Post-Cheshire West Judgment Released

The President today released a preliminary judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 25 setting out briefly his answers to those of the 25 questions he posed at an earlier hearing and which require an early decision. It concentrates on the issues directly relevant to what he calls the ‘streamlined’ process. It sets out no more than the broad framework of what the President considers is required to ensure that the ‘streamlined’ process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the Rules Committee.

A further judgment will follow in due course, elaborating on his reasons for deciding as he has and dealing with the questions – in particular questions (6), (8) and (10) – not dealt with in this judgment.

The judgment sets out a pretty detailed list of what information the new application forms should direct that applicants provide including that professional medical opinion will be necessary – a GP report may suffice, but he has not gone as far as saying that e.g. a social worker can confirm a long-standing diagnosis.

On the questions of greatest concern to practitioners:

The President held that P does not need to be a party, but he has made very clear that P must be able to present their case properly and satisfactorily and participate – and he has delegated how that should happen to the Rules Committee .

 

  1. What the Convention requires is that P be able to participate in the proceedings in such a way as to enable P to present their case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, and in my judgment it can in principle be met without P being joined as a party, there is no need for P to be a party.
  2. If P is a party to the proceedings, P must have a litigation friend. If P is participating other than as a party, there is no need for a litigation friend.
  3. These are all matters which require urgent consideration by the Committee as part of its more general review of Rule 73(4)

A LF does not need to act through a solicitor to conduct litigation, but requires the permission of the court to act as an advocate on behalf of P: in both of these conclusions he has (at this stage) followed Gregory v Turner.

All applications must be made to a judge and certain factors may trigger the need for an oral hearing although this is not needed in all cases.  These include:

  • Any contest, whether by P or by anyone else, to any of the matters referred to in paragraphs 35(ii)-(vii) below.
  • Any failure to comply with any of the requirements set out in paragraph 35(viii) below
  • Any concerns arising out of information supplied in accordance with paragraphs 35(ix), (xiii) and (xiv) below
  • Any objection by P.
  • Any potential conflict with any decision of the kind referred to in paragraph 35(x) below.
  • If for any other reason the court thinks that an oral hearing is necessary or appropriate.”

“Bulk” applications are not lawful.  (para 38-9).

Reviews should be annually unless otherwise required; must be judicial and may take place on the papers, whether or not there has been an earlier oral hearing, raising the possibility of a process where there is no hearing at all and where P would not have the benefit of legal aid which requires an oral hearing.

Update: together with Neil Allen and Tor Butler-Cole, Alex has produced this document which provides a practical guide to such applications (and seeks to answer some of the questions arising from the judgment).

Court of Protection Rules Committee convened

The Court of Protection Rules Committee is an ad hoc committee set up by the President of the Court of Protection and chaired by the Vice President.  The Committee is to review the Rules in light of recent developments including the Supreme Court judgment in Cheshire West.   A previous committee had recommended changes to the Rules in 2010, the majority of which have yet to be implemented; further changes subsequently (including amendments to the Civil Procedure Rules with effect from 1 April 2013) have made the need for changes to the Court of Protection Rules even more pressing.   Further updates will be provided as and when possible.

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]