10/11/2025
Introduction
On 28 October 2025, Mrs Justice Lieven handed down judgment in Nottinghamshire County Council v SV v Anor [2025] EWCOP 37 (T3). This followed a hearing that took place on 6 and 7 October 2025, initially intended to be a fact finding hearing.
These welfare proceedings concerned SV, a 63 year old man with a diagnosis of mild learning disability. SV had been married to MB, a 57 year old man, since 2016 and appeared to have been in an intimate relationship with him since 2013. SV was the first respondent by his litigation friend, the Official Solicitor, and MB was the second respondent.
The contentious issue which led to the decision to hold a fact finding hearing was the relationship between SV and MB. From 2014 onwards various safeguarding concerns were raised regarding SV and MB’s conduct towards him. Nottinghamshire County Council alleged that MB had very seriously assaulted SV on at least two occasions, in 2019 and 2023, and had been coercively controlling of him throughout their relationship.
Judgment on fact finding
In her judgment, Mrs Justice Lieven concluded that it was neither necessary nor proportionate for a fact finding exercise to take place. She noted that the two matters for determination were (1) where should SV live, and the care and support he receives and (2) what contact should he have with MB.
The critical point in determining these matters was SV’s wishes and feelings. SV was clear about his wish to remain at Option 4, the supported living placement he had been residing in for the past few months, and so Mrs Justice Lieven determined: “…it is inconceivable, quite apart from the safeguarding issues, that any Court would order him to leave Option 4 and live with MB".
Mrs Justice Lieven also reiterated the importance of considering the interference in MB and SV’s Article 8 ECHR rights (the right to family life), as a married couple. It was noted that any order to prevent contact: “…would be a highly intrusive order where the Court would have to consider justification very carefully.”
Given SV’s wishes to at least try some contact with MB (although it was accepted these wishes were limited and very cautious), Mrs Justice Lieven’s view was that it was in his best interests to test out some limited contact: “So long as this can be facilitated in a way that gives SV the time and space to process the experience and then be in a position to express his wishes and feelings…”.
The other elements considered in determining that a fact finding hearing was not necessary were:
- that a fact finding hearing would take two more days of the very limited time available for Court of Protection hearings at Tier 2 level; and
- the disproportionate cost in public funds.
Background
In May 2019 and April 2023, SV was found at his home with stab wounds. On both occasions, MB was arrested on suspicion of grievous bodily harm (“GBH”) and SV gave differing accounts as to what happened. On both occasions, SV did not support any further investigation and the Police determined to take No Further Action.
In June 2023, SV was discharged from the hospital to a care home placement and in July 2023, Court of Protection proceedings were commenced by Nottinghamshire County Council. We acted for Nottingham County Council in these Court of Protection proceedings.
Limited, supervised, letter and telephone contact took place between SV and MB from May – July 2024.
In July, August and September 2024, SV made allegations to various professionals that MB had hit, stabbed and raped him – causing Nottinghamshire County Council to cease contact between SV and MB.
As outlined above, Mrs Justice Lieven placed great weight on SV’s wishes and feelings. The evidence regarding SV’s wishes and feelings was broadly consistent across visits from his legal representative, social worker and from a judicial visit with Mrs Justice Lieven. SV was clear that he was happy and wished to remain at Option 4, the supported living placement he had moved into from the care home in July 2025.
His feelings around contact with MB were less clear and required prompting, but it seemed he did want to see MB (albeit in a limited and controlled manner, and not living with him). SV used phrases such as “I wouldn’t mind seeing him again one day” and that he could “give him [MB] a ring now and again”.
This was in contrast to SV’s expressed wishes and feelings in respect of his ex-wife and daughters, who he had consistently, without prompting, said he wanted contact with.
Hearing on 6 and 7 October 2025
One week prior to the hearing, an intermediary report was filed in respect of MB. The intermediary assessment was conducted with a view to providing an intermediary service to facilitate MB’s meaningful participation in the proceedings, on the background of him having some learning difficulties. The report recommended that an intermediary was necessary to ensure his effective participation and Mrs Justice Lieven ordered that an intermediary be provided.
On the morning of the fact finding hearing, MB applied for an adjournment as no intermediary was available that day. This was due to delays with the Court approving the need for an intermediary and a requirement from Communicourt, the provider of the intermediaries, to have a form signed by the Court.
Nottinghamshire County Council supported MB’s application for an adjournment. Mrs Justice Lieven decided that it was necessary to adjourn the fact finding element of the hearing, given the potentially very serious consequences for MB if certain facts were found.
Mrs Justice Lieven then explored with the parties whether a fact finding hearing was really necessary – noting that the issues in the case were welfare decisions about where SV lives, the care and support he receives and what contact he has with MB.
None of the parties continued to advance that a fact finding hearing was necessary and the time was used constructively with Mrs Justice Lieven undertaking a judicial visit to SV and the parties agreeing a detailed Contact Plan between SV and MB.
Conclusion
This case emphasised the importance of putting P’s wishes and feelings at the centre of decision-making, notwithstanding a background of very serious and violent allegations, providing that risks can safely be mitigated. As highlighted above, this case considered allegations of the most serious kind – rape, coercive control and stabbing. However, Mrs Justice Lieven determined: “If contact can be managed safely, so that SV’s physical, psychological and emotional well-being can be protected, and SV wishes for some contact, then in my view the correct approach is to seek to facilitate such safe contact.”
The Contact Plan produced was therefore very gradual, starting from indirect contact (cards, letters or voice notes) and progressing only to supervised contact (and providing that is what SV wishes). The Contact Plan also included clear expectations upon MB about his behaviour to SV and to the professionals who work with SV and who will supervise contact. There were also a number of topics which MB agreed not to discuss with SV.
The judgment also provides a useful summary of the case law regarding fact finding hearings in the Court of Protection, which Mrs Justice Lieven summarised as:
- Facts which are sought to be found must have a direct impact on the welfare decisions that need to be made in respect of P;
- Fact finding must be necessary for the determination of those welfare decisions;
- The fact finding exercise must be proportionate to the issues that need to be determined; and
- In determining proportionality, the likely cost to public funds, the time taken and the impact of delay on P are all relevant considerations.
If you’d like to discuss these issues or have any queries, please do get in touch with Julia Jones.
