Author: sophymiles1

Transparency and position statements

Practitioners should note the judgment of Poole J in Re AB (Disclosure of Position Statements) EWCOP 25 (T3). In summary, Poole J has ruled that position statements are documents “put before” the Court within the terms of the usual Transparency order and are also documents “in the court records” for the purpose of rule 5.9 Court of Protection Rules 2017 (COPR). The key guidance for practitioners appears at paragraph 36 of the judgment and is set out below (emphasis added):

1. Position statements are documents “put before” the Court within the terms of the Court of Protection template Transparency Order. They also become documents within the court record once filed and they are filed once sent to the court listing office or a judge’s clerk or court clerk.

2. Parties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order. I also suggest that it would be helpful to include a warning on the front sheet of the position statement – a rubric similar to that which appears on published judgments, namely that “there is a Transparency Order in force and that irrespective of what appears in the position statement, the Transparency Order must be strictly complied with. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.“

3. An observer does not have an automatic right to see position statements, whether they are being used in a hearing they are to observe or have been used at a hearing they have previously observed. A change in the court rules and/or relevant practice direction (or to the standard Transparency Order referred to in the practice direction) would be required to create such a right.

4. If an observer wants to see a party’s position statement they should ask the party in advance of the hearing and state their reason. If they cannot contact a party in advance of the hearing (whether at court or otherwise) they may make the request (with reasons) to the court and that request can be passed on to the party or their representatives.

5. When a hearing is in public and a Transparency Order has been made, a party is free to provide a position statement to an observer attending a hearing without requiring a Court direction provided that (i) the position statement does not include the information protected by the Transparency Order and (ii) the observer has been provided with a copy of the Transparency Order so that they are bound by it.

6. At a hearing in public, a party must ask the Court for permission to provide a position statement to an observer who has requested it if the document does include the information protected by the Transparency Order, provided that the party is otherwise content to provide it. The Court can then allow a variation of the Transparency Order to allow for the provision of that non-anonymised position statement to that observer at that hearing, if the Court considers that an appropriate step to take without hearing further submissions. That variation should be recorded in the subsequent court order. To re-iterate, the order would be a variation of the Transparency Order for the purposes of a specific hearing and on request of the party or legal representative who would otherwise be in breach of the Transparency Order by providing the position statement to an observer.

7. If a party refuses to provide a position statement to an observer on request, the observer may apply to the Court for a direction, as provided for by the standard terms of the template Transparency Order, that they be provided with a copy on such terms as the Court considers fit.

8. Such an application need not be made formally under the procedure in COP Rules Part 10. There is insufficient time to allow for a formal written application to be made and the Transparency Order allows for its variation to be made of the court’s own motion or on application with no requirement for such an application to be made in writing. That is a much more suitable process for a request by an observer at a hearing. The application may be made orally to the Court at the outset of the hearing.

9. The Court will hear submissions by the observer as to how access to the position statement will advance the open justice principle, for example by allowing them to follow the case. If needed, the Court will then hear submissions from the party refusing to provide its position statement as to countervailing factors such as the risk of harm or proportionality. The observer may respond and the Court will give a short ruling and allow the application on such terms as it thinks fit, or refuse it. Dring will be applied.

10. If, after a hearing has concluded, a non-party – whether or not they observed the hearing – requests to be provide with a position statement that was used at the hearing, then they should make a Part 10 application under r5.9(2). That process must be adopted because the application should be on notice with an opportunity for the party concerned to respond. The applicant observer will need to make out a case in support of their application. The hearing having concluded, the more immediate, less formal process outlined above will no longer be appropriate. Again Dring will be applied (and see In re HMP below)

    This should provide clarity to judges, practitioners and observers. Those drafting position statements from now on are strongly advised to include the wording suggested by the judge on the face of the position statement.

    Article 5 and representation….again

    In Re PQ (Court Authorised DOL: Representation during Review Period) [2024] EWCOP 41, a local authority argued unsuccessfully that Article 5 did not require a rule 1.2 representative to be appointed during the review period, when the court had made best interests decisions for PQ and authorised care arrangements giving rise to a deprivation of liberty, which was to be reviewed in 12 months.  The court (perhaps unsurprisingly) rejected this submission having regard to the clear findings of Charles J in Re NRA [2015] EWCOP 59 and Re JM [2016] EWCOP 15, and given PQ’s specific circumstances.   The court did not however rule out the possibility that “in some cases” compliance with Article 5(4) may not require the appointment of a litigation friend or representative.

    Had there been an available rule 1.2 representative PQ could have been discharged as a party.  However, in this case, no rule 1.2 representative was available.

    The judge was aware that legal aid funding depended on an oral hearing being listed or likely to be listed[1], but was not willing to list what could be an unnecessary hearing as a device to secure legal aid.   The judge refused to discharge the Official Solicitor as litigation friend and directed her to provide the level of representation to fulfil a role similar to an RPR or rule 1.2 representative.   The judge was aware from an email from a Legal Aid Agency (LAA) Caseworker that legal aid funding would not normally keep a certificate open during a review period. In the event that funding was withdrawn, there would be a further hearing and the following directions would apply:

    • A full explanation from the LAA of the decision not to fund representation;
    • The LAA would be requested to secure ongoing funding pending determination by the court of PQ’s representation;
    • The local authority was to review its decision not to fund a rule 1.2 representative and provide a written explanation if it decided not to fund.
    • The Secretary of State for Justice would be joined as a party and required to provide evidence as to the provision of funds for a professional 1.2 representative.

    The judge directed that the judgment is provided to the Legal Aid Agency and Secretary of State for Justice with a request they consider the implications.

    Comment:

    • Whilst Poole J did not rule out that representation (either a litigation friend or rule 1.2 representative) might not always be required to comply with Article 5(4), it should be borne in mind that Charles J heard detailed argument over the issue in Re NRA, Re JM and later Re KT [2018 EWCOP 1] from several local authorities, and the Secretaries of State for Health and for Justice who were joined as parties[2].  He reached clear and reasoned view that the minimum procedural requirements of Article 5 and the common law requires “some assistance from someone on the ground who considers the care package through P’s eyes and so provides the independent evidence to the COP that a family member or friend can provide”.   
    • Sadly this case reminds readers of the perverse incentives that continue to permeate funding decisions in this area of law.  As Poole J pointed out, in the end the states pays, and the solution he felt compelled to adopt means the state is likely to pay more than it should do.

    [1] Regulation 52, Civil Legal Aid (Merits) regulations 2013, although this does not appear to have been cited to the judge

    [2] Poole J describes Charles J’s efforts to find a practical solution as “Herculean”- see paragraph 32.

    Location and Collection orders in the Court of Protection

    Practitioners may find it helpful to to refer to the short ex tempore ruling by John McKendrick KC, sitting as a Deputy High Court Judge and Tier 3 judge in the Court of Protection.

    The judgment, which you can read here, describes an urgent application to secure the return of A, a young man lacking capacity to decide about residence and care, to a supported placement. A had been placed there by orders of a Tier 1 judge (a District Judge) in the Court of Protection, but had been removed by his mother and her partner, who were respondents. Orders were made by the Tier 1 judge requiring A’s return but it was not possible to serve the respondents because their -and A’s- whereabouts was not known.

    In summary, John McKendrick KC was persuaded on the facts of the case that it was proportionate to make location and collection orders, and third party orders against two telephone companies to assist in locating A. These were to be enforced by the Tipstaff. The judge noted that there was clear authority from the judgment of Munby LJ in PM v KH that these orders, more commonly used in cases where the Family Division was trying to locate and retrieve abducted or missing children, could be made under the inherent jurisdiction in relation to adults lacking capacity. He set out his reasons for concluding that he had the power as a judge in the Court of Protection to make such orders under section 16(5) Mental Capacity Act 2005 (exercising the powers under section 47 MCA), following the judgment of the Court of Appeal in Re G. However, for the avoidance of any doubt, he made parallel orders under the inherent jurisdiction.

    You can read Alex’s post on the case here.

    The consequences of intemperate communication

     

    In TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3 (22 January 2021) Cobb J was faced with a ‘troubling case” concerning GA, a woman with Alzheimer’s dementia currently being cared for at home by her son TA.   “Poor progress” had been made largely because of challenges to the local authority.  The judge made directions on the substantive application.  These do not appear in his judgment which deals instead with two applications:

    i) An application dated 17 November 2020, buttressed by a separate but similar application dated 15 January 2021, issued by TA for permission to make his own recording of this hearing and indeed all hearings in this case in the Court of Protection;

    ii) An application, issued of the Court’s own motion by HHJ Anderson on 10 December 2020, for an order restricting TA’s contact with the Court of Protection Court office, given his history of communications with the court over a period of time.

    Cobb J noted that the Court of Protection was not included in the list of courts in which the Coronavirus Act 2020 created an offence of making an unauthorised recording; but that the terms of the criminal prohibition are included in standard orders made since the guidance of Hayden J on remote access to the Court of Protection, so that unauthorised recordings become civil contempt of court.  On the facts of this case Cobb J was far from persuaded that there was any need for TA to record hearings; moreover he considered TA was likely to publish material which would identify or run the risk of identifying GA.

    The background to the second application speaks for itself:

    “The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.

    The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation. 

    I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).“

     Cobb J found that there was no justification for the tone or volume of the correspondence and quoted the judgment of King LJ in Agarwala v Agarwala

    “Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”

    Cobb J made use of his powers under s47 Mental Capacity Act to injunct TA from communicating with the court by email and telephone, stating that although exceptional it was proportionate to the facts of the case, and added a penal notice.    The judgment concludes with the text of the order itself.    Cobb did not make use of the Part 22 of the Court of Protection Rules 2017 to make a civil restraint order.

    Section 21As, interim declaration and the importance of speedy determinations

    Practitioners will need to note the implications of the recent and important judgment of Hayden J in DP (by his ALR Keith Clarke) v London Borough of Hillingdon [2020] EWCOP 45 . You can read the judgment here.

    DP was 72 and had an organic personality disorder and catatonic disorder, both of which resulted from an earlier stroke.  He was  deprived of his liberty in a care home under a standard authorisation (SA).   He challenged this under section 21A Mental cApacity Act 2005 (MCA). 

    The judge had provided the parties with a directions order in which she made interim declarations under section 48 MCA to the effect that DP lacked capacity to conduct the proceedings and as to whether to be accommodated in the care home for the purpose of the relevant care and treatment.   The judge must have been aware that the question of capacity was contentious as she also directed the parties to identify an expert who could provide a report on DP’s capacity under section 49 MCA.

    DP successfully appealed on the basis that the judge wrongly approached the question whether to make a declaration of incapacity under section 48.  

    The judge had provided an analysis of the only evidence of capacity which was from a section 12 psychiatrist Dr Longe.  It was clear from that analysis that the judge had reservations about Dr Longe’s evidence.  She was concerned that Dr Longe did not explain the purpose of the assessment to DP.  Dr Longe’s conclusion that DP could not communicated his decision  “did not quite make sense as DP was able to speak and communicate”.   Moreover he did not address “the real question” which was whether DP could evaluate any available options as to his residence and care.  Nevertheless the judge made the declarations under section 48 as to DP’s capacity.  Moreover she did not address at all DP’s application that the SA should be terminated immediately.

    On appeal Hayden J noted that in an application  under section 21A is (as set out by Charles J in Re UF ) the Court “ is assessing the relevant qualifying requirements itself and reaching its own view on the evidence presented to it. It is almost inevitable that when doing that the Court will have to pay close attention to what will, on the evidence before it, best promote the best interests of the relevant person in the immediate, medium and long term and so carry out its own best interests assessment.”  He noted that both parties agreed that that “the court should not treat Section 21A applications in the same way as a welfare application because Article 5( 4) ECHR requires the court to determine the former as, in effect, a matter of urgency.”

    The judge rejected the submission that the court should never make interim orders of any kind in a section 21A case, preferring the alternative formulation that “an interim order, to gather further information, should only be made if there is a sufficiently clear evidential basis to do so.”  He stated  “I strongly prefer the alternative submission which, in my judgement, strikes the balance between protecting P’s autonomy and promoting his welfare.”

    The judge went on to say that:

    “It is the duty of the court to determine whether the mental capacity requirement is met. If, as here, the judge was uncertain, then the obligation on the court was to investigate it further and to do so “speedily”, to adopt the word used in Article 5(4). Of course, in Section 21A applications the court will always and of necessity have a capacity assessment before it. It was open to the Deputy District Judge, for example, to permit questions to be put to Dr Longe and/or, if necessary, to arrange for him to give evidence or revisit his assessment. I doubt that it was necessary to instruct a further expert on what is, when properly identified, an essentially uncomplicated issue i.e. does DP have capacity to decide to change care homes to be nearer to his friend Bill and, if not, whether it is in his best interests to do so.”

    As to the quality of evidence necessary, the judge cited the ECtHR’s judgment in Sykora v The Czech Republic, 22 November 2012, para 103:

    “any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant’s incapacity should be addressed in sufficient detail by the medical reports”.

    Hayden J noted that 

    “45.     Where a standard authorisation is in place, it remains in force until (i) its expiry date is reached; (ii) it is suspended, under sch. Al, part 6; (iii) the supervisory body terminates it; or (iv) the court terminates it, under s. 21A. For as long as the authorisation is in force, it provides the authority for the deprivation of P’s liberty. When s. 21A proceedings are brought, the court’s function is to ‘determine’ questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions (see para 31 above).

    46.       As I have emphasised above, when the court determines any question relating to the authorisation, the extant authorisation remains in force, without the need for any positive decision by the court. The court does not become responsible for authorising P’s deprivation of liberty upon the issuing of as. 21A application. The court’s only function is to provide the review of the authorisation which is in force. In every case it is for the court to determine how it should resolve the issues raised in the application. Mr Parkhill submits that these are essentially case management decisions and, I agree. Mr Parkhill recognises and accepts Ms Butler-Cole’s point that the guiding principle is the need for speedy determination of the lawfulness of detention mandated by Article5(4). This is a realistic concession recognising a significant body of European jurisprudence: Van der Leer v. the Netherlands, Appl No. 12/1988/156/210, 21 February 1990; Oldham v the United Kingdom, Appl No. 36273/97, 26 September 2000; Van Glabeke v France, Appl No. 38287/02, 7 March 2006; MH v the United Kingdom (2013) ECHR 1008, 22 October 2013; Raudevs v Latvia, Appl No. 24086/03, 17 December 2013.”

    There is no need for the court to make a declaration under section 48 as to P’s lack of capacity for the purpose of Schedule A1 MCA whilst the SA remains in force.

    The judge then made the following (obiter) observations as to the use of section 48 which are summarised at para 62:

    • The words of the Statute in Section 48 require no gloss;
    • The question for the Court remains throughout: is there reason to believe P lacks capacity?;
    • That question stimulates an evidential enquiry in which the entire canvas of the available evidence requires to be scrutinised;
    • Section 48 is a permissive provision in the context of an emergency jurisdiction which can only result in an order being made where it is identifiably in P’s best interests;
    • The presumption of capacity applies with equal force when considering an interim order pursuant to Section 48 as in a declaration pursuant to Section 15;
    • The exercise required by Section 48 is different from that set out in Section 15. The former requires a focus on whether the evidence establishes reasonable grounds to believe that P may lack capacity, the latter requires an evaluation as to whether P, in fact, lacks capacity;
    • The court does not become responsible for authorising P’s Deprivation of Liberty upon issuing of a Section 21 A application, The court’s function is to review the authorisation which is in force;
    • The objective of Section 48 is neither restrictive, in the sense that it requires a high level of proof, nor facilitative, in the sense that it is to be regarded as a perfunctory gateway to a protective regime, and
    • There is a balancing exercise in which the Court is required to confront the tension between supporting autonomous adult decision making and to avoid imperilling the safety and well-being of those persons whom the Act and the judges are charged with protecting.

    Comment

    This important judgment helpfully emphasises the need for the court to ensure a “speedy” determination of an application under section 21A.   In section 21A cases the courts should not make an interim declaration as to capacity in relation to the decisions concerning residence and care.  There is however no suggestion that it may be inappropriate to make interim declarations under section 48 in relation to other matters such as capacity to conduct the proceedings, provided the court is satisfied as to the evidence, applying the guidance set out above.

    Importantly this judgment does not prevent the court from extending a SA under section 48, which can be important for legal aid purposes.  In Re UF, which Hayden J expressly approved, Charles J reasoned that:

    34.It seems to me that the combination of s. 21A (2)(b) and (3)(a) and (b), s. 47 and s. 48 and paragraph 61(2) of Schedule A1 of the MCA empowers the Court of Protection to vary an existing standard authorisation by extending (or shortening) it and that if and when it exercises that power it would normally be sensible for the court to give consideration to whether it should then exercise its powers under ss. (6) and (7) or give directions concerning its future exercise of those powers. 

    35. In my view if the court so extends a standard authorisation it, unlike the supervisory body (see paragraph 51(2) of Schedule A1), is not limited to the period stated in the best interests assessment upon which it was based if that period is less than the one year referred to in paragraph 42(2)(b) of Schedule A1. This is because the Court is exercising its discretion and powers, and so is in effect carrying out its own (interim) best interests assessment.”

    Moreover it should  be remembered that the fact that a case begins as a challenge under section 21A does not prevent the court from exercising its jurisdiction under sections 15 and 16 MCA.  This was reiterated by the Court of Appeal in Director of Legal Aid Casework v Briggs.   Briggs is important too for the recognition of the breadth of issues that may arise in Section 21A cases.

    Progress report- remote working in the Civil and Family Courts

    Practitioners may be interested to read the letter to District and Circuit judges, sitting in civil and family cases, from the Lord Chief Justice, Master of the Rolls and President of the Family Division.  You can read the letter here.

    It is a helpful progress report on the experience of remote working, by both telephone and video-link.   It notes:

    “Across all jurisdictions, around 40% of all hearings have continued, some in the traditional way, others using phone, video or the internet. It is easier to continue in this way with some types of court and tribunal cases than others. The overwhelming majority of those have not been long hearings involving difficult evidence or high emotion, and for obvious reasons.”

     

    The letter does not refer to the experience of the Court of Protection, or to cases involving deprivation of liberty.

    Fees Reduction

    Practitioners are informed that from today 22 July 2019, the following fees will apply:

     

    Application fee (currently £385) will reduce to £365.

    Appeal fee (currently £320) reducing to £230.

    Hearing fee (currently £500) reducing to £485.

    You can read the order here.

    “Finally, a happy ending to a tragic story”

    In two excoriating judgments  (London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1) Lambeth CCG (2) [2018] EWCOP 14;  and London Borough of Lambeth v MCS (by her litigation friend the Official Solicitor) (1); and Lambeth CCG (2)[2018] EWCOP 20), Newton J has underlined the disastrous- and costly- consequences of “disorganised, muddled and unfocused decision-making”.  He was highly critical of the the failure of two statutory bodies concerned to make progress in repatriating MCS, a Colombian woman who suffered hypoxic brain injury as a result of a cardiac arrest in 2014. There was no dispute that MCS, as a result of her brain injury, lacked capacity to make decisions about her residence and care, nor was there any dispute that it was in MCS’ best interests to be repatriated to Colombia in accordance with what had been absolutely consistent wishes.

    Although proceedings were commenced by MCS’ RPR in 2016 (as a result of the RPR’s frustration with the delay since 2014 to make the repatriation arrangements), it was not until January 2018 that the judge was able to sign off a plan for MCS’ return to her home, which went smoothly and  provided what the judge described as a “happy ending to a tragic story”.

    Newton J used uncompromising language in describing the failings of the local authority: “shocking”, “astonishing”, efforts that were “facile.. ineffective” and documentation that was “depressingly scant…unedifying”.  The impact of all of this is graphically summarised at [9] in the first judgment:

    “Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.”

    Perhaps unsurprisingly, this was followed by an adverse costs order in the second judgment. Newton J commented at [2]:

    “Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court’s considerations. However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW [2017] EW COP 7 where the application was “scarcely coherent … totally without merit … misconceived and vexatious”. These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs.”

    The judge did not accept that the statutory bodies had been (as they submitted) “assiduous” in trying to arrange MCS’ repatriation.  He did accept that the operation to return MCS to Colombia was novel for those concerned with making the arrangements.  Despite this he was highly critical of the failure to make “basic common-sense enquiries” with the Colombian Embassy and to apply sufficient professional focus.  The judge commented at [4] that

    “It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.”

    The judge ordered “without hesitation” that the local authority and CCG should fund the costs of the proceedings.  This is an important reminder that simply bringing a case before the court, and achieving the right outcome in the end, will not avoid the penalty of a costs order if there are failings of the magnitude that occurred in this case. The fact that the case involves an issue which may well be novel and operationally complex does not negate the obligation to bring sufficient professional focus to bear in order to draw the case to a timely conclusion.