Category: Case comments

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

What’s the permission threshold?

In Re D (A young man) [2019] EWCOP 1, Mostyn J had to consider a question that had previously been the subject of only very limited judicial consideration, namely the test for permission under s.50 MCA 2005. The case concerned a young man, D, aged 20, with autism. He had been looked after by his father and his stepmother, C, since the age of 3.

D’s mother, who was subject to a civil restraint order, applied for permission to make a substantive application concerning the nature and quantum of her contact with D. Mostyn J granted her leave under the terms of the civil restraint order to make the application for permission to make the application itself.

Under the terms of ss.50(1) and (2) MCA 2005, the mother needed permission to make a substantive application as she did not fall into one of the categories where permission is not required set out in section 50(1). Section 50(3) provides:

In deciding whether to grant permission the court must, in particular, have regard to –

(a) the applicant’s connection with the person to whom the application relates,

(b) the reasons for the application,

(c) the benefit to the person to whom the application relates of a proposed order or directions, and

(d) whether the benefit can be achieved in any other way.

Mostyn J noted that:

4.  A permission requirement is a not uncommon feature of our legal procedure. For example, permission is needed to make an application for judicial review. Permission is needed to mount an appeal. Permission is needed to make a claim under Part III of the Matrimonial and Family Proceedings Act 1984. In the field of judicial review, the permission requirement is not merely there to weed out applications which are abusive or nonsensical: to gain permission the claimant has to demonstrate a good arguable case. Permission to appeal will only be granted where the court is satisfied that the appellant has shown a real prospect of success or some other good reason why an appeal should be heard. Under Part III of the 1984 Act permission will only be granted if the applicant demonstrates solid grounds for making the substantive application: see Agbaje v Akinnoye-Agbaje [2010] UKSC 13 at [33] per Lord Collins. This is said to set the threshold higher than the judicial review threshold of a good arguable case.

5. There is no authority under section 50 giving guidance as to what the threshold is in proceedings under the 2005 Act. In my judgment the appropriate threshold is the same as that applicable in the field of judicial review. The applicant must demonstrate that there is a good arguable case for her to be allowed to apply for review of the present contact arrangements.

The case had had a very lengthy and unhappy history, contact arrangements between D (at that stage a child) and his mother having been fixed some seven years previously. Having rehearsed the history, the possible scope of proceedings before the Court of Protection and (in his view) the irrelevance of the fact that D had turned 18, Mostyn J held that he applied:

13. […] the same standards to this application as I would if I were hearing an oral inter partes application for permission to seek judicial review. I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted. Fundamentally, I am not satisfied that circumstances have changed to any material extent since the contact regime was fixed seven years ago and confirmed by me two years ago. I cannot discern any material benefit that would accrue to D if this permission application were granted. On the contrary, I can see the potential for much stress and unhappiness not only for D but also for his family members if the application were to be allowed to proceed.

Mostyn J therefore refused the mother’s application for permission.

Comment

Being pedantic, Mostyn J was not correct to say that there was no authority on s.50.   In 2010, Macur J had in NK v v VW [2012] COPLR 105 had refused permission on the basis that she considered that “section 50(3) and the associated Rules require the Court to prevent not only the frivolous and abusive applications but those which have no realistic prospect of success or bear any sense of proportional response to the problem that is envisaged by NK in this case.” Fortunately, not least for procedural enthusiasts, that approach is consistent with the more detailed analysis now given by Mostyn J.

“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.

 

 

 

HRA claims, the Court of Protection and the statutory charge: certainty at last

[We are very happy to publish this guest post from Ragani Lindquist of the Office of the Official Solicitor]

After years of uncertainty and inconsistency over the application of the statutory charge in respect of Human Rights damages claims, the Legal Aid Agency has finally put its position in writing within the adult welfare context, namely that the application of the charge in respect of the welfare proceedings in the Court of Protection can be avoided by ensuring that damages are not pursued or awarded within the welfare proceedings and by keeping the costs of pursuing the damages claim separate. 

This follows hot on the tail of a published position statement concerning the position in family proceedings, where a similar approach is now being taken.  This is a significant shift from the previous indication that, if the claim was in any way linked to the publicly funded welfare/s21A proceedings, a charge from the costs of the original (usually non-means, non-merits tested) proceedings was to attach to any damages recovered, unless costs were obtained for both sets of proceedings.  Given costs orders are rare in welfare proceedings, historically, for a number of claimants, it was often after damages had been ordered or negotiated within the original proceedings, that it became apparent that the charge would effectively swallow up the damages.  This left vulnerable clients in a situation where there was no effective remedy for a serious human rights breach.   This change and clarification in position is welcomed; the LAA’s letter sets out the position in more detail.  Practitioners will note the reference to following the guidance provided by Keehan J in H v NCC and LAA [2017] EWHC 282, which suggests among other things applying for a separate legal aid certificate for the damages claim (paragraphs 115-117).

The Official Solicitor’s office is grateful to all of those involved in assisting to achieve this certainty – there are too many to name them all but particular thanks must go to Chris Buttler from Matrix, Anna Moore from Leigh Day and Andrew Bowmer from Miles & Partners.