“[JW] severely minimised her care needs in relation to her leg ulcers. Furthermore, she severely minimised any risk of living with her husband [SW]. This meant that she was unable to use and weigh the benefits of the different residential options in terms of the care and support they are able to provide her with. [JW] was adamant that she wanted to return to the bungalow and live with [SW]. Her mental capacity is impaired by borderline intellectual functioning. … [JW] severely minimised the concerns of the Local Authority about the negative impact of [SW]’s contact with her. [JW] had a limited understanding of the risks people unknown to her may pose to her. She was, therefore, unable to use or weigh the positives and negatives of contact with [SW] to be able to decide on the nature and degree of contact with him and unable to plan how to keep herself safe from people unknown to her. [JW]’s mental capacity is impaired by borderline intellectual functioning.”
“In this case, the central question of JW’s ability to make any relevant decision is, in my judgment, and obviously objectively, inexorably linked to her ability to exercise independent thought including, but obviously not limited to, the ability to weigh up any particular issue. If, as asserted here, upon apparently credible evidence, her very decision-making process is undermined by the coercive and controlling behaviour of SW, it seems to me inevitable and unarguable to the contrary, that the Court has to be satisfied, one way or another as to whether or not the alleged coercive and controlling behaviour actually exists … It cannot proceed on the basis of assumptions or concerns and it cannot treat the allegations as in some way part of the factual background without resolving them. In short, in what is likely to be a small minority of cases a fact-finding hearing is an essential pre-requisite to the property [sic.] determination of any particular capacity domain. This case, in my judgment, plainly falls within that small minority of cases.”
"For the purposes of this Act, 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."
“In my judgment my task is indeed two-fold. I must establish the basic facts or patterns of behaviour. I must also look at SW’s motivation and/or intention and judge the impact on JW in terms of harm, abuse and impact. I must take account of the totality of the evidence and only make basic factual findings or the more descriptive finding of coercion and control if satisfied on the balance of probabilities, the burden remaining firmly on the local authority throughout.”
“The schedule sets out in great detail the source material within the trial bundle and that speaks for itself. I need not repeat it. I will however briefly review the oral evidence and my impression of the witnesses.”
“[X] is a social worker. Her evidence was somewhat limited as much material was outside of her direct knowledge. That said, I found her helpful and clear. She found SW frequently negative in attitude and his behaviour could be relentless. Much of the written material produced by her included useful insights into the dynamic of the relationship and the dominance of SW. And of another: “[Y] is an occupational therapist. Her evidence was sympathetic and understanding and, in my judgment, she gave a balanced account. I accept her evidence as to SW’s intensity, his tendency to speak continuously as a form of control and his domineering attitude. I also accept her evidence that SW takes it upon himself to speak on JW’s behalf without giving her a chance. I find she tried to help SW, but his demanding and relentless behaviour was a barrier.”
“It was not easy for him to give evidence or to be the object of so much negative evidence about his behaviour. He was at times emotional. I am quite sure he is a complex personality. I do not underestimate the stress of giving evidence and I have no doubt it is difficult to be self-critical or to make what might be regarded as obvious concessions.”
“I found his evidence on the whole fairly superficial and at times evasive. He was reluctant to engage with the obviously credible evidence of the eye witnesses always seeking to minimise the seriousness of the situation and limited the potential for harm to JW. What was striking was that there were not really outright denials so much as justifications. He told me in terms at the conclusion of his evidence was that he was not saying witnesses had invented evidence but that his conduct had been misunderstood.”
“Although he articulates a primary concern for JW’s welfare, he is, in my judgment, essentially self-centred and prioritises his own needs. He does so, in my judgment, in part at least out of fear of being isolated and unsupported. He avoids personal responsibility and seeks to blame others. He uses a mixture of relentless criticism and some bullying and intimidation, although not physically. He is clearly manipulative. There were even examples of that in the hearing and his deferential and humble demeanour in my presence is atypical.”
“39. To the extent that he made specific denials of factual matters, where there is clear evidence of the sort I have identified in the preceding paragraphs, I prefer that to his denials and it follows that on such matters the local authority has satisfied me on the balance of probabilities that the factual accounts are made out.”
“41. In the six specific areas raised by the local authority, I find they have made out their case in five. The exception is in relation to financial control. SW undoubtedly made many financial decisions including on behalf of JW and he held the purse strings. That is culturally and socially often the case. I find it less easy to say that the division of responsibility in relation to finances is an example of one party taking control to the detriment of the other. There are worrying aspects undoubtedly in this case but on balance I am unable to find that the local authority has discharged the burden in respect of this relatively minor area of functioning. It must be kept under review, however, in the wider context of JW’s best interests. 42. More generally, this was and would remain a very one sided relationship if the domineering and controlling approach so often adopted by SW continued. I have no doubt at all that his behaviour over time represents a course of conduct that has harmed JW, physically and emotionally. Its impact is severe. It has had the immediate and potentially long lasting consequence of disempowering JW. Her autonomy has been severely compromised and her decision making abilities undermined. 43. Looking at the matter in terms of the first stage of the test, the evidence of fact and impact is clear and indeed, in my judgment, overwhelming.”
“48. In consequence, I am persuaded that the factual conduct described is properly categorised in part as coercive and controlling. It is not classic domestic abuse where the intent of the perpetrator is clear and single minded, namely to harm and control the victim. This case is much more complex and subtle. Some of SW’s motivation is distorted but not in itself malign. It is driven by his personality. However, a significant and conscious element is deliberate. On many occasions SW has chosen to prioritise his needs over JW’s. He is indifferent to the impact upon her. He is comfortable in an unequal relationship. To that extent his motivation is intentional and so it is proper to characterise this situation as having a significant abusive element.”
"22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law… 23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski[1999] 1 WLR 1360 . I confine myself to one short passage (at 1372): "
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them….The reasons for this approach are many. They include, i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. 115. It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."
"i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
“I would accept the submission that the judgment contains within it evidence that could have been gathered up and assembled to justify the findings contained in the judge's clarification at [89]. I would also accept that a judgment must be read as a whole and a judge's explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself. In my view, there is so little reasoning underpinning the judge's conclusions that we would have to do this in order to uphold her decision, and if we were to attempt it there is no knowing whether we would arrive at the same conclusion.”
“31. Miss Heaton submitted, quite rightly, that it is impossible for a judgment to set out all the nuances arising in the hearing or to deal with every aspect of the evidence that the judge has weighed in the balance in arriving at conclusions. This has been underlined by higher authority than me and I have made every allowance for it. However, it does have to be apparent from the judgment that the judge has taken into account all the central features that are relevant to the decision that he or she is making, both the positive and the negative. What that meant here was, in my view, that the judgment had to show first, which features of the evidence the judge considered to be significant in pointing towards there having been abuse, secondly that these features had been considered critically in the light of the features that undermined that hypothesis or pointed away from it, and thirdly, why it was, having weighed all of this up, the judge found the local authority’s case established. 32. It may well be that Judge Davies did go through this process in arriving at her conclusions but unfortunately it is not possible to be confident from the judgment that the evidence was weighed correctly, warts and all. I therefore concluded that the finding made by Judge Davies in relation to T would have to be overturned.”