will direct that any documents sent to the Respondents must be redacted to remove any reference to AB's address or which may assist PQ in tracing AB (for example the name and address of her general practitioner).
80. Even before a fact finding exercise is carried out in relation to the allegations relating to PQ's behaviour, there are some salient factors in this case, which are effectively incontrovertible, and which are likely to be given very significant weight when the court makes its final decision. I consider these factors should be brought to PQ's attention when he is notified of the application. They are

(i) PQ has not seen AB since the contact proceedings were in progress

(ii) AB suffered a severe head injury over ten years after she last had contact with PQ

(iii) AB's estate is a very substantial one solely because of the personal injury damages she has received as a result of the injury.

(iv) AB's mother has devoted herself to AB's care

(v) AB's funds are required for her care throughout her life and are likely to be exhausted by the date of her death

81. A further telephone directions hearing will be listed before me to consider the implementation of my decision and the parties will be directed to file position statements addressing the matters set out in paragraph 80 above.
82. It may be thought that the circumstances of AB's case are very rare. In fact that is not the case. The Court of Protection deals several times a year with applications for permission to dispense with service of an application for approval of a statutory will, declaration of trust or the making of gifts on a person who is a respondent to be served according to practice direction 9F. Typically such a respondent is a family member (often an absent father) who is no longer in contact with P and those caring for P, and/or who has a poor relationship with them. Frequently such applications involve large sums of money. I have been asked to give a written judgment in this application to provide some guidance as to how the court is likely to deal with such an application.
83. Each case must be dealt with in the light of its own particular facts and the judge will apply the overriding objective in the light of those facts. I am well aware that other judges may take a different view from the view I have expressed in this judgment.
84. In my judgment permission to dispense with service or notification of an application altogether should only be made in exceptional circumstances, where there are compelling reasons for doing so. Otherwise the interests of justice will not be served and the court will not be seen to be acting fairly towards all parties.
85. The conduct of the Respondent may justify such an order: for example if he has been convicted of an offence of physical or sexual abuse of P, or if P's funds derive from a Criminal Injuries Compensation award where the Respondent was the assailant.
86. In matters concerning the Respondent's conduct, the court has to take a decision to dispense with service of the application while only having available evidence from the party seeking the order to dispense. The application is more likely to be successful if supported by objective evidence than unsupported allegations. The court is more likely to be persuaded of the strength of the case if there is independent and reliable corroborative evidence as to the past behaviour of the Respondent, whether in the form of criminal convictions, court orders, CAFCASS, or other reports by professionals, or other similar evidence.
87. The court may be willing to make an order to dispense with service of the application where the value of the financial benefit lost to the Respondent by the making of the order is not significant. Value should be considered both in absolute terms and relative to the Respondent's means. (A legacy of £10,000 may be of considerable significance to an elderly person on a low income but less important to a person of substantial wealth).
88. The court may also reach the conclusion, usually after enquiries have been made, that the cost to P's estate or to the parties, and the delay caused in concluding the application, of proceeding with service of an individual or class of Respondents (usually where tracing of potential Respondents will be necessary) is disproportionate relative to the value to the Respondents of the benefit they will lose by the proposed final order.
89. These examples are not intended to be exhaustive or to limit the circumstances in which judges may make an order to dispense with service of an application on a Respondent.
90. This judgment should also not be taken to apply to service of an application for a holding will, where there is acute urgency in the face of P's likely imminent death. The cases of In re Davey [1981] WLR p164 and In the matter of R [2003] WTLR 1051, although decided before the Mental Capacity Act 2005 came into force are of assistance as to service/notification of such applications.
91. I propose to publish this judgment in anonymised form and will listen to any representations as to whether any material in the factual account should be redacted to ensure anonymity for AB and her family.