Category: Case comments

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 Court of Protection, injunctions and persons unknown

    In Re SF (Injunctions) [2020] EWCOP 19, Keehan J was concerned with a young woman, SF, who had a diagnosis of Autism Spectrum Disorder and also had learning disabilities. She resided in a supported living establishment where she received 1:1 support 24 hours per day. In September 2019 the care and support provider became aware that SF was communicating with a number of men via social media and the internet. Further, it became apparent that some of these men were attending her placement and having sexual relations with her. Only one of those men had been identified, as VK.

    On 28 January 2020 the local authority applied for an injunction against VK to prevent him from attending SF’s accommodation. On 5 February 2020 the local authority applied for an injunction in the same terms against ‘persons unknown’.

    Keehan J had not, initially, been persuaded that the Court of Protection had the power to grant an injunction against either a party or a non-party. He convened a hearing on the specific point, and this judgment contains his reasons for concluding that it does have the power, in summary because:

    i) s.47(1) of the 2005 Act is drafted in wide and unambiguous terms;

    ii) it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the 1981 Act to grant injunctive relief;

    iii) this conclusion is fortified by the terms of s.17(1)(c) of the 2005 Act which permits the court to prohibit contact between a named person and P;

    iv) it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act. The provisions of s.16(5) are drafted in wide terms and enable the court to “make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)”;

    v) finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

    Whilst the judgment is a careful analysis of the position, it is (with respect) a little odd in 2020 for it even to have been a question-mark over whether the Court of Protection had such a power. The chapter in the Court of Protection Handbook addressing enforcement notes – for instance – the case of W v M in 2011, in which Baker J had observed that there was “no doubt about the power of the Court of Protection to make injunctions.” Indeed, until recently suspended by COVID-19, the entire approach of the transparency Practice Direction depended upon the making of injunctions in the transparency order in each case against identified individuals/categories of individuals.

    What is more interesting, but tantalisingly not addressed in detail in SF’s case, is the power to make an injunction against persons unknown. This power has not to date been addressed in a reported case, although in EXB v FDZ [2018] EWHC 3456 (QB), Foskett J, sitting both as a High Court judge and a judge of the Court of Protection, was asked in the context of a case as to whether an individual should be told the size of their personal injury award to consider making “an order – effectively in the form of an injunction – preventing any person who knows of the size of the award from disclosing that information to the Claimant. It would be akin to an order for possession against ‘persons unknown’ in possession proceedings.” Foskett J declined to do so, because whilst he could “see the attractions of a mandatory order such as that suggested […], I am not at all sure how such an order could be policed and how anyone in breach of it could be dealt with. An order with a penal notice attached seems somewhat disproportionate and draconian in the circumstances and an order without teeth is arguably an order that should not be made” (paragraph 42).   Foskett J made an order (under both s.16 and s.15(1)(c) MCA 2005) to the effect that “[i]t shall be unlawful for any person (whether the Claimant’s deputy or any other person who has knowledge of the amount of the Settlement) to convey by any means to the Claimant information about the amount of the Settlement, save that this declaration does not make unlawful the conveyance of descriptive information to the Claimant to the effect that the Settlement is sufficient to meet his reasonable needs for life.” However, because of his previous analysis, what Foskett J did not then do was then go one stage further and consider whether he could, in fact, seek to back such an order by way of an injunction.

    The order against VK could clearly be made as a step required to enforce the decision of the Court of Protection (permitted by s.17(1)(c) MCA 2005) to permit contact between VK – as a named individual – and SF. That would not apply in relation to the injunction against ‘persons unknown.’ However, as a matter of logic, if the Court of Protection has the same ‘powers, rights and privileges’ as the High Court, it is necessarily to look back up the line to the High Court for the answer.  The Supreme Court has relatively recently considered the position – by reference to civil litigation – in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6. Lord Sumption, on behalf of the Supreme Court, identified that that there are conceptual difficulties in relation to the bringing of a claim in relation to those who are not only anonymous but cannot even be identified. However, where, as in a case such as the present, the potential respondents are potentially identifiable (and could also, in principle, be served with the application form – by a person waiting at the placement and giving it to them), these difficulties do not arise, proceedings can be brought, and injunctions then granted to enforce the relief granted in those proceedings (see also Canada Goose UK Retail Ltd & Anor v Persons Unknown & Anor [2019] EWHC 2459 (QB)).

    Remote hearings – the Court of Appeal’s stock-take

    In two decisions handed down on 30 April 2020, Re A (Children) (Remote Hearings) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing : Interim Care Order) [2020] EWCA Civ 584, the Court of Appeal undertook a stock-take of the position in relation to remote hearings. Both were decided by Sir Andrew McFarlane, the President of the Family Division, and Davies and Peter Jackson LJJ.  Re B is primarily of importance for indicating how the pressures of the current situation led to a series of cumulative missteps, including by the Guardian and the judge. In Re A, the Court of Appeal to set out a number of “cardinal points and relevant factors with a view to assisting courts to make appropriate decisions in this changing landscape.” Although the cases concerned children, the principles are equally applicable to cases before the Court of Protection.

    The key points from Re A are as follows:

    Paragraph 3:

    i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.

    ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.

    iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.

    Paragraph 9:

    The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:

    i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

    ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

    iii) Whether the parties are legally represented;

    iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

    v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

    vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

    vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

    viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

    ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

    x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

    The facts of Re A illustrate the challenges faced at the moment, in the context of an individual (the child’s father) with “limited abilities, and some disabilities, which render him less able to take part in a remote hearing. He has been diagnosed as dyslexic. He is unused to reading. He has a short attention span, is emotionally fragile and brittle and quickly becomes exasperated.” The Court of Appeal emphasised that “[t]he concept of fairness and the need for a lay party to ‘engage’ in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner.”  The Court of Appeal also considered problematic the approach proposed by the judge a hybrid one which would have seen the parents giving evidence before him in person in court, but in the absence of their representatives (who would attend by video):

    58. […] Recently, in the judgment given in Re P (A Child: Remote Hearings) [2020] EWFC 32 at paragraph 26 the President stressed the importance of the court being able to see all the parties in the court room. Although that case was specifically directed to the hearing of allegations of Factitious or Induced Illness, the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right. There is, however, a need for caution when the only witness(es) required to attend court are the lay parties when others, for example the key social worker, are not. When a lay party is required to attend court, but his or her advocate is not, the cause for concern at the imbalance in the process must be heightened. Consideration must be given to the potentially exposed position of a witness giving live evidence in front of a judge in the absence of his or her lawyers or any of the other parties and in response to questions asked over a video link. The judge does not appear to have considered whether in this particular case it was reasonable to expect these parents to be placed in that potentially daunting position. When this is placed in the balance alongside the other factors which establish a lack of a fair process it gives them additional weight.

    Court of Protection telephone hearings at First Avenue House

    The Court of Protection will be giving the following instructions in relation to telephone hearings at First Avenue House, responding to uncertainties as to responsibilities and costs.   They are to be read with the Guidance on Remote Hearings published by the Vice-President on 31 March 2020.

    Dear All,

    Please find below dial in details for the telephone hearing listed before judge xyz on date at time.

    JOIN USING YOUR PHONE

    1. Choose the correct phone number to dial:

    – Freephone 0800 917 1956

    – United Kingdom Direct: 0203 463 9741

    – International dial in +44203 463 9741

    1. At the phone prompt, provide the participant passcode: 5########## followed by #

    Important Information

    The charge for the connection to your remote hearing is paid for by HMCTS. However, charges may be applied by your service provider and may vary depending on what contract you currently have with them. It is your responsibility to check whether you will be charged for this connection with your network provider

    The participant passcode is for one time use only.

    [Note, the reference to ‘charges’ in the passage in bold is a reference to the fact that, if the right number is not used, the call will not be free – on some networks, 0800 will be the Freephone number; on others the 0203 number].

    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.

    Court of Protection priorities during COVID-19

    HMCTS has issued its family business priorities for April 2020, i.e. what work must be done, what work will be done, and what work HMCTS will do its best to do.  In relation to the Court of Protection, they are divided as follows:

    Must be done 

    • Urgent applications
    • Applications under Mental Capacity Act 2005, s 16A and s 21A
    • Serious medical treatment cases
    • Deprivation of Liberty
    • Form COP1 Statutory Wills – where person is near end of life.
    • Safeguarding applications via the Office of the Public Guardians

    Work that will be done

    • Gatekeeping and allocation referrals –care
    • Gatekeeping and allocation referrals – private
    • Other family care orders/documents/emails
    • Court of Protection – welfare cases

    Work that “we will do our best to do”

    • Court of Protection –property and affairs