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The costs consequences of setting a juggernaut in motion

The consequences of a failure properly to comply with the provisions of the MCA in the safeguarding context have been highlighted in Milton Keynes Council v RR & Ors (Costs Judgment), the sequel to a singularly unfortunate case described in the Thirty Nine Essex Street’s Mental Capacity Law Newsletter here, involving the unlawful removal of an elderly lady from her home and a failure timeously to investigate and (ultimately) to withdraw allegations against her son and her son’s partner.

In departing from the general rules applicable to costs in personal welfare proceedings and awarding the son the entirety of his costs, District Judge Mort did not mince his words. He considered initial failures to investigate safeguarding alerts to be “deplorable,” the process of removal and the absence of any lawful basis for the same to be “[as] lamentable and inexcusable set of circumstances [as can be imagined],” and was critical of the failure of the Council subsequently to investigate the safeguarding allegations underpinning their tardy application to the CoP before the Council “surprisingly” abandoned them. In conclusion, he held:

“36. MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision.

37. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives.

38. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified.”

The difficulties of responding to safeguarding alerts in the context of adults who lack capacity to take their own decisions are grave; it is, though, of cardinal importance to remember (a) that ‘safeguarding’ provides no additional legal basis upon which actions can be taken by public authorities to intervene in their lives; and (b) the Court of Protection is a court, and ‘safeguarding’ applications to the CoP must be brought after as full and rigorous investigation of whether the allegations underpinning such applications can be made out as is possible in the time available. It is not surprising that a combination of a failure to bring matters to the CoP in advance of removal and then a failure to analyse timeously and rigorously the basis upon which that removal was said to be justified warranted the costs award made in this case.

Court-sanctioned interventions during childbirth – guidance

Mr Justice Keehan has just handed down a very important judgment (NHS Trust & Ors v FG [2014] EWCOP 30) in which he gives guidance as to when and how applications should made where a treating Trust is concerned that pregnant woman lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and post natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness.

A post here addresses the details of the judgment (which also includes confirmation that the acid test set down in Cheshire West applies in the hospital setting). Reproduced here, however, is the Guidance in full (which appears as an annex to the judgment). As Keehan J noted at the conclusion of his judgment:

“129. The Guidance is not intended to restrict the cases where Trusts make an application to the Court to only those cases which fall within categories 1 – 4. It identifies those categories of cases which should be the subject of an application. It must always remain open to Trusts to make an application to the Court in cases of this nature if the individual circumstances of the case justify it.

130. I hope that early and thorough planning in cases of this nature will result in the proper identification of cases which require an application to the Court and, on the contrary, those which can properly and appropriately be managed under the provisions of MCA 2005 and/or MHA 1983 without judicial involvement.”

Guidance

Introduction:

In this guidance the following terminology will be used:

‘P’ the pregnant woman who lacks, or may lack, the capacity to take decisions in relation to her antenatal, perinatal and postnatal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from her psychiatric illness;

‘obstetric care’ all care and treatment needs brought about by P’s pregnancy including antenatal care, management of labour and delivery, and postnatal care;

‘Mental Health Trust’ the NHS Trust responsible for P’s psychiatric care, whether in the community or in a psychiatric hospital;

‘psychiatric hospital’ any mental health unit at which P resides, whether detained pursuant to statutory powers or as a voluntary patient;

‘acute hospital’ a hospital other than the psychiatric hospital at which it is intended that P will receive obstetric care and deliver her child;

‘Acute Trust’ the NHS Trust responsible for the acute hospital;

‘Court’ either the Court of Protection or the Family Division of the High Court.

2. This Guidance applies in cases where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care (see paragraph 1 above) resulting from a diagnosed psychiatric illness, falls within one of the four categories of cases set out in paragraph 3 below.

3. An Acute Trust and/or Mental Health trust should make an application to seek orders in relation to P’s obstetric care to the Court of Protection or to the Family Division of the High Court if the case falls within any of the following four categories, namely where:

Category 1 – the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of COP Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the MCA or MHA; or

Category 2 – there is a real risk that P will be subject to more than transient forcible restraint; or

Category 3 – there is a serious dispute as to what obstetric care is in P’s best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under s.4(7) of the MCA; or

Category 4 – there is a real risk that P will suffer a deprivation of her liberty which, absent a Court order which has the effect of authorising it, would otherwise be unlawful (i.e. not authorised under s4B of or Schedule A1 to the MCA).

4. In relation to category 1, it is recommended that the following categories of case should be the subject of an application to the court, namely :

(i) delivery by caesarean section is proposed in circumstances where the merits of that proposal are finely balanced; or

(ii) delivery by caesarean section is proposed and is likely to involve more than transient forcible restraint of P.

5. It may be appropriate to make an application to the court in cases which do not fall within the categories set out in paragraph 3 above; it will depend on the facts of the case. If an application is so made, the provisions of this Guidance should be followed.

Assessment:

6. The early identification of an individual in respect of whom an application might have to be made is essential. In the case where P is detained under the provisions of the Mental Health Act 1983, the lead professional is likely to be a treating psychiatrist at the hospital where P is detained. In the case where P is living in the community the lead professional is likely to be a member of P’s midwifery team.

7. Once P has been so identified, the Acute and Mental Health Trusts should liaise to assess P’s capacity to make decisions in respect of her obstetric care and to plan how and when such care is to be delivered in her best interests.

8. An assessment of P’s capacity to litigate should be undertaken; this will usually be performed by P’s treating psychiatrist.

9. Capacity may, of course, fluctuate and it is extremely important to keep the issue of capacity under regular review.

10. Where there are concerns about P’s ability to care for her unborn child the Acute and/or Mental Health Trusts should notify the relevant social services department of P’s case if social workers are not already involved with her. The local authority should commence child protection procedures immediately upon receipt of a referral. Thereafter, there should be regular liaison and co-operation between the Acute Trust, the Mental Health Trust and the local authority.

11. The Acute and Mental Health Trusts, together with the relevant local authority, should hold regular planning and review meetings (‘professionals meetings’). Those meetings should be minuted. Multi-agency co-operation is likely to be an essential feature of the planning process to achieve the best outcome for P and her unborn child.

12. An identified clinician from the Acute Trust or the Mental Health Trust should be appointed to chair the planning and review meetings.

13. Part of the planning process should involve identifying whether and, if so, when a decision by the Court will be required to authorise obstetric care or any deprivation of liberty to facilitate its provision.

14. The planning process should include consideration of an assessment of the risk of harm, if any, which P poses to herself, to her unborn child or to others. Where any professional considers such a risk exists that assessment must be recorded in writing and presented at the next professionals meeting.

15. If as a result of the risk assessment the local authority proposes to make an application under the inherent jurisdiction for permission to withhold the care plan for the unborn child from P, the application should be made, save in the case of a genuine emergency, no later than 4 weeks before the expected date of delivery. (The threshold for the granting of such an application is high and applications will not be granted routinely).

16. If an application is made by either the Trusts or by the local authority for permission not to notify P of the application(s) and it is thought appropriate to apply for a Reporting Restrictions Order, the applicant(s) must give full and proper notice to the print and broadcast media of the same.

17. A decision by one agency to withhold information from any other agency must be recorded identifying the cogent reasons for the decision. The agency, from whom information is to be withheld, must be notified of the same at the earliest opportunity.

Application:

18. Where it is decided that P’s case falls within one of the four categories set out in paragraph 3 above or it is otherwise decided to make an application, an application should be made to the court at the earliest opportunity.

19. Save in a case of genuine medical emergency, any application should be made no later than 4 weeks before the expected date of delivery. This time frame is required for the following reasons:

(i) where P is assessed as lacking capacity to litigate, it will enable the Official Solicitor to undertake any necessary investigations;

(ii) to ensure the final hearing is listed and heard at least a few days before the proposed interventions; and

(iii) to enable a directions hearing to be held around 2 weeks before the final hearing. The court and the parties will then have the opportunity to ensure the court has all the relevant and necessary evidence at the final hearing.

20. In compliance with the timetable set out above, the Trusts should in a timely manner, take the following steps:

(i) issue the application

(ii) notify the Official Solicitor of the application;

(iii) disclose any evidence to the Official Solicitor which they consider appropriate;

(iv) seek an urgent directions hearing, preferably around two weeks before the final hearing, at which disclosure and the scope of the evidence can be determined;

(v) liaise with the Clerk of the Rules to list the substantive hearing at an early stage.

21. It is important that the Trusts should seek early advice and input from their legal advisers.

22. Late applications are to be avoided save in a case of genuine medical emergency. They have four very undesirable consequences:

(i) the application is more likely to be dealt with by the out of hours judge and without a full hearing in public;

(ii) the available written evidence is more likely to be incomplete and necessitate substantial oral evidence;

(iii) it seriously undermines the role that the Official Solicitor can and should properly play in the proceedings; and

(iv) it deprives the court of the opportunity to direct that further evidence, including independent expert evidence, if necessary, is obtained in relation to the issue of capacity or best interests.

This approach is dictated by P’s Article 5, 6 and 8 rights and best interests.

23. The following evidence should be filed and served in every application:

(a) In the event that P is to be transferred from a psychiatric hospital to an acute hospital for her obstetric care, a care plan from the Mental Health Trust for that transfer, to include

(i) when and, if not at a defined time, the circumstances in which P is to be transferred;

(ii) the form of transport (ambulance, secure taxi etc.)

(iii) which members of staff are to accompany P;

(iv) an assessment of the prospects of P not co-operating with the transfer;

(v) whether any specialist advice has been obtained in relation to the restraint of pregnant women and, if it has, the nature of that advice;

(vi) the plans for any restraint that may be used to facilitate the transfer, including who is to undertake the restraint, at whose direction, and with a description of the techniques to be used;

(vii) a clear description of what P’s status will be under the MHA during transfer and whilst at the acute hospital.

(b) A care plan from the Acute Trust for P’s obstetric care, including:

(i) the obstetric interventions and care that are proposed;

(ii) what anaesthesia is planned, or may be required

(iii) when, where and by whom the interventions, care and anaesthesia are to be delivered;

(iv) what further interventions may become necessary and in what circumstances.

(i) an assessment of the prospects of P not complying with the obstetric interventions and care that is proposed;

(ii) in a stepwise and escalating fashion, a description of the measures and techniques to be used;

(iii) who is to undertake the physical or chemical restraint;

(iv) whether any specialist advice in relation to the restraint of pregnant women has been obtained and, if so, the nature of that advice.

(d) A witness statement from P’s responsible clinician (or to the extent that he/she cannot deal with the issues, from others) which:

(i) contains an overview of P’s psychiatric history;

(ii) details the liaison between the psychiatric and obstetric teams caring for P

(iii) includes a focused assessment of P’s capacity to consent to the obstetric treatment which is proposed

(iv) sets out the duration for which P’s lack of capacity is likely to persist despite any steps that can reasonably be taken to help her regain capacity

(v) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;

(vi) endorses the plan for transfer and any restraint during it;

(vii) compares the impact upon her mental health of the proposed obstetric treatment and restraint and any alternatives;

(viii) assesses what obstetric treatment is in P’s best interests from a psychiatric perspective.

(e) A witness statement from a consultant obstetrician (or to the extent that he/she cannot deal with the issues, from others) which:

(i) contains an overview of P’s obstetric history so far as it is known;

(ii) reviews the obstetric care already provided in the present pregnancy;

(iii) details the liaison between the obstetric and psychiatric teams caring for P;

(iv) explains what obstetric treatment and interventions are proposed;

(v) identifies what alternative management strategies exist

(vi) deals with the anaesthesia which may be used and its risks/benefits

(vii) refers to the obstetric care plan;

(viii) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;

(ix) endorses the care plan for restraint at the acute hospital;

(x) compares the risks and benefits to P of the proposed obstetric treatment and interventions versus the alternatives and justification as to why the plan proposed is in P’s best interests;

(xi) explains why the proposed obstetric treatment and interventions are in P’s best interests.

(f) Witness evidence, which may be contained in the witness statements from the consultant psychiatrist and obstetrician, which:

(i) sets out, insofar as they are able, P’s past and present wishes and feelings and beliefs and values in relation to

(1) the pregnancy;

(2) obstetric care, including the proposed obstetric care and interventions;

(3) the importance of minimising the risk to her own health during pregnancy and delivery of her baby;

(4) the importance of maximising the prospects of safe delivery of the baby;

(ii) explains whether P knows of the application and, if not sets out the cogent reasons why P has not and should not be informed of the application;

(iii) identifies the individuals whose views should be taken into account in accordance with s.4(7) of the MCA and sets out the gist of their views as to

(1) whether the obstetric care that is proposed is in P’s best interests and, if not, what care they consider would be;

(2) P’s own past and present wishes and feelings and beliefs and values in relation to the matters in (i) above.

24. Any orders authorising medical intervention, restraint and/or a deprivation of liberty are, of course, permissive and not mandatory. P’s capacity to make decisions and/or the need to take any of the measures authorised by the court must be kept under close review by her treating clinicians and medical professions throughout P’s antenatal, perinatal and postnatal care.

Documents Checklist.

1. Application notice

2. Transfer Care Plan (where relevant)

3. Obstetric care plan

4. Restraint care plan

5. Witness statement from the responsible consultant psychiatrist

6. Witness statement from the responsible consultant obstetrician

The costs of non-compliance

The case of LB of Bexley v V, W and D [2014] EWHC 2187 (Fam) contains a stark reminder of the need to comply with court directions concerning the filing of evidence. The local authority in this case failed to file its evidence in accordance with deadlines which had already been extended, and despite the court stating that if any party was going to be unable to comply with the extended deadlines, it should apply to the judge’s clerk for an extension. It was said on the local authority’s behalf that no application was made as the local authority did not know when it would be able to produce its evidence. Unsurprisingly, the court was not impressed, but fortunately it was possible for amended directions to be given which enabled all parties to file their evidence without jeopardising the final hearing in the proceedings. The local authority was criticised and required to pay the costs of the hearing:

“I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing.”

Similar approaches may well be taken by judges in the Court of Protection, particularly where failures to meet court deadlines delay the substantive determination of an application. And we would note the case of Re W (Children) [2014] EWFC 22 as a further example of the very robust approach that is being taken in family cases – in the context of much tighter rules in the FPR; we anticipate that it is only a matter of time before the COPR includes similar provisions and a similar approach is taken in CoP cases.

[A version of this note appeared in the August 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

Out of hours medical treatment applications – the key principles

In Sandwell and West Birmingham Hospitals NHS Trust v CD & Ors [2014] EWCOP 23, Theis J has set out clear guidance that must be followed in out of hours medical treatment cases (and is wider application for other out or hours applications before the CoP). By way of context AB, a 20 year old woman with a multiple disabilities including a severe learning disability and cerebral palsy. She was admitted to hospital on 12 June 2014; her condition was such that her treating medical team wished to make an application for declarations that, in the event of her condition deteriorating, it would not be in her best interests to receive certain forms of life-sustaining treatment. Legal advice had been sought by the Trust after a discussion with her father on 17 June; the parents met with Trust representatives on 19 June, and the application application was initially made to Theis J as the out of hours judge at about 5.15 pm on Friday 20 June 2014. The only information she had was the application, some medical notes and a two page document from Dr Y, the joint speciality lead in critical care medicine at the hospital. The Official Solicitor was not represented – differing reasons for this being given in the judgment; the mother joined the hearing by telephone, but it transpired that she was taking that call in the public area of the hospital. Theis J took steps to contact the Official Solicitor who was able to arrange for Counsel; the hearing re-commenced at about 7.30 pm that date with counsel for the Trust and the OS in court and the parents and Dr Y on the end of a telephone. It had not been possible to secure representation for the parents in the short time available. Matters then ultimately progressed to an agreed order at a hearing on 30 July 2014 that it was not in AB’s best interests to be given certain life sustaining treatment.

Theis J was, however, sufficiently concerned about the timing and practical arrangements for the out of hours hearing on Friday 20 June that, having endorsed the order, she gave guidance which merits reproduction in full.

“35. I, of course, accept that in cases involving medical treatment, or the withholding of such treatment, it can be a difficult judgment as to when to make an application. This has to be looked at in the context of the realities of the situation in a critical care unit in a Trust such as this one. The person who is the subject of the application is not the only patient being cared for by the clinical team, and the situation can evolve on the ground quite quickly. I recognise also that I am considering these aspects with the benefit of hindsight, and after hearing submissions from counsel who are specialist in this field.

36. However, those considering making such applications should err on the side of making applications earlier rather than later. By doing so the necessary safeguards will be put in place in advance to support an effective hearing taking place, rather than risk what happened here, where those important safeguards had to be put in place as the hearing unfolded (such as involvement of the OS, ensuring the parents had the documents the court had and somewhere private from where they could participate in the hearing). This was particularly difficult in this case due to the time when the application was made, namely late on a Friday afternoon into the evening.

37. It must have been clear from the 17 June that there was an issue relating to this between the Trust and the parents; the medical records record the Trust sought legal advice then. The issuing of an application would not prevent efforts continuing to seek to resolve matters; they can, and should, run in parallel. But importantly, issuing the application earlier would have meant it was more likely there would have been an effective on notice hearing, with all parties being represented and their Article 6 rights being fully protected.

38. It is essential there is compliance with the relevant Court of Protection Practice Directions, in this context in particular PD9E Applications relating to the serious medical treatment and PD10B Urgent and interim applications.

39. In the situation I was presented with on 20 June some basic steps had not been taken and, with the benefit of hindsight, they should have been. These included

(1) Making suitable and sensitive arrangements for the parents to be able to participate in the hearing. Clearly joining a hearing such as this from a public waiting room in the hospital was not suitable. There did not appear to be anyone on the ground at the hospital to assist the parents in relation to participating with this hearing, there should have been. The parents had solicitors advising them and every effort should have been made for them to be able to represent the parents at a hearing as important as this one. If the application had been issued earlier in the week it is likely the parents’ solicitor would have been able to secure public funding for them. As their solicitor states in his statement ‘If I had been given 2 days notice of this application I could have obtained legal aid for the [parents]. In my view this would have made a great deal of difference to them. The experience of going to court over the issue of whether life-sustaining treatment should be withheld from one’s child is extremely stressful even if one has proper legal representation, and I do not believe that families should be put in this position other than in the most urgent of cases, which this was not. The desirability of there being equality of arms between parties in cases involving life and death should be made clear to Trusts in my view.’ I agree wholeheartedly with those sentiments.

(2) Not alerting the OS to the application with sufficient time to get a direction from the court for him to be invited to represent AB. Paragraph 8 of PD9E makes it clear the OS is prepared to discuss applications in relation to serious medical treatment before an application is made. The medical notes could have been sent over in the morning of 20 June to the OS. There was no issue in this case AB lacked capacity. Ms Paterson has informed me that in serious medical treatment cases, where the applicant is a Trust or other public body, the OS will expect the applicant to agree to pay one half of his costs acting as a solicitor for P. Where agreement to do so is readily given, matters can then proceed without costs’ questions distracting his case manager. He will, of course, act as P’s litigation friend and solicitor without such agreement, seeking an order from the court if the agreement is not forthcoming.

(3) The court is there to assist in applications such as this one; the Urgent Applications Judge and the Clerk of the Rules should be alerted at the earliest opportunity that an application is likely and, in suitable cases, application promptly made for a direction for the OS to be invited to act where an application is realistically anticipated, as it clearly was in this case. This should have been done (at the very latest) by 2pm on 20 June. This would have enabled the OS to see the papers and start making enquiries at the earliest opportunity. Proper and effective contingency plans for a hearing that is likely must be put in place at the earliest opportunity, not, as happened in this case, left to the last minute.

(4) It is essential when making this type of application, particularly one that is made out of hours, that a word version of the draft order is available so any amendments can be made promptly.

(5) The statement in support of the out of hours application gave no information regarding the history or AB’s quality of life. Such information is essential material for the court when considering the context in which such an application is being made. There was nothing to prevent that information being obtained in tandem with the clinical and medical evidence justifying the application. The evidence was clear that there were a number of clinicians involved in treating AB. If the application had been made earlier this information would have been readily available.

40. These observations, although made in the context of an application concerning an adult within proceedings in the Court of Protection, apply equally in similar proceedings under the inherent jurisdiction concerning medical treatment or the withholding of medical treatment for a child (in which CAFCASS Legal as opposed to the Official Solicitor would act on behalf of the child), where the relevant provisions in Part 12 FPR 2010 and PD12E Urgent Business apply.

41. As I hope I have made clear these comments are made with the benefit of hindsight. It is recognised that on the ground difficult professional judgments have to be made, and there will remain truly urgent cases that require applications to be made out of hours. However, I hope the message is clear that in this type of case; where significant medical treatment or withholding of treatment is at issue, or likely to be at issue, applications should be made sooner rather than later. As Mr Sachdeva and Ms Paterson submitted, this will ensure all the necessary safeguards are in place in terms of legal representation and notification to the Press. In addition, the advantages of a hearing taking place in normal court hours includes the court being able to hear parties and evidence in person, and proper recording facilities being in place.”

To fact-find or not to fact-find?

In LBX v TT and others [2014] EWCOP 24, Cobb J has given important guidance on when to hold a fact-finding hearing, and when to hear oral evidence.

Summary

TT was a 19 year old woman with moderate learning disabilities and global developmental delay. In November 2012, she alleged that her stepfather had sexually assaulted her and forced her to watch pornographic videos. She was placed in adult foster care and her stepfather was awaiting trial in the Crown Court. As a result of significant concessions by the parents, rather than a three-day hearing to conduct a full enquiry into the allegations, Cobb J was able to proceed to a more limited factual enquiry, principally directed to the issue of contact between TT and her mother (‘MJ’).

One issue was whether, in light of the concessions, the court could make orders upon an agreed basis of facts without having to make factual findings. Or, given that TT’s mother’s stance on contact would be likely to change following her husband’s trial, whether a fact-finding hearing should proceed. Cobb J reiterated the principle that he who asserts must prove on the balance of probabilities, as described by Lord Hoffman in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at §2:

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”.

In determining what factors should influence the exercise of the court’s discretion in deciding whether these should be a finding of fact hearing at the interim or final hearing, his Lordship drew upon some analogous jurisprudence from the family courts:

“46. I have had the relative luxury of three days of court time set aside to determine these issues; the court will however often be constrained by sheer practicalities of time and opportunity for an oral hearing. In each situation, the Judge surely has to make a determination – often under pressure of time – as to how far he or she can go to test the material. By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact) [1994] 2 FLR 1 in which she said as follows:

‘There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.’

It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.

47. Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):

i. Whether there is sufficient evidence upon which to make the relevant decision;

ii. Whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

iii; Whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

iv. The welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;

v. The prospects of success of the applicant for a full trial;

vi. Does the justice of the case require a full investigation with oral evidence?

48. In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian) [2005] EWHC 1593 (Fam) 2005 2 FLR 1031 at [24]. Following a review of case-law relevant to the issue he stated that:

“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a. the interests of the child (which are relevant but not paramount

b. the time that the investigation will take;

c. the likely cost to public funds;

d. the evidential result;

e. the necessity or otherwise of the investigation;

f. the relevance of the potential result of the investigation to the future care plans for the child;

g. the impact of any fact finding process upon the other parties;

h. the prospects of a fair trial on the issue;

i. the justice of the case.”

49. There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.”

According, Cobb J decided to conduct a limited fact-finding exercise and made resulting declarations and decisions. This included an authorisation to deprive TT of her liberty in the foster home.

Comment

When to hold fact-finding hearings in the Court of Protection is an issue in respect of which – unlike in relation to children – there is no guidance and a paucity of reported cases. The topic is discussed in some detail in the chapter 15 of the Court of Protection Handbook in which Alex expressed the view that a useful analogy could be drawn with the pre-MCA case of Re S (adult’s lack of capacity: carer and residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235. However, this decision of Cobb J is by far the most comprehensive to date in terms of its analysis. Until and unless a Practice Direction or Practice Guidance is produced setting out a framework, it is suggested that the model set out by Cobb J is one that will be of considerable assistance to practitioners and judges in determining whether a fact-finding hearing is required and the need for oral evidence. It should, though, be recalled, that the tenor of recent judgments from the Family Division/Court of Appeal is that very considerable caution should be exercised before a separate fact-finding hearing is listed (see, for instance, Re S, Cambridgeshire County Council v PS and others [2014] EWCA Civ 25).

[A version of this note appeared in the August 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

A shot across the bows of practitioners

Mrs Justice Parker has in a case decided in March of this year, but only this week placed onto Bailii, made a number of pithy remarks about the conduct of cases before the Court of Protection which practitioners should note with care. The case, Re PB [2014] EWCOP 14, also contains: (1) a discussion of the Court of Appeal decision in PC v City of York Council [2013] EWCA Civ 478 and the ‘causative nexus’; and (2) a number of (to our mind controversial) obiter remarks about the scope of the inherent jurisdiction, both of which will be the subject of discussion in due course on Alex’s website. For present purposes, however, it is the concluding section on ‘Case Management and the Court of Protection’ that is of significance, and we reproduce her remarks in full as her Ladyship clearly intended them to be of general application. Further we consider that they represent an approach to robust case management that is likely in due course to be reflected in amendments to the COPR and/or Practice Directions to bring across into the Court of Protection some of the ‘standardisation’ that is now such a feature of family proceedings.

“126. I stress that I do not wish to criticise the advocates in this case. But I take this opportunity to offer some general guidance derived from my experience in Court of Protection cases from the point of view of the decision maker. This is not a new stance: I have raised the same points in other cases. But over the years some effective steps have been taken to control and manage family cases from which lessons have been learnt. Even more progress is being made under the impetus of the family justice reforms

127. Adoption of a practical approach does not detract from intellectual analysis and rigour. Lord Wilson of Culworth as a puisne judge described himself as “family lawyer of practical disposition”. The reality and practicality of the subject matter of the decision can in my experience sometimes get lost in Court of Protection cases. So can the focus on effective administration of justice. The quest to address arguments of increasing subtlety can, as in this case, paralyse effective decision making by a Local Authority and hamper the ability of the court to deliver a decision. All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources, and other court users. I do not accept that (i) every possible point must be put (ii) the belief of a protected party is relevant to the issue of capacity. As Lord Judge reminded the profession in R v Farooqi and Others [2013] EWCA Crim 1649, it is for counsel to decide what question to ask and not the client. The fact that a client may lack capacity is not a green light for unmeritorious or unrealistic arguments to be put forward.

128. Everything comes at a price. And every penny spent on litigation is in reality (because it all comes out of the public budget) a penny taken away from provision for care. There were many court hearings whether attended or not, at most of which almost nothing of any materiality was achieved. One of the problems may have been lack of judicial continuity. It took many months for a fact finding hearing to take place. The Court is still not in a position to determine best interests. I had to read and reread reams of material and law reports after my return from leave to conclude this judgement.

129. I recognise the importance of this field of litigation. I recognise the need to promote the Convention rights of as well as to protect the vulnerable and the incapacitated. But in cases under the Children Act 1989 equally important human, Convention and protective issues arise. As in the Court of Protection, the court has to have regard to the overriding objective. Experts are not routine and have to be “necessary”, and the necessary expertise may come from the social worker.

130. Baker J in CKK and KK [2012] EWHC 2136 (COP) and Butler-Sloss J in Ms BS v An NHS Hospital Trust [2002] EWHC 429 (Fam) [2002] 2 All ER 449 reminded clinicians that a close professional relationship with P might lead them to be drawn to a supportive or emotional rather than analytical approach to capacity. I do not read these comments as supporting the appointment of an “independent” expert as the first line approach before the treating clinician has even set out the reasons behind the certificate of incapacity. Second opinions must be justified: and not just ordered as a matter of routine until there is no reason to doubt the first.

131. I am told Moor J queried the need for further evidence and the time estimate but was assured by the Official Solicitor that this was “reasonable” in order to ensure that the matter could be “properly resolved” by the Court. I cannot imagine that Moor J envisaged that there would be five reports in all, a “schedule of agreement” which was in fact not truly agreed, all of which led to considerable confusion, muddle, and prolongation of the court process. It certainly led to a prolonged examination of the witnesses, as fine distinctions in use of language and formulation of ideas were pursued and analysed.

132. The social care evidence has been crucial. The assessment of capacity is in the end for the Judge on the basis of all the facts (see in particular Baker J in CC & KK & STCC [2012] EWHC 2136 (COP)) echoed by me in YLA & PM MZ COP 1225464. After all a single expert can be challenged by the process of cross-examination.

133. Attempts have been made to encourage if not direct Court of Protection practitioners to comply with basic sensible rules of case management in order to assist the judge. Moor J’s attempt to bring some order to the proceedings failed. The most basic of requirements, to provide a witness time estimate template, was ignored. Thus at the commencement of the hearing I was met with an assertion that there was insufficient time available: particularly for lengthy cross-examination. I had to take counsel in detail through the list of potential witnesses, and the issues which they were to address, in order to create a plan for the hearing of the case. This took up time. All this should have been done beforehand and a late return was no excuse. Specialist counsel had been on board throughout. Ms Street submitted that Dr Barker’s evidence was still so unclear as to require two hours cross-examination by her alone. I managed to shorten this a little. Even so the case proceeded much more slowly than was necessary. In my view this should have been a two day case at most.

134. Before seeking a four day listing the advocates should have provided for Moor J a precise broken down time estimate of what time was required for each witness, submissions and judgment, focused on the actual issues, or likely issues. I insist on this at directions hearings, and I find that I can usually shorten the individual times required, and the overall time estimate, very considerably in the process. Time estimates must be adhered to.

135. A judge cannot easily understand the issues, or give an effective ex tempore judgment, without a chronology of essential dates. I asked for one at the outset. It was produced part of the way though the hearing, obviously in a hurry, and a number of important dates, particular court hearings, were not included. I had to trawl though the applications and orders in the bundle and the many lengthy statements in order to produce the analysis of the history above which I have found so essential here.

136. Fact finding schedules should be produced in a way which makes it easy for the Judge to utilise them as a tool for delivery of judgment. The contents of the document produced were in fact useful, but difficult to use. I hope it is not churlish to complain that it was created in landscape rather than portrait, that when answered the page references were omitted, and there was no space for the judge’s comments. It would have been even more useful if there had been a chronology.

137. The evidence could have been addressed much more shortly. The actual issues raised were:

i) The psychiatric evaluation of PB.

ii) The extent to which TB’s influence or pressure affected capacity: the legal issue arising from that was a matter for the judge.

iii) The extent to which PB’s beliefs may have been causative of her decision making: the interpretation of the words “because of” was for the judge and not the witnesses.

iv) Whether any potential decisions were simply unwise: again as Dr Barker recognised this was really a matter for judicial evaluation.

138. The joint statement should have addressed starkly:

i) Is there impairment or disturbance, if so what is it and what is its effect?

ii) What is the decision to be made?

iii) What is the information necessary to make that decision?

iv) Is the person able to retain, use or weigh, that information and/or communicate that decision?

v) Is there a lack of capacity and if so why?

139. And if the experts do not agree, they must make it clear. If they have not made it clear, they must be asked to do so. If their disagreement does not affect the outcome that is one thing. If they disagree on the fundamental issue, they must say so. The experts are not a jury considering whether they can give a unanimous verdict. There is no duty to “harmonise” views if in reality the experts do not agree. It simply makes the task of the judge more difficult.

140. Practitioners need to ask themselves:

i) What do I really need to challenge?

ii) What does the judge need to know?

iii) What is actually arguable and what is not?

141. Effective steps must be taken to reduce evidence to the essential. In Farooqi Lord Judge emphasised the requirement that cross-examination should proceed by short, focussed question rather than by comment, opinion and assertion. I also note that in The Law Commission lecture given last year Lord Judge stated (as I was taught) that in principle no question should be longer than one line of transcript. In any event, the judge is interested in the answer, not the question.

142. Advocates need to be able to control the witness by the form and structure of their questions and not permit discursive replies or to allow the witness to ramble (particularly if the witness has the tendency to be prolix) . There is no necessity for a long introduction: apart from anything else it may distract and confuse the witness and the judge.

143. Examination must not proceed by way of “exploration” of the evidence: i.e. a debate, or by putting theory or speculation, rather than by properly directed questions which require an answer.

144. This is all the advocates’ responsibility. However hard a judge tries to speed the process, this takes up time and interrupts the flow, and often leads to a debate with the advocate. Also it can give the wrong impression to the lay client about the judge’s view of them or their case.

145. Where two parties have the same case to put, the same points must not be repeated.

146. Finally the advocate needs, if facts are challenged, to put the client’s case.

147. I note and am glad to see that in IM v LM the Court of Appeal approved Peter Jackson J’s decision to determine the issues in a 2 hour hearing. The second opinion psychiatrist was not cross–examined. I am sure that in that case it helped that there had been judicial continuity throughout.

148. I am certainly not suggesting that this case should not have been litigated. It may have been necessary to have two experts. I really cannot tell, because of the way their instruction progressed, which may have led to their lack of precision on paper. But more focus on case management and case progression is essential.”

Good practice in habitual residence cases

Sir James Munby P, sitting in the Court of Appeal, in Re F (A Child) [2014] EWCA Civ 789, has set out some basic propositions that apply in relation to the determination of habitual residence in cases involving children. Whilst they were stated in the context of the application of Council Regulation 2201/2203 (known as Brussels II revised (BIIR)), they are of wider application and it suggested that (with one exception highlighted below) the core procedural aspects apply equally to the determination of habitual residence by the Court of Protection:

“11.

[…]

i) Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident.

ii) […]

iii) Jurisdiction under Article 8(1) depends upon where the child is habitually resident ‘at the time the court is seised.’ [note, in cases under Schedule 3 to the MCA 2005, jurisdiction under the MCA 2005 depends upon where the individual is habitually resident at the point when the court determines the question of habitual residence: Re PO; JO v GO [2013] EWHC 3932 (COP) at paragraph 21]

iv) Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others [2014] EWCA Civ 152, paras 47, 58.

v) Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36.

vi) Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36.

There is a further point to which it is convenient to draw attention. If it is, as it is, imperative that the issue of jurisdiction is addressed at the outset of the proceedings, it is also imperative that it is dealt with in a procedurally appropriate manner:

i) The form of the order is important. While it is now possible to make an interim declaration, a declaration made on a ‘without notice’ application is valueless, potentially misleading and should accordingly never be granted: see St George’s Healthcare NHS Trust v S, R v Collins and Others ex p S [1999] Fam 26. If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of ‘Upon it provisionally appearing that the child is habitually resident …’ Once the matter has been finally determined the order can contain either a declaration (‘It is declared that …’) or a recital (‘Upon the court being satisfied that …’) as to the child’s habitual residence.

ii) The court cannot come to any final determination as to habitual residence until a proper opportunity has been given to all relevant parties to adduce evidence and make submissions. If they choose not to avail themselves of the opportunity then that, of course, is a matter for them, though it is important to bear in mind that a declaration cannot be made by default, concession or agreement, but only if the court is satisfied by evidence: see Wallersteiner v Moir [1974] 1 WLR 991.”

[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

Varying and revoking substantive orders

On an application to revoke an order made under the 1980 Hague Child Abduction Convention, Mostyn J has held in TF v PJ [2014] EWHC 1780 (Fam) that the reference in the Family Procedure Rules 2010 r.4.1(6) to the court having a power to vary or revoke an order made under the rules was not confined to procedural or case management orders. Rather, it could apply equally to final orders such that (for instance) a High Court judge may vary or revoke a substantive final order made by another High Court judge. Applying dicta from the Court of Appeal in civil cases (Tibbles v SIG Plc [2012] EWCA Civ 518, [2012] 1 WLR 2591 and Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 1 WLR 795, Mostyn J held that the only circumstances where the rule could be invoked were where there had been non-disclosure or a significant change of circumstances.

It is suggested that this approach holds equally true to the provisions of rule 25(6) of COPR 2007 which provides – in identical terms to FPR 2010 r 4.1(6) – that “A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]