PX, Re [2025] EWCOP 57 (T2)

IMPORTANT NOTICE

This judgment was delivered in draft via email on 3 rd June 2025 following the contested interim hearing on 20 th May 2025. It was formally handed down at a remote hearing on 9 th June 2025. This judgment was delivered in public but a transparency order dated 20 th May 2025 is in force. The judge has given leave for 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 P must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

[2025] EWCOP 57 (T2)

IN THE COURT OF PROTECTION SITTING AT WOLVERHAMPTON

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

AND IN THE MATTER OF PX

Date 3 rd June 2025

Before: HHJ Arthur

Between

STAFFORDSHIRE COUNTY COUNCIL (LA)Applicant

PXRespondents

MXRespondent

FXRespondent

______________________________________________

JUDGMENT AT CONTESTED INTERIM HEARING

20 th MAY 2025

______________________________________________

Introduction:

[1]These proceedings were heard in public subject to a transparency order made on 20th May 2025.

[2]This judgment is being delivered to the parties in draft by email on 3rd June 2025, with formal handing down listed at a remote hearing at 3.30pm on 9th June 2025. At the conclusion of the contested interim hearing on 20th May 2025, I gave my decision on the key issues arising in this case orally, but due to there being insufficient Court time during the hearing, I indicated to the parties at that time that I would provide my reasons via a written judgment as soon as possible thereafter. What follows are my reasons for the decisions which I outlined orally at the hearing.

[3]This judgment should be read in conjunction with the written judgment I provided following the urgent hearing on 2nd May 2025, so I will try to avoid repeating what was said in that judgment.

[4]I am concerned this afternoon with a young lady, PX. She is 18 years old. She has been diagnosed with Downs Syndrome, Hirschsprung’s Disease (a bowel disorder), Hypothyroidism and Nystagmus. She has learning difficulties, speech and language difficulties, which affect her capacity to make decisions about her affairs.

[5]The application which brought the case into Court proceedings was made by Staffordshire County Council (who I will call the local authority, or “LA” for short). The LA was represented by Mr Green of counsel, instructed by the solicitor with conduct, Ms R, the allocated social workers (“SWs”) Ms O, Mr A, and Ms I, the Service Lead Ms P, all of whom attended the hearing.

[6]PX’s mother is MX. She attended this hearing, but was not legally represented, as she said she had not had time to seek legal representation.

[7]PX’s father is FX. He attended this hearing, and was represented by his solicitor, Ms C.

[8]PX did not attend the hearing as it would not have been in her interests to do so. She was not represented at this hearing due to the Official Solicitor (who I had invited to act as her litigation friend) had indicated that the criteria were not met. However, there was a suggestion that the issue may have related to legal aid, and FX has now obtained all the relevant documentation for an application for legal aid, so hopefully this will be arranged before the next and final hearing which is to be listed later on in 2025 (date to be confirmed in due course).

Background:

[9]I will not repeat the summary of the extensive history to this matter that was set out in my previous judgment from the hearing on 2nd May 2025, but simply update on events since that last hearing.

[10]Following my decision that PX should return to school immediately, and should only spend time with MX supervised by professionals pending this next hearing, the SWs collected PX from MX’s home and returned her to C1. MX described in her position statement produced on the morning of the hearing (but not in her narrative statement filed more shortly after the events) how distressed PX was at leaving her and returning to school (“…distraught. She howled and cried… under the [bed]covers crying and refusing to go.”). The SW made no mention of this, saying PX was excited to be returning to school. The SW reports no concerns since PX has been back at school, or with resuming contact with FX. The SW also investigated each of the parents’ safeguarding concerns against the other, and found no evidence to substantiate MX’s concerns but that FX’s concerns were substantiated (details set out in her report).

[11]On 17th May 2025 MX attended a fashion show where PX was modelling. When the LA became aware of MX’s intention to go (because MX mentioned it to PX during contact time on 13th May 2025 which was supervised by the LA) the LA solicitor emailed MX that same day advising her that that would be a breach of the order made on 2nd May 2025. MX indicated that she still intended to go, as it was a public event, she had bought tickets, it was a particularly special occasion for her, and important to PX that MX attend in support. The LA replied that it would still breach the order, but if MX chose to go against the LA’s advice, in breach of the order, she should not speak to PX or FX. In her position statement, MX explained that:

“I did not tell [PX] I would be there as I did not know myself at the time if I was allowed to attend given the court order and advice from the LA. Following a further email from the LA I did attend on the day, it was a public show and I had pre bought tickets for myself and friends. I was careful not to make any direct contact with PX or FX as advised and even found alternative toilets to use to avoid walking past FX.”

The clear implication of that statement (albeit it does not say so directly) is that the LA’s first email said no, but the second said it was alright to attend as long as MX did not speak to PX or FX. Having seen the email, that was not what the LA said. MX attended the event despite the clear LA advice that she should not attend as it would breach the order. I consider that it did, and more than that, MX must have been aware that it posed a significant risk of putting PX in the middle of a distressing situation. It could easily have led to an argument between FX and MX about what she was and was not allowed to do, which PX would have witnessed. PX might have wanted to speak to MX, and been distressed and confused by not being allowed to do so. MX must have been aware of these risks, yet put her wish to attend the event ahead of the risk of upsetting PX.

[12]This incident at the fashion show has led to FX considering whether to apply for injunctive protection from MX, but as it only occurred 2 working days before this hearing he had not had time to make any application. MX also breached the previous court order by filing her statement late, on 14th May 2025 instead of 9th May 2025 which had been required in order to allow the other parties to file statements in response. MX emailed the statement to the LA but not to FX’s solicitor, who only received it when the LA solicitor forwarded it on. The statement did not include the exhibits, which still had not been provided at the start of this hearing.

Preliminary issues/applications:

[13]MX sought to adjourn this hearing to allow her time to obtain legal representation, via an email to the Court dated 18/5/25 (the Sunday before the hearing) which I did not receive until Monday 19/5/25 (the day before the hearing) at which time I emailed (via the Court Office) the response that as this would likely be opposed by the other parties, it would need to be determined at the hearing itself as a preliminary issue on submissions so that the other parties had the opportunity to argue against the adjournment if they so wished. At the hearing, MX wanted to show me a letter from her GP in support of her application to adjourn. I explained that if she wanted to adduce further evidence, she needed to show it to the other parties’ advocates (unless there was a reason she could not/did not wish to do so) and then they could decide whether they were content for it to be put before the court, or whether they wished to argue against it. The other parties were content for it to come in, so I gave her permission to adduce and rely on it. It only reported what MX had told the GP, about feeling overwhelmed by proceedings and the task of representing herself with short timescales; it did not contain any view from the GP.

[14]The other parties did oppose the adjournment insofar as the urgent issue of where PX should spend time during the imminent half-term holiday (next week), and whether PX’s time with MX should continue to be supervised in the interim, but agreed that today’s hearing could not be treated as a final hearing as there were several issues which could not be finalised yet, in particular because MX had filed her statement so late that there had not been opportunity for FX to respond properly, and MX had still not filed the exhibit evidence. MX did not oppose proceeding with the limited issues of half-term and interim arrangements pending a final hearing, so no longer sought an adjournment on those terms, and the hearing proceeded on that limited remit. Having seen MX’s ability to represent herself competently and comprehensively at the previous hearing on 2nd May 2025, and read her detailed statement and position statement produced for this hearing, I had no concerns regarding her ability to represent herself at this hearing.

[15]The next issue was the format of the hearing. I asked whether anyone wished me to hear oral evidence from any witness. The LA and FX submitted that the matter was suitable to be dealt with on submissions. MX did not wish to cross-examine any witness, but wished to give oral evidence herself. I explained that generally I heard evidence when someone disagreed with what they had said in their statement, so that they could be challenged on it through cross-examination. I suggested that as she was unrepresented so would be making her own submissions, there was a somewhat blurred line between submissions and oral evidence, so if she gave the affirmation before starting her submissions, it would stand as oral evidence as well. I checked that the other parties would not want to cross-examine her in those circumstances, and that everyone was happy to proceed on that basis, and all agreed that this was a sensible and proportionate way to deal with the issues for today’s hearing.

[16]MX then made reference to a large file of documents she had brought with her to Court, which she said demonstrated that she could care for PX appropriately. I explained that – just as with the GP’s letter – we had to go through the proper process if she was asking the Court’s permission to rely on new evidence which had not been provided before. I reminded her of how she had to show the relevant documents to the other parties’ advocates, so they could consider their position on whether to agree or oppose the evidence being adduced. If there was a dispute, I would hear argument from both sides and decide whether or not the evidence should be allowed in. I explained that it would not be possible for all of the documents in the file to be admitted as it would take too long for everyone to read them during the hearing, but she could choose a couple of documents if she felt that they were crucial to her case. She asked for 10 minutes to find the crucial documents and show them to the other parties, which I allowed. In fact it took a lot longer for her to find several documents, but once the other parties’ advocates had seen them, they raised no objection to her application to adduce them, perhaps because they considered that the documents assisted their own application. I will refer to the new documents where relevant in my analysis of the evidence below.

[17]On that basis we proceeded with the hearing on submissions. I asked the LA and FX’s solicitor to give theirs first, and allowed MX to give her submissions last, because as she was unrepresented it would be easier for her to respond to everything that had been said, and to see how the lawyers made their submissions which might help her make her own. I also heard the LA and FX’s submissions before lunch, so that MX had the luncheon adjournment to make any additional notes (MX had copious notes prepared before the hearing, and added to them during the course of the LA and FX’s submissions). I also said I would allow the LA and FX’s solicitor to respond to MX’s submissions (a right of reply) as wanted to ensure that everyone had a fair trial. Everyone was happy with that way forward. I will deal with the contents of the submissions where relevant in my analysis of the evidence below.

[18]During this hearing, the LA also provided the judgment from the final hearing of the private law Family Court proceedings which I had requested disclosure of during the initial hearing on 2nd May 2025 but had not made its way into the bundle for this hearing. FX’s solicitor also informed me that MX had sought permission to appeal the decision which was refused on 22nd July 2022 on the basis that it was: “…totally without merit because the grounds of appeal are so uniformly weak and because the applicant has apparently made no effort to understand the judge’s reasoning. Instead this is an automatic application of the kind threatened during the hearing…” and provided that order (including reasons for refusal).

Parties’ positions:

[19]By a COP1 application dated 30 April 2025, the LA urgently applied for personal welfare orders under the Mental Capacity Act 2005 ('the MCA 2005') relating to PX's residence and contact. Specifically, the LA seeks the following orders:(i) A declaration that PX lacks capacity to conduct these proceedings and make decisions regarding her residence and contact.

(ii) An order that MX return PX to FX’s care in accordance with the LA’s Conveyance Plan;

(iii) An order that PX’s time with MX be supervised (by the LA if there is no suitable family member willing and able to supervise) in accordance with the LA’s Contact Plan;

(iv) An order restricting MX’s telephone calls and messages to PX in accordance with the LA’s Contact Plan.

[20]These personal welfare orders were supported by FX, and opposed by MX, who wished for PX to remain in her sole care. I made all the orders on an interim basis at the last hearing on 2nd May 2025, but listed the matter for an interim contested hearing as soon as the relevant further evidence could be filed and before the half term holiday, as this was a significant point of dispute because PX would not be at C1 so needed to be with one of her parents. I also wanted to review the order for MX’s time with PX to be supervised, because it was a very restrictive order so should last for the shortest time necessary to protect PX from any risks of unsupervised time with her MX.

[21]At this hearing, the LA and FX maintained their concerns regarding MX’s care for PX, and the need for her contact to remain supervised. MX maintained her concerns regarding FX’s care for PX, and regarding C1 to a lesser extent, said PX should be in her care over the half-term holiday, and opposed the need for her contact to be supervised anymore.

The Law:

[22]The core legal principles which underpin my decision are as follows:

[23]A person must be assumed to have capacity unless it is established that she lacks capacity (s.1(2) MCA 2005).

[24]There is a two-stage test for determining whether a person has capacity: (1) the diagnostic test set out in s.2(1) MCA 2005 which is decision specific:

“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.” (2) the functional test set out in s.3(1) MCA 2005: “For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).”

[25]The inability to undertake any one of the requirements set out in the above sub-paragraphs will be sufficient for a finding of incapacity provided that the person concerned is unable to satisfy any one of the individual component elements because of an impairment of, or a disturbance in the functioning of, the mind or brain (RT and LT v A Local Authority

[2010] EWHC 1920 (Fam)

at [40]).

[26]The burden of proof lies on the person asserting a lack of capacity and the standard of proof is the balance of probabilities (s.2(4) MCA 2005 and KK v STC and Others

[2012] EWHC 2136 (COP)

at [18]).

[27]S. 15(1) MCA 2005 provides that the Court may make declarations as to(a) whether a person has or lacks capacity to make a decision specified in the declaration;

(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and

(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. S.15(2) provides that "act" includes an omission and a course of conduct.

[28]S. 48 MCA 2005 gives the Court the power to make an interim order by providing that:

“…the Court may, pending the determination of an application to it in relation to a person ('P'), make an order or give directions in respect of any matter if (a) there is reason to believe that P lacks capacity in relation to the matter, (b) the matter is one to which its powers under this Act extend, and (c) it is in P's best interests to make the order, or give the directions, without delay.”

[29]If a person is found to lack capacity the court then proceeds to make a best interests decision pursuant to s.1(5) MCA 2005, which provides:

“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.”

[30]When determining what is in a person's best interests, consideration must be given to all relevant circumstances, as set out in s.4 MCA 2005:

“(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of - (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2). The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3). He must consider - (a). whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b). if it appears likely that he will, when that is likely to be. (4). He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. …. (6). He must consider, so far as is reasonably ascertainable - (a). the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b). the beliefs and values that would be likely to influence his decision if he had capacity, and (c). the other factors that he would be likely to consider if he were able to do so. (7). He must take into account, if it is practicable and appropriate to consult them, the views of - (a). anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b). anyone engaged in caring for the person or interested in his welfare, (c). any donee of a lasting power of attorney granted by the person, and (d). any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in sub-section (6). …. (11). 'Relevant circumstances' are those - (a). of which the person making the determination is aware, and (b). which it would be reasonable to regard as relevant.”

[31]The case of ITW v Z

[2009] EWHC 2525

sets out the following important points when evaluating what is in P's best interests:

“(i) The first is that the statute lays down no hierarchy as between the various factors … beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's 'best interests'. (ii) The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight. (iii) The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of 'magnetic importance' in influencing or even determining the outcome.”

[32]Whether or not a person has capacity to make decisions for herself, they are entitled to the protection of the European Convention on Human Rights; in this case, the Article 5 right to liberty, Article 6 right to a fair trial, and Article 8 right to respect for private and family life. There shall be no interference by a public authority with the exercise of these right except in accordance with the law, and where it is necessary, and proportionate to the risks identified. The LA has a duty under section 1(1) of The Care Act 2014 to promote individual wellbeing, including in relation to personal relationships, and must ensure that any restriction on a person's rights or freedom is kept to the minimum necessary. It is an aim of the UN Convention on the Rights of Persons with Disabilities to secure the full enjoyment of human rights by disabled people and to ensure they have full equality under the law. Further, it is the aim of the UN Convention on the Rights of Persons with Disabilities to secure the full enjoyment of human rights by disabled people to ensure that they have full equality under the law. There is, however, no presumption in favour of a right to family life in the best interests analysis (K v LBX

[2012] EWCA Civ 79

[33]In The Health Service Executive of Ireland v CNWL [2015] EWOP 48, Baker J (as he then was) considered the importance of P’s involvement in proceedings, particularly those involving deprivation of liberty. Baker J opined that "very urgent cases" might require a slightly different approach to representation for P, albeit only on an interim basis. He stated at paragraph 34:

“… In very urgent cases, the court may conclude that an interim order should be made without any representation by or on behalf of the adult, but direct that the question of representation should be reviewed at a later hearing. Such a course seems to me to be consistent with the analysis of Black LJ at paragraph 104 of Re X. In every case, however, when carrying out that analysis, the court must be alive to the danger identified by Black LJ, at paragraph 100 in Re X that the process may depend "entirely on the reliability and completeness of the information transmitted to the court by those charged with the task" who may "be the very person/organisation seeking authorisation for P to be deprived of his liberty".”

The Evidence and Submissions:

[34]For the purposes of determining the issues, I have considered the parties’ oral submissions, together with the written evidence of the bundle plus the additional evidence adduced by MX during this hearing.

[35]The LA and FX assert that MX’s fixation on her false beliefs that FX has sexually or physically abused PX, or that she may be being sexually abused at school, drive her to keep PX in her care, and PX is exposed to these harmful false beliefs which causes PX distress, confusion and disruption to her primary attachment figures. Whilst MX continues to hold these believes, she will be unable to prevent herself from saying something to PX, or acting in this way in front of PX, or trying to keep PX in her care. MX will gather evidence to support her beliefs, filtering out any information that contradicts her views, and adding things together to leap to conclusions which are not supported by the evidence. These issues have been longstanding, as they were identified as problems by Professor Wilcox is his report dated 18/11/2021 prepared for the Family Court proceedings. He said:

“I do not consider that mother recognises the harm caused to her daughter by this inadequately concealed ongoing deep antipathy that she holds towards FX, but I consider that this has substantially contributed to PX’s notably regressed behaviour and emotional insecurity over 2021.”

Professor Wilcox also said that MX infantilises PX instead of allowing her independence: “I formed the opinion that PX’s reported regressed behaviour was likely associated with MX’s style of engagement with her, wherein routines and boundaries are likely looser than when shared care was occurring”, which the LA and FX also assert that MX continues to do.

[36]The LA and FX assert that all of this poses a risk to PX’s emotional wellbeing that can only be prevented by supervision of MX’s time with PX, by a professional because the relationship between the parents is too acrimonious to allow that to be successful. MX will not abide by rules or orders because she thinks she knows best what is in PX’s interests, with further examples even since the last hearing less than 3 weeks ago: breaching the “no contact for the first 48 hours after return to school” by messaging PX, and breaching the “no contact except supervised by a professional” by attending the fashion show.

[37]The LA and FX also assert that MX poses a physical risk to PX in that she has sought to progress contact before being trained in the proper techniques for anal washouts, which if done wrong can cause serious physical damage or even fatal injuries. She has also misunderstood or misremembered PX’s medication dosage. MX challenged this, complaining that she had been trained in the “cone” technique and FX had unilaterally switched to the “Klick” (also known as the “catheter” or “balloon”) system, which was more complex. MX said she had undergone training in the Klick method, which had involved using the equipment, but had not involved trying it out practically on/with PX, but that this training was sufficient to carry out washouts and she did not require the further practical training, because she said PX is able to undertake the washouts herself so MX would only be supervising her, and because the staff at C1 were only trained with the equipment not with PX. However, this is inconsistent with what MX said in her statement for this hearing:

“I have always maintained that PX requires careful supervision and support when managing her washouts NX is now saying the same as I have done, PX requires support managing her washouts.”

In any event, MX agreed to do the additional training requested – this was the training undertaken at the hospital appointment on 15th April 2025 when MX took PX home with her.

[38]FX and the LA remained adamant that without the practical training which only took place on 15th April 2025, MX was not safe or authorised to undertake washouts, and as these are required every other day, she could not have contact lasting more than one overnight because a washout would become due. MX disputes this, and has been seeking longer contacts for many months, in particular when she obtained catheter equipment in December 2024 (evidenced by one of the documents produced by MX during this hearing) before refusing to return PX to FX in January 2025 for several days (evidenced by screen shots of messages between the parents produced by MX during this hearing). She did this again in March 2025. MX said she was doing so because FX refused to extend her contact, which was coercive and controlling of her and PX, the limitations were unnecessary as she had had sufficient washout training to undertake the washouts as required, and PX wanted to stay longer so her wishes should be respected.

[39]MX’s case was that PX should live with her when not at school because: PX wanted to live with MX; PX did not want to live with FX because he had hurt her; and FX posed a risk to PX. Those three issues are interlinked, and also linked with the concerns raised by the LA and FX, but I will endeavour to deal with them in turn:

[40]MX appeared to believe that the LA had decided that PX had the capacity to make decisions about with whom she wanted to spend time. During her submissions, she said:

“I was simply abiding by PX’s views and wishes expressed to me during the hospital appointment on 15th April 2025. The LA said to be led by PX’s views since the mental capacity assessment completed in May 2024 by Ms L. It’s been repeatedly stated in various documents, forms, and verbally, that we should be led by PX’s views.”

She described how Ms L (who had undertaken a capacity assessment in 2024) had told MX that whilst PX was not competent to make big decisions like signing a tenancy agreement, she was able to make smaller decisions like with whom she wanted to spend time. MX appears to have taken this to mean that PX is competent to make decisions about her time with each parent. MX also referred to the Education Tribunal decision taking PX’s views into account, as evidence that PX had capacity to decide where she wanted to live. As I explained in my previous written judgment, MX has missed the difference between PX’s wishes being considered and followed where possible, and her having competence to make decisions. I explained during the hearing that just because PX might want to wander off alone it did not mean that it was safe for her to do so – MX had actually raised concerns as to whether C1 allowed PX to simply open the external gates with her swipe card without intervening (for which there was no evidence, it was just a question MX raised), which MX considered would be a risk to PX. So MX accepts that there are some things PX might want to do that would not be safe for her to do. I explained that if (as the LA and FX assert) the Court found that MX posed a risk to PX, then even if PX wishes to live with MX, or spend time with her unsupervised, the Court might not be able to follow PX’s wishes if it were not safe to do so, and PX could not take that decision as she lacked capacity to weigh up the risks appropriately.

[41]I will therefore take PX’s wishes into account, but they are not determinative given that the Court has already found she lacks capacity to make those decisions. I also note that there is a dispute as to what PX’s wishes actually are. I only have MX’s word for it that PX has said she wants to live with MX and does not want to see FX. FX and all the professionals involved with PX’s care say that she is happy to see FX. I also note the comments (referred to in my previous judgment) from the nurse NX at the hospital appointment on 15th April 2025 regarding the change in PX’s presentation and demeanour and the implication that MX is influencing PX’s expressed wishes, whether intentionally or unintentionally. I also note MX’s allegations of coercive control by FX, which would by implication also pose a risk that FX was (whether intentionally or unintentionally) influencing PX’s expressed wishes. I must therefore be cautious about which wishes to take into account, and whether I can be confident that they are PX’s genuinely-held and uninfluenced wishes. I certainly cannot find in favour of MX’s case just based on PX’s wishes, given her lack of capacity to make such decisions.

[42]There are different accounts of the reason why MX took PX home with her following the hospital appointment on 15th April 2025. Ms L reported (in her contact Assessment Capacity Report dated 23/4/25, writing up the visit undertaken on 17/4/25, 2 days after the hospital appointment) that PX told her that FX had hurt her at the appointment on 15/4/25 by hugging her too hard. During her submissions at this hearing and via her statements written for this hearing, MX said that PX had told her (during the part of the appointment where they were alone) that she did not want to go to the football match (FX’s planned activity for that afternoon):

“When PX was traumatised at the hospital appointment on 15/4/25 with FX’s behaviour, PX trying to tell FX that she didn’t want to go to the football, but rather than listening to her, FX just started to attack me, saying I’d coerced her. FX’s behaviour upset her. She was crying, scared, to the extent that she didn’t want to return to his care after, so she returned home with me.”

MX made no mention of FX hugging PX too hard in her oral account, nor in her written statements.

[43]MX said during her submissions at this hearing:

“PX and I have missed out on a lot since the 2022 Family Court order. Since before she was 18 years old, PX has been saying that she wants to spend more time with me. Each time I’ve asked FX for more time, as per her wishes, he’s objected and refused. There are countless examples.”

The examples she gave were two occasions when FX did not agree to allow MX’s contact to be extended so MX kept PX anyway.

[44]MX described an occasion on 30/10/2024 when MX returned PX 5 hours later than the agreed time. MX said she had asked FX’s consent because she wanted to take PX to visit her brother in WX and could not make the return journey within the time available. She said:

“FX was expecting PX to be returned by 2pm. I’d asked previously for a few extra hours until 6pm because WX is a long way. I was a little late [for 6pm]. FX hadn’t responded, so he said he hadn’t agreed to 6pm. I’d asked him the night before and the morning of, and had no response, so rightly or wrongly I made the decision to take PX [to WX], because I had planned it with my brother. My phone battery died. From 2pm FX was [messaging] demanding where I was, and why I was not back. I messaged him at 3pm saying I was in WX, and would be back at 6pm. But we got stuck in traffic, so I was actually back at 7pm. I took PX to Waitrose [the handover location], but FX was not there. I drove to FX’s to deliver PX, and FX was coming out in his car, very agitated, and he blocked my car with his. XF banged on my windscreen, and demanded PX back, dragged PX out of the car, and took her back to his house. When I got home, my doorbell was broken, and files had been moved around [inside my house] so I reported it to the police that FX had been in the house going through my files looking for things.”

This was a completely new allegation which had not been made previously that FX had been violent towards her and PX, caused criminal damage to her doorbell, broken into her home, and considered stealing her paperwork. She made no mention of any evidence of forced entry so it is unclear how FX could have entered her home when she was not there. There was no evidence of any report to the police as MX did not provide any paperwork and FX said the police had never spoken to him about it. It is astonishing that such serious allegations are made today, over 6 months after the alleged incident, without having been mentioned previously (such as in MX’s statement). I cannot rely on MX’s account of this incident, unsubstantiated by any contemporaneous evidence, and when it has arisen so late in the day. But based on MX’s own account, she behaved entirely inappropriately by proceeding with her trip which she knew she could not complete within the allocated time, without FX’s consent to the extension of time.

[45]The other occasion MX described was on 1/1/2025:

“PX wanted to stay longer. FX banged on the door demanding her return.”

However, as part of the additional evidence MX produced during this hearing, she produced screenshots of their text message interactions that day showing that she demanded extra time, FX refused, and MX decided to keep PX anyway. FX attended the handover location at the normal time to find MX and PX were not there, and eventually agreed some additional time because PX was not due a washout procedure so MX would not have to give her one and she would be returned to FX before her next washout was due. This was at a time when FX said that MX had not done the training necessary to undertake the new klick washout procedures appropriately. As part of the additional evidence MX produced during this hearing, there was a receipt for MX having collected 5 klick catheters from a pharmacy on 13/12/2024 (i.e. shortly before the Christmas/New Year contact). This suggests that MX intended to undertake washouts using the new klick procedure during this Christmas holiday (i.e. that she had planned beforehand to keep PX beyond the allocated contact time).

[46]MX’s case is that she could do the klick washouts as she had received the training on the new procedure years ago – she had just not had the training on PX, but this was not necessary. However, evidence she produced during this hearing, suggests otherwise. An email MX sent to the LA on 11/7/2022 complained about FX unilaterally changing to the “more complex” catheter/klick washout system, and said:

“I too wish to be trained on this new system – it’s reasonable I’m included rather than excluded from training and I wish to be trained to continue to be able to support PX….”

She also provided messages between the parents in which she said: “PX will be staying here, please confirm medications, PX is fine and happy, please confirm washout recipe” then in a subsequent message she referred to the wrong level of medication as she had not seen that the prescription required different quantities on different days, which could have resulted in PX receiving an overdose of the higher level on consecutive days. This evidence undermines her case that she knew what she was doing.

[47]In oral submissions she said that:

“I’ve had training, and PX was supposed to be independent with her washouts…[the training I had] was practical because I had the equipment, but PX wasn’t present. It wasn’t a pre-requisite to practice [klick washouts] on PX, because she was fully independent at doing washouts so I was just supervising. And school staff didn’t have PX there for their training. I’ve supported PX with washouts in various forms from when she started with tubes for 2-3 years, to using the cone system for many years, and I’ve had far more experience supporting and managing PX than anyone except maybe FX, so I know the risks, what PX can manage, what PX’s body is like, better than anyone else. I’ve supported her throughout her life with all her needs, including stoma, washouts, and other medical interventions.”

This suggests that she had had sufficient training without the hospital appointment on 15/4/2025 which begs the question why that additional appointment was required – it is unlikely that the NHS would have provided additional training unnecessarily. It suggests PX does not require help with the washouts which is at odds with everyone requiring the training, and with MX alleging that FX hurt PX during the washouts. FX adamantly denies that the school staff training did not involve PX.

[48]All of the evidence (including the new evidence provided by MX) is against MX’s account that she did not require the additional training before undertaking the new washout procedure with PX. This means that she was unreasonable in pressing for more contact beyond the next washout being due. FX was being reasonable in not allowing additional contact beyond when the next washout being due, because MX was not trained to do them. I note that MX’s new evidence also contained a letter from MX to PX’s previous GP dated 28/3/2025 ordering a repeat prescription of the “balloon medical equipment in good time to enable PX to spend time with myself during the Easter holidays” showing that MX planned to keep PX with her during the Easter holidays. I find, based on all the evidence before me, that it is more likely than not that MX’s decision to take PX from the hospital appointment on 15/4/2025 was pre-planned, and not due to anything PX said to her.

[49]MX’s decision to take PX from the hospital appointment and keep her may have been based on MX’s belief that FX had hurt PX and posed a risk to her. However, MX’s numerous allegations against FX have little to no evidence in support. MX described in her submissions during this hearing:

“I’m not the risk here. It’s absolutely disgusting what they’re doing. FX is coercively controlling me and PX. The Court system has a lack of ability to understand the nuances of coercion. If you looked at the 10 years of legal proceedings, you would see clearly the financial abuse, the emotional abuse, the coercive control, the physical intimidation of both children and of me.”

MX referred to her belief that FX was overdosing PX on her medication, and FX’s mental health conditions, both of which had been considered by HHJ Harris (as she then was) in the Family Court proceedings. No findings were made in respect of either of these matters, but findings had been made against MX. I explained that the Family Court decision in 2022 had analysed all the allegations by both parents against the other, and concluded that PX should live with FX because he did not pose a risk to her, and that MX’s contact should be supervised because MX did pose a risk to her. I explained that I could not go behind that decision. I advised MX that I could therefore only consider examples of abuse and risk since the 2022 decision, not issues that had been considered in that judgment. MX replied:

“There were procedural issues in the Family Court. I know what I know. I just want PX to be safe. When she raises concerns with me, it makes my blood run cold …I want PX to be safe. Whether FX is doing this knowingly or unknowingly, I’m just raising points so everyone is listening today.”

In her statement for this hearing, MX said that PX’s wishes were not taken into account by the Family Court. I can see from the judgment of HHJ Harris (as she then was) that this is not the case – they were one of the welfare checklist factors taken into account, but were not determinative, which is entirely consistent with Family Law. I explained that all of MX’s perceived procedural irregularities had been explored by the Court of Appeal who had rejected her appeal at the permission stage in the strongest of terms, saying the appeal was:

“…totally without merit because the grounds of appeal are so uniformly weak and because the applicant has apparently made no effort to understand the judge’s reasoning. Instead this is an automatic application of the kind threatened during the hearing…”

[50]MX cannot seem to stop herself repeating her concerns, even those that have been explored by professionals and the Court and discounted, because she still believes them. She will continue to act in a way consistent with her strong beliefs no matter how many times she is told by professionals (including the Court) that her beliefs are wrong. I asked MX whether she accepted that she might pose risk of emotional harm to PX by her strong beliefs if her beliefs were wrong. MX replied:

“I can see that. But only if I’m wrong… I have my instinct.”

Professor Wilcox’s report from the Family Court proceedings said:

“MX made further assertions that FX was psychiatrically unwell and would, in her opinion, have a harmful and even endangering impact upon PX if contact was not supervised.”

It would appear that this issue of MX making unsubstantiated allegations against FX, and not recognising the adverse impact on PX, continues.

[51]It was a struggle to keep MX focussed on matters relevant to the immediate issue of interim contact over the half-term holiday. She repeatedly referred to historic issues such as allegations FX was overdosing PX’s medication, financial abuse relating to their separation settlement, or raised other issues such as wanting to change PX’s school (which was properly determined by the appropriate tribunal, and is not the subject of this application and hearing). When asked directly for examples of coercive control since 2022, the only examples that MX gave were the two incidents above, FX’s general opposition to extending contact time, and:

“taking her to the football when she doesn’t want to go… not listening to her, not allowing her to express herself, that’s coercive control. When he’s influence her, taken her to experience days at C1, influenced her against C2 [PX’s previous school] by telling her people had been raped there, so she’s lost connection with the people at C2 now. I know what he’s like, he controlled me, and he’s doing the same to PX now.”

MX also referred to FX placing tracking devices in her home:

“So wherever I go with PX, FX is monitoring our movements.”

However, when I asked for further details, it was actually just tile trackers on PX’s expensive things (mobile telephone, purse etc.) so that they could be found if PX misplaced them. They were only in MX’s home when PX was with her. For the reasons set out above, MX has not proved (to the requisite standard of the balance of probabilities) her allegation that FX was coercively controlling of either PX or MX.

[52]MX’s allegations that FX has hurt PX are all related to the washout procedure or similar hygiene assistance such as cutting PX’s pubic hair. MX was unclear during this hearing about whether she was alleging that FX had sexually abused PX, saying:

“I’m not alleging sexual abuse… PX said she didn’t like being touched by FX on her vagina and bottom during washouts, or being stared at. I’m not saying she’s been sexually abused, but I’m not not saying that. I’m just saying what PX told me… PX said it was painful during washouts, and I have no reason to disbelieve her. He used phosphate enemas despite knowing how distressed PX gets. He may have used it, causing her to lose consciousness or faint. [When asked why she connected the enema to the fainting, she replied] FX said the enema and fainting happened on the same day, but he didn’t connect them.”

There is no evidential basis for connecting the fainting with enemas or washouts, even taking MX’s account at its highest. It is unsurprising that at times PX has found the anal washout process at least uncomfortable if not painful, given what it involves (MX described in her statement for this hearing:

“PX has to insert a 6” catheter into her rectum”), but that does not mean that FX has acted inappropriately. It is a common procedure (in adults who struggle with managing their own hygiene) to cut pubic hair to prevent it becoming matted with faeces. At the last hearing MX even gave a vivid description of how she had done this herself for PX: “When she was having a shower [at my house], she called me, saying she had poo stuck in her vaginal hair. It was matted, she couldn’t get it out, so I helped her. I asked if it had happened before, and she said yes, FX had cut her vaginal hair with scissors and touched her there. That raised significant concerns with me.”

There is no suggestion in any of MX’s evidence (even if it were entirely reliable, which it may not be, given my findings on other matters) that FX does anything inappropriate or unnecessary when assisting PX with her self-care and hygiene, nor that he has hurt her intentionally or recklessly.

[53]MX also referred to 3 or 4 other people she asserted that PX had spoken to whilst in MX’s care in April 2025. MX asserted that PX had also made allegations to them. She was not specific about what allegations had been made to these third parties, except for saying:

“PX being left unattended, and the way FX does washouts”

. She refused to provide names for any of them, saying that they did not wish FX to know their names as they feared retribution (my summary of her submissions, not MX’s words). She said she had intended to obtain statements, but had not done so yet. I explained to MX that the Court cannot rely on the information she was providing, because I could not assess the reliability of the hearsay. I did not know whether PX had said anything to anyone else, because I only had MX’s word for it that PX spoke to anyone at all. I had no detail about what PX had said, or what might have led to her saying it. PX’s account may have been affected by leading questions. MX did say that the third parties had safeguarding training via their jobs:

“One is a teacher, one is a community development worker – I don’t know the official title or role, and one works with children.”

She confirmed none of them were police or social workers or another professional trained in undertaking child protection interviews. Such interviews are very difficult to do well, requiring extensive and detailed training about the kind of questions that should (and should not) be asked, and how to take verbatim notes of both questions and answers. We may never know what was said during those conversations, or how it may have impacted upon PX’s understanding and memory of what has happened to her, because the third parties will not have kept contemporaneous notes of their conversations with PX.

[54]Without these third parties’ identities, I cannot assess whether any of them might have a reason to lie, or exaggerate what was said, or lead PX to say a particular thing. They are all friends or acquaintances of MX so have only her account of the current family circumstances, and I do not know what she has told them about her own concerns. Without further detail about all of the above, I cannot place any reliance on what MX says PX said to these third parties.

[55]However, based on MX’s account, it is concerning that she has allowed or encouraged PX to be interviewed about such sensitive information by untrained non-professionals, even with the best intentions. There is a real risk of evidence being contaminated. If PX did have information to disclose, if she has been asked the wrong questions about it previously, it may affect the answers she gives subsequently when she is interviewed by professionals. Even if it has not influenced her, there will always be the worry that it did – that she is only saying things because the idea has been placed in her mind by MX or her conversations with these third parties – particularly as we will never know exactly what was said during those conversations.

[56]I have directed MX to file statements from the third parties. If they are content for their names to be known by those involved in these proceedings, they can be disclosed. If they wish to remain anonymous, the matter will have to be determined at a further hearing. They cannot be promised anonymity, but their identities will not be disclosed without them having the opportunity to make representations about the need for anonymity first.

[57]FX’s solicitor asserted in submissions that the two problems with MX that Professor Wilcox identified in his report from the Family Court proceedings, continue to date: MX continues to make allegations against FX that he poses a risk to PX, and PX is affected by MX’s behaviour, being infantilised, and regressing as she did during the time MX had sole care of her during the Family Court proceedings. MX said:

“I don’t see myself as being a risk. I think FX and the school are a risk. But because I’ve raised concerns, I’ve had the finger pointed at me. I was told I needed further training but I’ve had training and PX is supposed to be independent with her washouts. All this happened within days of me securing prescriptions and equipment to enable PX to spend time with me that she wants.”

MX complained that professionals treated her differently to FX and are biased against her, failing to recognise that that is the result of the findings from the Family Court proceedings that she poses a risk to PX whereas FX does not. MX continues to demonstrate no insight into the impact of her behaviour on PX.

[58]MX said that if she had unsupervised time with PX, she could be relied upon to return PX afterwards, because she always had done so. However, the last time MX kept PX, she did not return her until the Court ordered her to do so via an emergency hearing, during which MX opposed the return because she believed that PX was being abused by FX and potentially at the school as well. If MX really believes all the things she alleges, she would have every reason to refuse to return PX to FX and/or school again, and every reason to try to obtain further information or allegations from PX during the unsupervised contact. This means that unsupervised contact cannot take place, at least in the interim. This means that sadly direct contact cannot take place with MX over the half-term holidays, as there is no professional available to supervise it. FX proposed facetime calls twice during the week of the half-term holidays (arrangements agreed via the Family Wizard app, with his partner DP to be present to supervise, but not visible on screen).

Capacity:

[59]Nothing said during this hearing has changed my decision set out in my previous judgment that PX lacks the capacity to conduct these proceedings to make decisions regarding where she should live, and with whom/how she should spend time. I will not repeat the basis of that decision as it is set out in my previous judgment and has not changed in the intervening few weeks, given the nature and extent of her problems which are long-standing and not likely to fluctuate or improve. MX’s arguments regarding PX having capacity are based on her misunderstanding of professionals taking PX’s wishes into account, and do not undermine the professionals’ assessment of PX’s capacity. I therefore make an interim declaration, pursuant to s. 48 MCA 2005, that there is reason to believe that PX lacks capacity to: i) Conduct these proceedings; ii) make decisions as to where she should live; iii) make decisions as to what contact she should have with MX.

[60]These matters are matters to which its powers under the MCA 2005 extend, and it is in PX's best interests to make this order without delay.

Best Interests analysis:

[61]Having concluded that there is reason to believe that PX lacks capacity to make decisions about where to live and what contact she should have with MX, the next question is whether it is in her best interests to make any orders "without delay" (s.48(c) MCA 2005). What are the available options? The only realistic options available are for PX to spend the half-term holiday in FX’s care (as proposed by the LA and FX) or in MX’s care (as proposed by MX). Of these available options, which of these is in PX's best interests? I have given these question the most careful consideration, with reference to the factors set out in s.4 MCA 2005.

[62]MX has made a number of allegations. I have set out above the reasons why I have found none of them proved to the requisite standard of the balance of probabilities, or having any real evidential basis. This is also the conclusion reached by the social workers after they investigated the allegations each parent made against the other. I do find that the LA and FX have proved their allegations against MX, for the reasons set out above. I therefore agree with the LA and FX that MX poses a risk of emotional, and potentially physical, harm to PX if she were to spend time with her unsupervised. It is very sad that there is no professional available to supervise MX’s time with PX over the half-term holiday. But as it is necessary for MX’s time with PX to be properly supervised. Therefore when the risk that MX will try to influence PX against FX or her school during any unsupervised contact, is weighed against the benefit of them spending time together physically (as opposed to talking via video call), although there are obvious benefits to face to face contact (such as physical contact and comfort) the balance of harm during an interim period pending the contested final hearing in a few weeks’ time falls firmly on the side of protecting PX from the risk of emotional harm by requiring MX’s contact to be supervised professionally, and therefore by way of video call only during this half-term holiday. Hopefully more suitable arrangements can be made for future holidays if the need for supervision continues.

[63]In considering PX's best interests, I must apply the factors outlined within section 4 of the 2005 Act. This includes, so far as is reasonably ascertainable, PX's wishes and feelings (past and present), beliefs and values and any other factors that would impact on her decision, were she to have capacity to make it herself. In the past PX has made it clear to multiple professionals on different occasions over a long period of time that she wishes to spend the holidays (when she is not living at C1) with both parents. I have no doubt that sometimes she wants to spend longer with MX than she has been allowed in the past, because her time with MX has been limited by MX not having been fully trained in the new washout procedure. But that is not to say she has ever expressed discontent about spending time in FX’s care (except according to MX). Given the problems with relying on MX’s reporting, and that it goes against every other person involved with PX’s care, I am satisfied that PX enjoys spending time with FX and is happy in his care, and there is no satisfactory or reliable evidence that she is being sexually or physically or emotionally abused by him.

[64]Other factors in section 4 of the 2005 Act are consulting (if it is practicable and appropriate), the views of identified individuals, including anyone engaged in caring for PX or interested in her welfare. This obviously includes PX’s parents. FX’s views align entirely with the LA and all other professionals involved, such as the staff at C1. MX’s views are the only ones to run contrary to everyone else’s views, and I have set out above why I have reason not to follow MX’s views, as her concerns are not substantiated by any reliable evidence.

Conclusion:

[65]All factors set out in s. 4 of the MCA 2005 point to it being in PX’s welfare best interests to spend the holidays in FX’s care, and for her time with MX to be supervised by a professional. Where none is available, MX’s contact will necessarily be limited to video calls.

[66]The Court therefore grants an order in the terms requested by the Applicant LA, for the reasons above:(i) I am entirely satisfied on all that I have read that PX lacks capacity to conduct these proceedings, and lacks capacity to make a decision about her residence and contact arrangements, so I continue the previous interim declaration accordingly, and find that PX’s welfare requires me to make urgent decisions regarding her residence and contact arrangements.

(ii) For the reasons set out above, I am entirely satisfied that it is in PX’s best interests that she should spend the half-term holiday in FX’s care.

(iii) For the reasons set out above, I am entirely satisfied that it is in PX’s best interests that her face to face contact with MX should be supervised by a professional pending the final hearing, and where (for practical reasons) this is not possible, MX’s contact must be limited to video calls, not less than twice a week, monitored by FX’s partner DP.

[67]Although PX will no doubt be distressed at her contact with MX (which she enjoys) being reduced suddenly to video calls only, this is necessary for PX’s best interests, and is only for a week over this half-term holiday. I ask the LA to consider alternative options for future holidays. IT IS DECLARED THAT: (1). PX lacks capacity to litigate these proceedings and to make decisions about residence and contact arrangements. (2). It is in PX’s best interests to reside with FX in the holidays. (3). It is in PX’s best interests for her direct contact with MX to be supervised by a professional (such as the LA or the school staff or someone authorised by them), in accordance with the LA’s contact plan, which shall be kept under regular review by the Applicant LA.

[68]I wish to conclude by expressing my considerable gratitude to everyone involved in this case for their engagement and cooperation.

[69]That is my judgment. HHJ Arthur 3rd June 2025