New Practice Directions now out

In advance of the COP Rule changes coming into force on 1 July, we have updated the legislative materials page of the Handbook website to give you the updated (or new) Practice Directions.   We will be providing updates to the book on the website pending further rules changes being made (hopefully) later this year and a second edition next year.

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New COP forms – samples now available

Samples of the new COP forms which will take effect on 1 July are now available here.

The annexes that will be required are as follows:

 Deputy, proposed deputy or other:
 Appointment of deputy for property and affairs COP1A
Property and affairs (where deputy not required) COP1A
Appointment of deputy for personal welfare COP1B
Personal welfare order (where deputy not required) COP1B
Application relating to a statutory will, codicil, gift(s), deed of variation or other settlement of property COP1C
Application relating to the appointment or discharge of a trustee COP1D and COP12
Application by existing deputy COP1E
Other applications COP24
 Enduring Powers of Attorney (EPA) or Lasting Powers of Attorney (LPA):
Question of validity or operation of an EPA/LPA COP1F
Application relating to a statutory will, codicil, gift(s), deed of variation or other settlement of property COP1C
Application relating to the appointment or discharge of a trustee COP1D and COP12
Application by existing attorney COP1E
Other applications COP24

We will provide links to the ‘live’ forms as soon as they are ready.

Re X – the Court of Appeal pronounces

Summary

The vexed question as to whether P needs to be a party to proceedings for authorisation of deprivation of liberty has now been answered, although not in the fashion that we might have expected.

In a detailed and very lengthy (45 page) judgment [2015] EWCA Civ 599, the Court of Appeal has held that it did not have jurisdiction to hear the appeals brought against the decisions in Re X Nos 1 and 2 [2014] EWCOP 25 and [2014] EWCOP 37.  In essence this was because the Court of Appeal considered that the President had not in fact made any decisions against which an appeal could lie.  All the members of the Court of Appeal identified, in different ways, the difficulties with the route that the President had adopted in terms of undertaking what was “in substance a consultative exercise intended to promote the development of new rules of procedure,” which was not something that the court was entitled to undertake (paragraph 146, per Moore-Bick LJ).

Importantly, however, all three of the members of the Court of Appeal made clear, in different ways, that the President’s conclusions (at least as regards Article 5) could not, in consequence, be considered authoritative (this is expressed most clearly by Gloster LJ at paragraph 127).

Further, and equally – if not more – importantly, all three members of the Court of Appeal made clear that those conclusions were flawed.   Whilst, strictly, these conclusions are obiter, they were very strongly expressed, Black LJ making clear that her 50 paragraphs of analysis on this point were firmly what she would have decided had the court had jurisdiction.   We therefore anticipate that very considerable weight would be placed upon them by any subsequent court considering (for instance) a challenge to the ‘Re X procedure.’

All three members of the Court of Appeal were clear that, at least as the Court of Protection is currently constituted, both fundamental principles of domestic law and the requirements of the ECHR demand that P be a party to proceedings for authorisation of deprivation of liberty:

The key paragraphs from each of the judgments are set out below.

Black LJ

1. “it is generally considered indispensable in this country for the person whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided. The President’s conclusion that it was unnecessary for this to be so in relation to an adult without capacity appears therefore to run counter to normal domestic practice. It might, therefore, be thought to require very firm foundations if it is to be regarded as acceptable” (paragraph 86);

2. “Article 5 is not, of course, drafted in terms which reflect our domestic procedure and practice and nor does the jurisprudence of the ECtHR speak in those terms. It is not surprising therefore that it is not said explicitly that a person whose liberty is the subject of proceedings must be a party to those proceedings. It is necessary to consider the substance of what is said in the Article and the decisions concerning it and to determine how the required guarantees can be delivered in the procedural framework of the domestic legal system” (paragraph 93);

3.  “What is essential is that the person concerned ‘should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation’. In so far as special procedural safeguards are required because the person is not fully capable of acting for himself, they are there to secure the right and must not impair the ‘very essence’ of it.” (paragraph 94);

4.  “I can accept that, in theory, P need not always be a party to the proceedings if his participation in them can reliably be secured by other means. The question is, however, whether this can be done and, more importantly, whether the streamlined procedure contemplated by the President could be sufficiently relied upon to achieve it. In considering this, it has to be borne in mind that the President was establishing a process which was to be universal. It would be translated into action by many who were expert and efficient but, inevitably, also by some who were lacking in time or expertise or judgment. […] I am not suggesting bad faith on the part of those involved in the process, merely acknowledging the pressures and realities of everyday practice” (paragraph 96);

5.  “The problem with the President’s scheme, in my view, is at least twofold. First, it is heavily dependent upon P conveying a wish to be joined in the proceedings or opposition to the arrangements proposed for him, or someone else who has his interests at heart taking these points on his behalf. Secondly, it depends entirely on the reliability and completeness of the information transmitted to the court by those charged with the task. In many cases, this will be the very person/organisation seeking authorisation for P to be deprived of his liberty and the possibility of a conflict of interest is clear” (paragraph 100);

6.  Especially given the limitations with the consultation process contained in Annex C to the Re X forms, and the challenges of consulting with a person of impaired capacity, “[i]t is not appropriate, in my view, for P’s participation in proceedings to turn in any way upon whether he wishes to participate or indeed upon whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slip ups in such a scheme. Article 5 requires a greater guarantee against arbitrariness” (paragraph 103).

7.  “I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party. The Schedule A1 procedure (with the initial authorisation conferred by the local authority but with provision for a challenge under section 21A) has been accepted as providing appropriate safeguards in relation to deprivation of liberty and I entirely accept that it could be extended to cover a wider category of case. Furthermore, I accept that it might be possible to take the best of that procedure and to devise a less complex process which will still protect those whose liberty is in the balance. I cannot agree with the President, however, that the streamlined scheme he devised provides the elements required for compliance with Article 5. I stress that I am only concerned, at present, with whether P must be a party to the deprivation of liberty proceedings. Given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case” (paragraph 104, emphasis added);

8.  Under the President’s scheme, “which amounts to placing an additional hurdle in the way of P participating in the proceedings – instead of being a party automatically, there is an additional process to be gone through before he is joined, namely the collection/provision of material to persuade the court that he wishes/needs to be joined… P therefore in a position which is the opposite of what the Strasbourg jurisprudence requires, namely that the essence of the Article 5 right must not be impaired and there might, in fact, need to be additional assistance provided to P to ensure that it is effective” (paragraph 107);

9. Even if the consequence were to be greater pressure on resources and delay, such were not material to a determination of whether there are adequate safeguards to satisfy Article 5. “For the reasons I have explained, had I been in a position to determine the issue in these proceedings, I would have held that in order that deprivations of liberty are reliably subjected to thorough scrutiny, and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings” (paragraph 108).

Gloster LJ

10.  “I am supported in this conclusion [that the President’s opinions are not authoritative] by the views of Lord Justice Moore-Bick and Lady Justice Black, with which I agree, that in any event the President’s conclusion – that a patient need not be made a party in order to ensure that the proceedings are properly constituted (even though he may be joined as a party at his request) – is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 127)

Moore-Bick LJ

11.  “In order to obtain a decision which binds a person of full age and sound mind it is necessary to make him a party to the proceedings and in the light of the approach adopted in Cheshire West, it is difficult to see why the same should not be true of a person who lacks capacity, despite the fact that he must act by a litigation friend, when his liberty is at stake” (paragraph 170);

12.  “The decision in Winterwerp v The Netherlands (1979) 2 E.H.R.R. 387 makes it clear that a person who lacks capacity must have access to a court and an effective opportunity to be heard, either in person or by means of representation. The fullest right to participation in proceedings is that which is enjoyed by the parties, but the streamlined procedure envisaged by the President contemplates that there will be cases in which a person lacking capacity will not be made a party because someone considers that it is unnecessary for that step to be taken. I agree with Black L.J. for the reasons she gives that a procedure under which such a person need not be made a party in order to ensure that the proceedings are properly to constituted (even though he may be joined as a party at his request) is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 171).

It is perhaps important to note that the Court of Appeal did not express any view upon the two other questions that were formally before it on the appeal, namely (1) whether in all cases an oral hearing is required; and (2) whether a litigation friend must act via a solicitor (unless they are themselves entitled to do so).     However, given the manner in which the Court of Appeal expressed themselves in relation to the President’s judgments, it can properly be said that the President’s conclusions in this regard must also be seen as the expression of opinion rather than authoritative decisions (indeed, strictly, extra-judicial opinion).

 Comment

The unusual saga that is Re X has reached a suitably unusual conclusion (as it is difficult to see how anyone could seek to take this further).

Quite where this leaves practitioners and the Court is, at present, not entirely clear.   However, it would appear very likely that the Re X procedure will have to be subject to an immediate overhaul so as to provide that P is joined in each case.   It may, however, be that this is short-lived because it might, potentially, be that other directions can be made under Rule 3A(2) (for instance the appointment of a representative or an accredited legal representative upon the creation of a panel of such representatives) who can secure P’s participation in such a way as to secure protection of their rights.   It should perhaps be noted that the draft of Rule 3A was, in fact, before the Court of Appeal, although no reference was made to it by any of the members of the court.

We suggest that this decision is likely:

1. To give an immediate impetus to development of the scheme for Accredited Legal Representatives so as to widen the pool of representation available where P is joined as a party;

2.  To add to the pressure to ensure that a suitable regime is put in place sooner rather than later that provides for the administrative authorisation of deprivation of liberty in settings outside hospitals and care homes.   The time-frame of 2017 for the Law Commission’s report is looking increasingly problematic in this regard, we would suggest.

We should perhaps emphasise three final points:

1.  no party to what (in fact was not) the appeal against (what in fact were not) the decisions of the President challenged his conclusions as to the evidential requirements that must be satisfied before a judge can authorise a deprivation of liberty. Nor did the Court of Appeal cast any doubt upon his conclusions that, for instance, there must be objective medical evidence that the individual is ‘of unsound mind.’ Given how robust they were in their conclusions as to the We would therefore suggest that it is clear that whatever procedure is enacted by the court (and in due course whatever replacement is proposed by the Law Commission) can properly proceed on the basis that the President properly identified the ‘irreducible matters’ that must be addressed in evidence to comply with Article 5(1)(e) ECHR.

2.  Linked to this, we would strongly advise that local authorities and CCGs who are responsible for care arrangements that give rise to deprivations of liberty outside hospitals and care homes do not delay in making applications until the Court of Protection has put in place a replacement for the Re X procedure.   This decision does not alter the obligation on such bodies to seek authorisation from the Court where such is necessary, nor does it alter the nature of the evidence that must be put before the Court – what it alters is what the Court must then do in order to ensure compliance with Article 5(1)(e) ECHR.

3.  Lastly practitioners must be alert to any ongoing welfare cases where P may not have been joined, or where P has been joined but no litigation friend has been appointed – perhaps for funding reasons – which involve P’s residence, where P’s living arrangements may satisfy the “acid test” in Cheshire West. In such cases there must be a question as to whether P has the ability to participate effectively (for a very recent example, see Bournemouth Borough Council v PS [2015] EWCOP 39).

Experts, litigants in person and compulsory examinations: a further shot across the bows

The Court of Appeal has delivered a highly critical judgment on the failure of the Family Court to comply with the law and FPRs on expert evidence: see Re C [2015] EWCA Civ 539.

The judgment makes important comments about:

– the control of expert evidence

– how litigants in person should receive a fair hearing and

– the basic principle that a capacitous adult cannot be compelled to submit to a medical examination.

Its relevance extends beyond the family sphere and should be borne in mind by those practicing in the COP.  Lord Justice Aitkens comments at paragraph 50 that:

The problem of unnecessary expert reports has not been confined to family cases. The result of a proliferation of unnecessary expert reports (in whatever type of case) is that courts are all too often swamped with materials that are either not relevant to the issues in the case or are not specifically focused on the relevant issues. Unnecessary expert reports cause delays and, inevitably, costs are increased. In family cases where public funding is often involved this had meant that taxpayers’ money has sometimes been wasted. Section 13 of the Children and Families Act 2014 and part 25 of the FPR now lay down firm statutory and procedural rules that must be applied in respect of expert evidence in family proceedings. It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously.

The case involved a dispute between two separated parents of a young child.  The mother was represented and the father, who had limited English and was supported by an interpreter.  The child was not represented but a Cafcass Family Court Advisor (FCA) was present.

The mother did not agree to the father having unsupervised contact and believed he had a personality disorder.

Counsel for the mother asked in the course of oral submissions for a psychological assessment of the father.  This was not supported by a written application as required by Part 25 of the Family Procedure Rules, although counsel offered to ensure such an application was made.  In fact no written application was made.

The FCA considered some of the mother’s comments about the father’s supervised contact to be unfair and was not persuaded of the need for a psychological assessment.

Lord Justice Ryder quoted the following exchange with concern:

Q “The mother is making an allegation that she believes she cannot agree to contact because she believes you may have a psychological problem that needs addressing”.


A “But that is wrong”.


Q “Well, that has yet to be proved. What I would like you to do, yes, it is to address the court as to why you think that is not necessary…………”.  

Ryder LJ noted the recommendations by the Judicial College as to how to ensure that litigants in person are treated fairly by the court:

13. The obligation was placed on the father to demonstrate that a report was unnecessary. That was simply wrong. In the subsequent exchanges between the parties and the legal advisor there is regrettably an inference that because the mother has made her allegations then without anything further, let alone any evidence, the father must justify his position. There is no reference to any evidence by anyone and no consideration in that context of a proper and fair process.

14. […] The practice that is recommended is that litigants in person are sworn at the outset of the hearing so that their representations can be used as evidence. They should each be asked to set out their case (preferably without interruption and in a fixed time window) and they should be encouraged by the court to answer any relevant propositions put by the other party. The court should identify the key issues for them and put the same issues to each of them at the beginning or end of the statements they are invited to make.

He suggested that the time may have come for this process to be formalised into practice guidance.

The court’s written reasons were criticised for being nothing more than a recital of the mother’s case without analysis and did not address why the expert evidence was “necessary to assist the court to resolve the proceedings justly” (s 13(6) Children and Families Ac 2014).

Instead the whole statutory scheme and procedural scheme had simply been ignored.   There had furthermore been an assumption that the Legal Aid Agency would meet the mother’s costs.

Ryder LJ commented

It should by now be obvious that on any reading of the process undertaken by the family court there was no compliance with the statutory scheme and the procedural code. That had the effect of putting a weapon into the hand of the mother without good reason. The father was placed under an obligation to do something that was not reasoned on the evidence and in respect of which, if he failed to comply, adverse inferences could be drawn which could affect the welfare determination. That was not a fair process. Only if the evidence justifies the necessity should permission be given to adduce expert evidence. Only in that circumstance should a party be at risk of a negative inference being drawn from a failure to comply. It is good practice to include the risk of a negative inference being drawn from non-compliance as a recital to an order giving permission.

35.  The order made by the magistrates also fell into error in two other respects a) in the way in which it was worded so as to direct the father to undertake what was a medical assessment and b) in the manner in which the costs of the expert were to be provided for. I can take the first error shortly. It is an elementary principle that a competent adult cannot be ordered to have a medical procedure. A psychological assessment of the kind anticipated by the direction made in this case is a medical procedure. If psychological expert evidence is necessary and, as is likely if it is going to have any weight, it involves one or more of the adults or children in the family, the direction should be that the parties concerned ‘have permission to instruct ….. etc’. That should be accompanied by a warning explained to the parties in court about the negative inferences that the court can draw if a party fails to co-operate or comply. That warning should be included in the record that forms part of the court’s order i.e. as a recital.

36.  The costs of the expert were expressed to be apportioned equally between the parties with the expectation that the mother’s costs would be provided for by the Legal Aid Agency (LAA). No attempt was made to ascertain father’s financial position with the consequence that his ability to pay was unknown. One must also observe that because part 25 was not complied with the court did not know whether the report would cost £4,000 or £10,000. One might think that was a matter of some importance. Likewise, it was an unwarranted assumption that the LAA would pay half the costs. There was no indication from them by way of prior authority or otherwise to that effect and the reasons given by the magistrates came nowhere near that which would ordinarily be required to satisfy their guidance (not least because neither part 25 of the Rules nor the statutory criteria in section 13 had been complied with).

Ryder LJ said that the magistrates’ order could not stand and noted that the circuit judge’s decision on appeal had merely considered the matter from the point of view of the magistrates and had been a superficial approach to an important question of procedural justice.  It also could not stand.  The appeal was allowed and the matter remitted to the Family Division Liason Judge.

Comment

Although the test in the Court of Protection Rules (COPR 121) is for expert evidence to be limited to that which is reasonably required to resolve the proceedings it has been clear for some time that this provision is on borrowed time and the likelihood is that a similar test to that set out in s13 CFA 2014 will be adopted.

In the meantime the comments about expert evidence here are entirely consistent with those of the Court of Appeal in Re MN [2015] EWCA Civ 411.

The reference to the advice of the Judicial College regarding litigants in person is useful and we agree with his Lordship that formal practice guidance on this issue would be of benefit.

Lastly practitioners in the COP frequently have to grapple with the difficult question of parties other than P whose conduct may suggest they that they have an undiagnosed disorder or may lack litigation capacity.  This case is a firm reminder that a capacitous adult cannot be compelled to have a medical examination, but suggests that a recital should warn of the possibility of an inference being drawn if a party does not co-operate.

Stress-testing Schedule 3: cross-border placements and the Court of Protection

In Re PA, PB and PC [2015] EWCOP 38, Baker J has conducted a detailed analysis of the jurisdiction of the Court of Protection to recognise and enforce foreign protective measures under Schedule 3 to the MCA 2005.    That Schedule represents the implementation in English law of obligations contained within the 2000 Hague Convention on the International Protection of Adults (‘the Convention’) ((which the United Kingdom has ratified in respect of Scotland, but not England).

The background concerns three young Irish individuals with complex mental health needs, all of whom were considered by the Irish Health Services Executive and the Irish High Court to require treatment in England because suitable treatment was not available in the Republic of Ireland.    The Irish High Court made orders under its inherent jurisdiction in relation to each of the individuals providing for their detention, care and treatment at facilities run by St Andrew’s Healthcare.   Whilst each of the individuals were, in principle, detainable under the provisions of the MHA 1983, the Irish High Court considered in each case that they wished to retain jurisdiction over the individuals so as to be able to ensure that the key decisions in relation the care planning for ‘its’ citizens could be made in Ireland, rather than in England.

All three individuals were initially placed in England under arrangements made under Council Regulation 2201/2003 (‘Brussels IIR’), which (inter alia) provides a mechanism for cross-border placements in relation to children (as to which see our comment on the case of HSE Ireland v SF [2012] EWHC 1640 (Fam)).    When they turned 18, however, this mechanism ceased to be effective, and the HSE therefore sought recognition and enforcement of further Irish High Court orders under the provisions of Schedule 3 to the MCA 2005.     Such orders have been sought and made previously, including in the reported case of Re M [2011] EWHC 3590 (COP), but never on a contested basis.    Indeed, in PC’s case, the Court of Protection had already recognised and declared enforceable the initial relevant Irish order in December 2012, and recognised and declared enforceable an order providing for his transfer from one facility run by St Andrew’s to another in early 2015.

Because the cases of PA and PB raised very similar issues (and it was recognised that the same issues of principle were engaged in PC’s case), Baker J listed all three cases to be considered at the same time.   The Official Solicitor acted as Advocate to the Court in all three cases and PA and PB were represented (directly) by solicitors and Counsel (PC was neither represented nor present).   The ‘stress-testing’ that Schedule 3 to the MCA 2005 underwent in consequence was considerable.

In a detailed judgment, Baker J made a number of key findings/observations in relation to Schedule 3, set out in the paragraphs that follow (nb, these re-order slightly the paragraphs of the judgment so as to move from the general to the specific).

Schedule 3 implements, as a matter of domestic law, obligations in respect of the recognition, enforcement and implementation of “protective measures” imposed by a foreign Court regardless of whether that Court is located in a Convention country (paragraph 39).

In consequence, it is not permissible to apply one rule for Convention states and another for non-Convention states.  In other words, the Courts of England and Wales should note automatically adopt a more cautious approach when asked to recognise and enforce an order of a non-Convention state. Each case will turn on its own facts, to which the Court of Protection must apply the provisions of the Schedule, in particular the provisions as to recognition in paragraph 19 including the grounds on which recognition may be refused. Plainly the Courts of England and Wales will have proper regard to the general principles of comity in all cases, although a greater degree of caution may be required when considering orders made by certain countries (paragraph 39).

There is an important difference between the persons who fall within the general jurisdiction of the Court of Protection under the MCA and those in respect of whom protective measures taken by a foreign Court may be recognised and enforced by the Court.   The Court of Protection’s general jurisdiction exists in respect of persons who lack capacity within the meaning of s.2(1) MCA 2005; the jurisdiction of the Court of Protection under Schedule 3 arises in relation to ‘adults’ – defined for those purposes in paragraph 4(1) as a person over 16 who, as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests (and who is not subject to either the 1996 Hague Child Protection Convention or Brussels IIR).   The scheme of the Convention, reflected in the Schedule, is to focus on the factual description of the adult rather than any legal test as to capacity.   In each case, the Court must look at the order and judgment of the foreign Court – and if it thinks it necessary to do so, and insofar as it is permissible to do so under paragraph 24, the evidence before the foreign Court – to establish whether the foreign Court has made a finding which is binding or, if not, whether the individual comes within the meaning of “adult” under paragraph 4(1) of Schedule 3 (paragraphs 43-4).

The scheme of the Convention which underpins Schedule 3 is to facilitate the recognition and enforcement of protective measures taken by foreign Courts save in the circumstances set out in paragraphs 19(3) and (4). The measure “is to be recognised” if taken on the grounds that the individual was habitually resident in the country where the order containing the measure was made. The grounds on which a measure may be challenged may be procedural (paragraph 19(3) or substantive (paragraph 19 (4)). By reason of paragraph 21, however, provides that for the purposes of paragraphs 19 and 20 any finding of fact relied on when the measure was taken is conclusive, there is no power to challenge the finding made in the foreign Court that the individual is habitually resident in that country.  Accordingly, a finding of a foreign Court that the individual concerned was habitually resident in that country cannot be challenged in any process to recognise or enforce a measure in this country, although the process by which the measure was ordered may be challenged (for example, if the individual was not given an opportunity to be heard) and the measure itself may be challenged (for example, if inconsistent with a mandatory provision of law of this country) (paragraph 52).

Paragraph 19(3) of Schedule 3 gives the Court a discretionary power to refuse to recognise a protective measure if certain procedural safeguards are not met. It is plain from the way in which Schedule 3 paragraph 19(3) is drafted that the Court only has a discretion to decline to recognise a foreign order if it thinks that the case in which the measure was taken was not urgent and the adult was not given the opportunity to be heard and that omission amounted to a breach of natural justice (‘thinks’ for these purposes meaning ‘concludes on the balance of probabilities) (paragraph 55).

Paragraph 19(4) of Schedule 3 gives the Court a further discretionary power to decline to recognise a measure in a foreign order in certain circumstances spelt out in the sub-paragraph. In contrast to sub-paragraph (3), these grounds upon which an application for recognition may be refused are separate rather than cumulative. Thus, the Court may refuse recognition if it thinks that (a) recognition would be manifestly contrary to public policy; or (b) the measure would be inconsistent with a mandatory provision of the law of England and Wales; or (c) the measure is inconsistent with one subsequently taken or recognised, in England and Wales in relation to the adult.   As Mostyn J had identified in Re M 19(4) (a) and (b) appear to be two sides of the same coin (paragraph 62).

By including Schedule 3 in the MCA, Parliament authorised a system of recognition and enforcement of foreign orders notwithstanding the fact that the approach of the foreign courts and laws to these issues may be different to that of the domestic court. These differences may extend not only to the way in which the individual is treated but also to questions of jurisprudence and capacity. Thus the fact that there are provisions within the Act that appear to conflict with the laws and procedures of the foreign state should not by itself lead to a refusal to recognise or enforce the foreign order. Given that Parliament has included s. 63 and Schedule 3 within the MCA, clearly intending to facilitate recognition and enforcement in such circumstances, it cannot be the case that those other provisions within the Act that seemingly conflict with the laws and procedures of the foreign state are mandatory provisions of the laws of England and Wales so as to justify the English Court refusing to recognise the foreign order on grounds of such inconsistency. In such circumstances, it is only where the Court concludes that recognition of the foreign measure would be manifestly contrary to public policy that the discretionary ground to refuse recognition will arise. Furthermore, in conducting the public policy review, the Court must always bear in mind, in the words of Munby LJ in Re L (A Child) (Recognition of Foreign Order) [2012] EWCA Civ 1157 that “the test is stringent, the bar is … set high.” (paragraph 91).

There is likely to be a wide variety in the decisions made under foreign laws that are put forward for recognition under Schedule 3.  Inevitably there may be concerns about some of the foreign jurisdictions from which orders might come. But as the Ministry of Justice observed in a letter sent to the Court, taking account of such concerns is surely the purpose of the public policy review. Although no wide ranging review as to the merits of the foreign measure is either necessary or appropriate, a limited review will always be required as indicated by the European Court in Pellegrini v Italy (2002) EHRR 2. That will be sufficient to identify any cases where the content and form of the foreign measure, and the processes by which it was taken, are objectionable. The circumstances in which Schedule 3 is likely to be invoked, and the number of countries whose orders are presented for recognition, are likely to be limited. If applications were to be made from countries such as North Korea (which are unlikely, at least in the foreseeable future), the public policy review would surely lead swiftly to identifying grounds on which recognition would be refused. It is much more likely that the orders presented for recognition will be those of foreign countries whose legal systems, laws and procedures are closely aligned to our own. Concerns of this nature can be addressed by admitting evidence of the process by which the foreign protective measures were made and general evidence relating to the legal system of the state that made the order (paragraph 92).

The Court of Protection (being bound to act compatibly with the ECHR as a mandatory provision of the law of England and Wales by its incorporation into the HRA) should on any application for recognition and enforcement conduct a limited review to satisfy itself that foreign orders presented for recognition and enforcement comply with the ECHR.  In so doing, the Court should strive to achieve a combined and harmonious application of the provisions of the ECHR and the Convention (paragraph 96).

By including Schedule 3 in the MCA, Parliament must be assumed to have permitted orders to be recognised that did not comply with other laws and procedures under the statute. As the definition of “adult” in Schedule 3 paragraph 4 plainly extends to persons who may not be incapacitated within the meaning of s.2 MCA 2005, it follows that the Court will be obliged to recognise and enforce orders of a foreign court in terms that could not be included in an order made under the domestic jurisdiction under the MCA. This is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy.  Baker J agreed with and endorsed Hedley J’s conclusion in Re MN that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of the individual so that those paragraphs are not disapplied by paragraph 19(4)(b) and section 1(5) of the Act. Thus it follows that the Court will be obliged to recognise and enforce a measure in a foreign court order even where applying a best interests test it would not be included in an order made under the domestic jurisdiction under the MCA. Again, however, this is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy (paragraph 98).

It would not be open to the Court of Protection to refuse recognition and enforcement of a foreign order simply because the individual may have the relevant decision-making capacity and objects to the order being recognised and enforced.  Such an approach would undermine the whole purpose of Schedule 3 (paragraph 101).

Specifically in the context of a foreign order compulsorily placing an individual in a psychiatric hospital in England and Wales for treatment:

  1. The limited review required should encompass the Court being satisfied that (1) the Winterwerp criteria are met and (2) that the individual’s right to challenge the detention under Article 5(4) is effective (i.e. that they have a right to take proceedings to challenge the detention and the right to regular reviews thereafter) (paragraph 96);
  2. (Agreeing with Mostyn J in Re M), an order recognising and enforcing a foreign measure under Schedule 3 is not a welfare order as defined in section 16A(4)(b). The rules as to ineligibility in section 16A therefore do not apply. This means that the Court will be obliged to recognise and enforce orders of a foreign court depriving an individual of his liberty in circumstances in which it would not able to do so under the domestic jurisdiction under the MCA on the grounds that the individual is being treated or is treatable under the MHA as defined in Schedule 1A of the MCA. Once again, however, this is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy (paragraph 98);
  3. The “conditions of implementation” provided for in paragraph 12 of Schedule 3 (which are governed by English law), are that the requirements of the ECHR are met, in particular the Winterwerp criteria and reviews of sufficient regularity to satisfy Article 5(4) (paragraph 102);
  4. Most such orders presented for recognition are likely to be of short duration, and/or in respect of persons whose capacity may fluctuate, and/or who are in receipt of a progressive form of treatment. As a result, in such cases there is likely to be repeated requests to scrutinise a succession of orders. Recognition and enforcement is likely to require close co-operation, not only between the medical and social care authorities of the two countries, but also between the Courts and legal systems. The Convention provides a mechanism using the Central Authorities but, pending ratification of the Convention, there may well be the need for direct communication between judges of the two jurisdictions (paragraph 93).

On the facts of the cases before him, Baker J considered that (1) each of the individuals: was an “adult” within the meaning of Schedule 3; (2) that each was habitually resident in the Republic of Ireland; (3) in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); (4)  that in each case the individual satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; (4) that the orders of the Irish Court demonstrate that each will be afforded a regular right of review of his or her detention so as to comply with the ongoing requirements of Article 5(4); (5) that as a result recognising and enforcing the orders will not contravene the ECHR; (6) that the measures in each case are not inconsistent with any other mandatory provision of the law of England and Wales; and (7) that the measures cannot be said to be manifestly contrary to public policy.  Baker J therefore made orders providing that protective measures in the Irish orders were to be recognised in England and Wales and enforced in this jurisdiction.

Baker J also used the opportunity:

  1. To express the hope that the Court of Protection Rules will in due course be amended to incorporate comprehensive rules to support Schedule 3 as soon as possible, including rules as to allocation of applications under the Schedule.
  2. To provide that, pending the introduction of such rules, any application under Schedule 3 at this stage should be listed for a full High Court Judge in the first instance, and thereafter, all further hearings in connection with that application, and any further applications under the Schedule in respect of the same individual, should be listed before the same judge (if available) unless expressly released by him or her to another judge.
  3. To note that one issue that requires clarification by the ad hoc Rules Committee is whether a litigation friend should be appointed in cases such as those before him.   Baker J expressed the preliminary view that a litigation friend should be appointed to act for individuals who are the subject of applications for recognition and enforcement under Schedule 3 (unless, of course, that individual has capacity to conduct proceedings applying the provisions of the MCA).

Comment

Although these cases are unusual, the analysis by Baker J of Schedule 3 has ramifications going far beyond the context of compulsory placements for psychiatric treatment.   Of particular importance for practitioners are the following points.

First, the confirmation that – as in cases involving children under Brussels and Hague instruments – when we come to consider cross-border cases involving recognition and enforcement of measures taken in relation to adults with impairments, the English courts are operating in a very different sphere to purely domestic cases.    In the context of recognition and enforcement, the Court of Protection:

  1. Will not be applying the test of capacity contained in s.2(1) MCA 2005 (save in considering whether the adult has litigation capacity); and
  2.  Will not be applying the best interests test contained in s.1(5) and s.4 MCA 2005 (save in relation to implementation of the measures). In other words, the Court of Protection, and those appearing before it, has mentally to undertake a very significant gear shift in such cases.   Such a gear shift is one that many family practitioners and judges still find difficult in relation to cross-border cases involving children; it will perhaps be even more difficult in relation to adults where we are still taking baby steps in the identification of common themes and common practices across borders (and where we have yet in England and Wales to ratify the Convention…).

Second, the confirmation that the ability of the Court of Protection to refuse to recognise and declare enforceable foreign protective measures is very limited.

Third, the confirmation that, for purposes of applications for recognition and enforcement, the Court of Protection is effectively bound by the decisions of the foreign court as to the habitual residence of the individual.

Finally, the confirmation that, by passing Schedule 3 in the form that it did, Parliament opened the door to applications for recognition and enforcement to be made from any country in the world, with no ‘filter’ specific to non-Convention countries (save for the limited filter in relation to cross-border placements between Convention countries in paragraphs 19(4) and 26 which will only become relevant when the Convention in ratified in respect of England and Wales).

Cross-border matters are now part of the daily reality of very many practitioners (not least because, for these purposes, Scotland is a foreign country…).    Cases with a cross-border element will, we predict, come before the Court of Protection with ever more frequency.   And, in due course, I anticipate that much the same will be said in relation to the Convention and to such cases as has been said by Sir James Munby P in relation to the earlier Hague Conventions applicable to children and their European counterparts:

They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.Re E (A Child) [2014] EWHC 6 (Fam)

All this, of course, suggests that everyone should:

  1. Rush out and purchase The International Protection of Adults, the only work which seeks to map out both the Convention and the frameworks for decision-making in relation to those with impairments in core jurisdictions around the world; and
  2. Identify to my co-editors and I any jurisdictions which should be included and volunteer to produce the necessary information for a chapter to be included in the next edition.