A Local Authority v ZX [2026] EWCOP 3 (T3)

[2026] EWCOP 3 (T3)Case No COP14203804
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 January 2026
Before
MRS JUSTICE THEIS DBEVICE PRESIDENT OF THE COURT OF PROTECTION
Between
A Local AuthorityApplicantZX (By his litigation friend, the Official Solicitor)Respondent
Lucinda France-Hayhurst (instructed by the Local Authority Legal Services) for ApplicantFrancesca Gardner (instructed by Irwin Mitchell LLP) for RespondentHearing Hearing date: 4 December 2025Judgment date: 22 January 2026
Approved Judgment............................
[1]These proceedings are brought by the local authority by application dated 30 January 2024 seeking declarations/orders in relation to ZX, 19 years, that(i) ZX lacks the mental capacity to make decisions about conducting these proceedings, accommodation, care, contact with others, use of social media and internet, engaging in sexual relations and entering into a tenancy; and(ii) it is in ZX’s best interests to be deprived of his liberty as a result of his care and accommodation arrangements.[2]The proceedings have been heard in private due to the unusual facts and the risks of jigsaw identification.[3]ZX is represented by his litigation friend, the Official Solicitor. He has previously been assessed as meeting the criteria for disability/learning disability, given his IQ of 61 and problems with adaptive functioning. ZX also has a longstanding diagnosis of ADHD, conduct disorder and PTSD.[4]Following several months of litigation in relation to ZX’s capacity the declaration that ZX lacked capacity to engage in sexual relations made by HHJ Burrows on 3 May 2024 (A Local Authority v ZX [2024] EWCOP 30 (T2) was appealed. That appeal was allowed (Re ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462) and the matter remitted to this court for re-hearing.[5]Following my direction for the instruction of a clinical psychologist, Dr Rebecca Williams, to assess capacity she produced reports in May and June 2025.[6]As a result of the conclusions in Dr Williams’ reports at the hearing on 17 June 2025 the court made final declarations, agreed by the parties, pursuant to s 15 Mental Capacity Act 2005 (MCA 2005) that ZX lacks mental capacity to conduct these legal proceedings and to make decisions about(i) where to live;(ii) care and support;(iii) use of the internet and social media;(iv) managing his property and financial affairs;(v) entering/terminating a tenancy; and(vi) sharing personal information about himself, in particular, information about his parents, and details and information about proceedings. In relation to engaging in sexual relations, the court declared that ZX has the capacity to decide to engage in sexual relations.[7]Directions were made at the hearing on 17 June 2025 for further assessment in relation to ZX’s capacity to decide about having contact with others. This was considered necessary due to the lack of clarity on this issue in Dr Williams’ reports, ZX taking unusual risks with his own safety to meet people and in circumstances where ZX was due to commence a course later in the year which would provide further evidence regarding ZX’s capacity as he interacted with others. The local authority wanted to explore ZX’s ability to use and weigh the relevant information about his contact with others.[8]Unfortunately ZX was not able to start his course as planned. Dr Williams saw ZX in person in mid-October 2025, and via video link at the end of October 2025. Her second addendum report is dated 3 November 2025. Dr Williams gave oral evidence at the hearing on 4 December 2025.[9]As a result of that oral evidence the parties agreed that it was open to the court to conclude ZX lacked capacity to have contact with others. The parties wished to set out their submissions in writing and directions were made for that to be done, with a date for the hand down of this judgment. The court is extremely grateful for the comprehensive written submissions on behalf of both the local authority and the Official Solicitor.[10]I met with ZX at the hearing in December 2025. There is an agreed note of that meeting. ZX was able to tell me about his placement, the type of activities he undertakes and what he enjoys most since he moved placement. He described being settled in his placement and had secure relationships with the consistent team who supported him.

Relevant background

[11]This was summarised in the judgment of the Court of Appeal between [3] – [17] as follows:
“3. ZX was born in 2006 and is now 18 years old. His older brother, YX, and he were made the subject of care proceedings when ZX was three weeks old. There were concerns about the parents’ mental health, substance abuse difficulties, and neglect and physical injuries experienced by YX in their care. 4. In 2007, ZX and YX were adopted. 5. In 2011, aged 5, ZX was diagnosed with attention deficit hyperactivity disorder (“ADHD”). In 2012, the local authority again became involved with ZX and YX because of concerns about the brothers displaying harmful and violent sexual behaviours towards one another and towards animals. 6. The boys’ adoptive parents found it increasingly difficult to manage their behaviour. In 2019, ZX was accommodated by the local authority under s.20 of the Children Act 1989 in a specialised residential placement for young people who display sexually harmful behaviours. At the unit, he engaged in sexual behaviour with other young people. It was alleged that he committed rape and acts of sexual assault. In therapy, he disclosed details of his sexual conduct and his interest in violent and coercive sexual activity. 7. In 2021, YX was also moved to local authority accommodation. The local authority started further care proceedings and the boys were made subject to full care orders again. In 2022, the brothers separately alleged that they had been sexually abused by their adoptive parents. The adoptive parents were arrested but after an investigation the police decided to take no further action. ZX remained at the specialist residential unit and was made subject to a deprivation of liberty order under the inherent jurisdiction. His use of social media and the internet was monitored, an alarm was fitted to his door, and his contact with other young people was subjected to 1:1 supervision. He received extensive therapeutic support. ZX later told his therapist that, despite these measures, he had engaged in sexual activities with other boys in the placement and behaved in a sexualised way towards members of staff. 8. In 2022, a Youth Justice Report concerning ZX reached the following conclusion: “It is my assessment that the risk of serious harm to others is imminent should ZX create an opportunity, or be represented with an opportunity to offend, however, whilst the frequency and prevalence of ZX perpetrating harm has reduced this is simply due to the presence of such stringent external controls, which currently restrict the opportunity to offend and provide a high level of supervision. Concerns surrounding ZX’s immediate safety and well-being would severely increase should the current restrictions reduce and ZX is granted unsupervised access to the internet or the community.”
The police concluded, however, that they were unable to apply for a sexual risk order or a sexual harm prevention order in respect of ZX. 9.Despite these continuing concerns, a decision was taken in 2023, following a series of “High Risk Management Meetings”, to reduce the restrictions and allow ZX some unsupervised time in the community. After this, there were allegations that ZX touched his brother and others inappropriately when playing football. There were other occasions when he absconded. By December 2023, however, he was spending two hours on two evenings each week in the local town centre. 10.As ZX approached the age of 18, the professionals at the placement advised that he needed to remain there to complete further therapeutic work to reduce his risk of sexual harm. The need for a long-term plan for ZX in adulthood led the local authority in January 2024 to apply for permission to bring proceedings in the Court of Protection. Permission was granted and the Official Solicitor accepted an invitation to act as ZX’s litigation friend. By its application, the authority sought an order that ZX lacked capacity to make decisions as to residence, care, contact with others, access to social media and internet use, managing property and affairs, entering into a tenancy agreement, and engaging in sexual relations. The authority also sought an order authorising the continued deprivation of ZX’s liberty. 11. In preparation for the application to the Court of Protection, ZX was assessed by Dr Christopher Ince, a consultant psychiatrist who has been instructed in a number of similar cases in recent years. In his first report, dated 24 January 2024 and considered in more detail below, Dr Ince concluded that ZX lacked capacity to make decisions in all of the domains specified in the local authority’s application, save for capacity to engage in sexual relations. 12. Dr Ince was then asked some supplementary questions, prompted in part by a decision of Theis J, the Vice-President of the Court of Protection, in Re ZZ (Capacity) [2024] EWCOP 21 allowing an appeal against a declaration by HHJ Burrows that the subject of those proceedings had capacity to engage in sexual relations. When submitting the questions to Dr Ince, the parties included a document summarising the decision in Re ZZ. In a supplementary report, Dr Ince changed his opinion and concluded that ZX did not have capacity to engage in sexual relations. 13.Towards the end of April 2024, the local authority reimposed restrictions on ZX’s activities, including suspending his unsupervised time in the community, following two occasions when he had absconded from the placement, visiting the home of a former member of staff, and sending indecent images to a girl, aged 15, who he described as his girlfriend. 14.The question of capacity was considered at a hearing before Judge Burrows on 2 May 2024, a transcript of which has been prepared for this appeal. Before the hearing, the judge had a short meeting with ZX. In opening the case, Ms Lucinda France-Hayhurst for the local authority informed the court of a further incident that morning when ZX had been found wearing a necklace with the name of the 15-year-old girl, which he had refused to take off. Dr Ince gave oral evidence over several hours, after which the hearing was adjourned for submissions to be given the following day. Judgment was reserved and handed down on 6 June. The judge concluded that ZX lacked capacity to make decisions in all of the areas specified by the local authority, including engagement in sexual relations. By the order made following the hearing, the judge made declarations as to capacity in line with his judgment, declared that in so far as the arrangements for ZX’s care amounted to a deprivation of liberty they were a necessary and proportionate interference with his Article 5 and 8 rights, and made further interim orders and case management directions pending a final decision as to his future residence and care arrangements. 15.Following the hearing, the parties received a supplemental report from ZX’s treating psychologist, who had previously assessed his risk of sexual offending as high. She advised that the risk remained high if ZX were to progress to a community setting or to an environment with less monitoring and supervision. She also advised that ZX meets the criteria for intellectual disability or learning disorder. 16.On 16 July 2024, Theis J granted an extension of time for filing a notice of appeal. On 26 July, the Official Solicitor filed a notice seeking permission to appeal against the judge’s decision that ZX lacked capacity to engage in sexual relations. On 21 August, Theis J granted permission to appeal and allocated the appeal to be heard by this Court. At the appeal hearing, the Official Solicitor was represented by Ms Victoria Butler-Cole KC, leading Ms Francesca Gardner who had appeared before the judge, and the respondent local authority was represented by Mr Joseph O’Brien KC, leading Ms France-Hayhurst. 17.Meanwhile, the local authority reviewed the restrictions on ZX’s activities and reinstated the former arrangements of two periods of unsupervised time in the community each week and restored ZX’s use of his phone, subject to checks. At a further hearing on 18 September 2024, the judge extended the declarations as to capacity and deprivation of liberty and made further case management directions. To date, the local authority has not succeeded in securing an adult placement for ZX who remains living at the children’s residential unit where he has lived for the past five years.”[12]ZX moved to his current placement in early 2025. There have been a number of incidents involving ZX absconding from his placement or from the supervision of support workers whilst out in the community. As a result of three incidents of absconding ZX’s two hour unsupervised community time was suspended in late March 2025 for two weeks. This was to allow further discussions with ZX about working within the agreed plan around community time and to allow him to settle emotionally. These changes were authorised by the court order in mid-April 2025.[13]Following reinstating unsupervised community time, ZX went missing and was returned with the assistance of the police two days later. Unsupervised community time was suspended again, ZX went missing for a few hours but returned himself. It was re-instated in early May 2025 as ZX was determined by care staff to be engaging well. Since then the care staff have had to manage ZX’s plans to meet up with his brother and care staff concerns about the influence of his brother regarding online relationships. Care staff also reported concerns about ZX’s impulsive behaviour within the placement and his vulnerability regarding remaining in communication with care staff and residents from his former placement. Some messages included ZX and a former resident of his previous placement encouraging each other to show their genitals. The police were notified and have taken ZX’s phone.[14]The updating evidence from the allocated social worker sets out the detailed care and support available for ZX and how they are managing issues that arise, including regarding ZX’s contact with his brother.

Dr Williams’ evidence

[15]In her November report focussing on assessing ZX’s capacity to have contact with others Dr Williams sought to break down her conclusions into a number of sub-categories. In her written report she stated ZX lacked capacity to have contact with his brother, although considered this conclusion to be borderline and may change in the future. Dr Williams considered ZX had capacity to make decisions regarding online messaging contact with residents at his former placement, but did not reach a conclusion regarding contact with staff at his former placement. Dr Williams was unable to reach a firm conclusion regarding contact with people via social activities in the community. In her report Dr Williams considered it was not possible to make a blanket decision about whether ZX has capacity or not to make decisions about contact with others. She made a number of recommendations as to the steps that could be taken to increase capacity.[16]In her oral evidence Dr Williams said she had not intended to segment the decision to have contact with others into sub-categories, but rather sought to set out sub-headed examples of ZX’s inability or ability to make the relevant decision. She recognised she found it difficult to place these sub-headed examples into their correct categories. In particular, to disentangle ZX’s capacity to engage in sexual relations, contact with others and internet and social media. She recognised that in these categories much of the relevant information overlaps and that the combined symptoms of ZX’s ADHD, developmental trauma and learning difficulties impede ZX’s ability to use or weigh the information about risks/rewards in other areas of his life.[17]Dr Williams identified that for ZX a key driver and part of the relevant information is his desire to forge new relationships in person via online interaction. The evidence shows that ZX does not reflect in practice on what risks might emerge out of in person contact with casual acquaintances.[18]There were three recent examples that illustrated this feature since moving to his current placement. He met Y online then travelled with her some distance where he had no option but to sleep outside overnight. He messaged a younger resident from his previous placement asking that person to send indecent images that resulted in police action. Finally, striking up a relationship with a support worker from his former placement without being able to understand why this relationship concerned his social worker and Dr Williams.[19]In her oral evidence Dr Williams candidly accepted that when she re-read her most recent report and considered the updated evidence and the position statements filed by the parties, she could not identify evidence that ZX was able to use and weigh up a decision about having contact with others, any more than he was able to weigh up the decision about having contact with his brother.[20]Dr Williams also accepted that the question of online messaging should fall to be considered as part of contact with others. and there were more significant risks to use and weigh if the relevant information is viewed from that perspective.[21]In her oral evidence Dr Williams provided clarity about the causal nexus. In her opinion ZX’s inability to make the decision, which she accepted was a global inability to have contact with others, was caused not only by ZX’s traumatic history and desire for a relationship but also by his learning difficulty. Dr Williams said ‘his history has left a gap in his skills, but this is exacerbated by his learning difficulty….in the moment he is unable to use or weigh the information’.[22]Dr Williams considered any review of ZX’s capacity to have contact with others should take place in about two years.

Legal framework

[23]The key principles in assessing capacity have been set out in a number of cases (Warrington Borough Council v Y [2023 EWCOP 27 [22 – 34] Hayden J; Kings College NHA Foundation Trust v C&V [2015] EWCOP 80 Hayden J and WBC v Z and Anor [2016] EWCOP 4 Cobb J) and are summarised in A Local Authority v H [2023] EWCOP 4 as follows:a. An individual is presumed to have capacity pursuant to s 1(2) of the Mental Capacity Act 2005.b. The burden of proof lies with the person asserting a lack of capacity and the standard of proof is the balance of probabilities.c. The determination of the question capacity is always decision specific. All decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of ss 1 to 3 of the 2005 Act, which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the state to be embellished.d. 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 (Mental Capacity Act 2005 s 1(3).e. A person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise.f. The outcome of the decision made is not relevant to the question of whether the person taking the decision has capacity for the purposes of the Mental Capacity Act 2005.g. In determining the question of capacity, the court must apply the diagnostic and the functional elements of the capacity pursuant to ss 2 and 3 of the Mental Capacity Act 2005. Thus: a) There must be an impairment of, or a disturbance in the functioning of the mind or brain (the diagnostic test); and b) The impairment of, or disturbance in the functioning of the mind or brain must cause an inability to understand the relevant information, retain the relevant information, use or weigh the relevant information as part of the process of making the decision in question or to communicate the decision made.h. For a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the 'impairment of, or a disturbance in the functioning of, the mind or brain' required by s 2(1) of the Act.i. With respect to the diagnostic test, it does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary.j. With respect to the functional test, the question for the court is not whether the person's ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof.k. An inability to undertake any one of the four aspects of the decision-making process set out in s 3(1) of the 2005 Act will be sufficient for a finding of incapacity provided the inability is because of an impairment of, or a disturbance in the functioning of, the mind or brain. The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another.[24]In A Local Authority v JB [2021] UKSC 52 Lord Stephens set out at [66] – [79] that an assessment of capacity requires the court to address two questions:(1) First, whether the person is unable to make a decision in relation to a particular matter; and only if so(2) Second, whether that inability is caused by an impairment of or disturbance in the functioning of P’s mind/brain.[25]Paragraph 4.16 of the Code of Practice provides:
“Understanding information about the decision to be made It is important not to assess someone’s understanding before they have been given relevant information about a decision. Every effort must be made to provide information in a way that is most appropriate to help the person to understand. Quick or inadequate explanations are not acceptable unless the situation is urgent (see chapter 3 for some practical steps). Relevant information includes: • the nature of the decision • the reason why the decision is needed, and • the likely effects of deciding one way or another, or making no decision at all”
.

Submissions

[26]Both the local authority and the Official Solicitor submit, supported by the conclusions of Dr Williams in her written report and oral evidence, it is open to the court to conclude on the evidence that ZX is unable to use or weigh relevant information about decisions to have contact with others, even after ZX has received detailed training and education about these issues, including, in particular, relating to online grooming.[27]They submit there is much changing in ZX’s life and he benefits from the new rapport he has built up with professionals, in particular his allocated social worker. As these relationships develop and strengthen they will provide important scaffolding for ZX when making decisions about contact, in particular with his brother.

Discussion and decision

[28]When aspects of capacity are being considered by the court it is important the court has at the forefront of its considerations the presumption of capacity enshrined in s1(2) MCA, the need for careful analysis of the evidence to consider whether that presumption is rebutted, and that all practicable steps have been taken (s1(3) MCA).[29]ZX has been the subject of multiple assessments due to the complexity of his position. As Dr Williams outlined, this is as a result of ZX’s shocking and traumatic history. ZX suffered and witnessed extremely serious sexual and physical abuse from a very young age. The consequence of this history and years spent in the care of the local authority has resulted in ZX’s desire to form connections with others, at times to his detriment.[30]I agree with the Official Solicitor that throughout these proceedings, professionals and expert witnesses have found it difficult to untangle the consequences that ZX’s early life have had on his outlook and decision making, as set against the impact of his diagnoses. There are a large number of individuals who have suffered abuse, and as a consequence may have experienced life in the care of the local authority. Whilst such individuals may be vulnerable they do not fall within the jurisdiction of the Court of Protection unless there is evidence that they are unable to make decisions because of their impairment.[31]Dr Williams’ evidence confirms that her working diagnosis for ZX is that he has a language difficulty; language disorder; ADHD and developmental trauma. ZX does not meet the criteria for learning disability but has a learning difficulty that causes him to struggle with language, problem solving and other areas. He is cognitively impaired in terms of his reasoning. Her oral evidence, which I accept, was that ZX’s inability to use and weigh the relevant information in the moment such that he would be required to problem solve to navigate an unpredictable aspect of contact is caused by his learning difficulty. She acknowledged there may be other factors but the inability to problem solve is driven by his learning difficulty.[32]Dr Williams was frank in her oral evidence that on reflection her conclusions in her third report could have been more clearly expressed. She had assessed ZX’s ability to have contact with others generally and had used the different experiences ZX had had to inform her assessment. She confirmed she considered the assessment of ZX’s capacity to be complex and finely balanced. During her assessment she had found ZX to not be very forthcoming with information but was unable to say whether he had forgotten some information, or whether he was deliberately hiding information during the assessment process. In the end her evidence, which I accept, was that if the matter that ZX needs to make a decision about was his contact with others he would be unable to use and weigh the relevant information in the moment.[33]Dr Williams, rightly in my judgment, recognised that the complexity in the assessment process was whether ZX is able to use and weigh the relevant information ‘in the moment’ when making decisions about contact. Dr Williams did not consider ZX was able to use and weigh relevant information when making decisions about contact with his brother. I accept her evidence that ZX would struggle to problem solve in the moment and this was largely due to his learning difficulty. ZX was unable to identify any negative aspects to contact with his brother. The same analysis applied in relation to sexting and online communications which Dr Williams considered should be considered through the prism of contact. In that context she did not consider ZX would be able to use and weigh as a result of his desire to have friendships and intimacy and his learning difficulty.[34]ZX considers he has capacity regarding contact with others. This position perhaps illustrates the difficulties in this case. He, understandably, has a strong desire to form friendships but the evidence demonstrates that he is unable to use and weigh the relevant information due to his learning difficulty.[35]I accept Dr Williams’ evidence of the need to review the position in two years. ZX has been in his current placement for just under a year. Now is a critical time for ZX to make progress, to mature and progress in his social skills. In his previous placements he was living with peers with sexually inappropriate behaviours and he had few role models. The scaffolding is now in place in his new placement for him to be able to experience a period of stability, to have prosocial role models which together with social skills training, and guidance and opportunities for him to test such skills in real life.[36]ZX has allegedly sustained years of abuse. Therapeutic intervention is important. For ZX to engage in therapy he needs to feel safe, secure and stable. This is the first placement where he has a real opportunity to do that and be helped in developing the social skills which may result in him being willing to undertake the therapeutic intervention which is so critical for any sustainable changes to be maintained.[37]In the light of this conclusion the parties will need to consider the next steps in the proceedings and for the local authority to consider formulating a care plan in accordance with the guidance set out in A Local Authority v TZ (No 2) [2014] EWHC 973.