Category: Uncategorized

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.

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.

Serious Medical Treatment – Practice Guidance

The Vice-President of the Court of Protection, Hayden J, has published guidance on serious medical treatment applications in the Court of Protection.   It covers (1) situations in which consideration must be given as to whether an application should be made and (2) the court’s expectations in relation to the making and progress of an application.  It is expressly designed to operate until such time as it is superseded by the revised Code of Practice to the Mental Capacity Act. 

Court of Protection fees refund

The Ministry of Justice has introduced a refund scheme relating to court fees, including the Court of Protection.  For the Court of Protection, the scheme relates to those who paid court fees between 1 April 2016 and 31 March 2018 for:

  • applications
  •  appeals

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Capture1In addition, if you paid a hearing fee between 1 April 2017 and 31 March 2018, you may also be eligible for a refund.

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Capture2For more details, see here. and the guidance document here.

Queries regarding the scheme should be directed to the helpdesk as follows:

Telephone: 0300 1233077

Email: Civil_Refunds@justice.gov.uk.

3rd edition of the Court of Protection Handbook now published!

The 3rd edition of the Court of Protection Handbook is now published, with the addition of Nicola Mackintosh QC (Hon) to the team of Kate Edwards, Professor Anselm Eldergill, and Sophy Miles.  The book addresses in detail the practice and processes of the Court of Protection – across the whole range of its work – in terms that are aimed not only at lawyers but also to the increasing numbers of people who either by choice or otherwise are involved in proceedings before the Court of Protection without legal help.

The book begins with an overview of the Mental Capacity Act 2005 and the Court of Protection, before turning to a step-by-step guide through the processes of preparing and making an application, funding and representation issues, preparing for and appearing at hearings, evidence, costs, enforcement and appeals.

The third edition has been fully updated and includes coverage of the Liberty Protection Safeguards introduced by the Mental Capacity (Amendment) Act 2019.   The accompanying website can be found here.

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.

LAG Community Care Law Conference 2018

Com Care Conf

Keynote address – Sir James Munby
Early-bird offer – Save £50 on delegate fees by booking before 28 September.
LAG is delighted to announce that our 2018 conference will take place on 12 October 2018, in London.
It has been a busy time since our last conference was held in February 2017. Local authority finances, subjected to continuing austerity measures, have continued to be squeezed with councils implementing harsh cuts in spending. The long-awaited green paper on adult social care, due to be published in the summer of 2018, was postponed until the autumn. The Mental Capacity (Amendment) Bill, which will overhaul the current Deprivation of Liberty Safeguards (DoLS), was introduced in July 2018 with an intention to simplify the process and maintain adequate safeguards whilst saving local authorities an estimated £200m a year.
The LAG Community Care Law Conference 2018 will bring together leading experts in the field (including Court of Protection Handbook author Alex Ruck Keene) to provide an overview of these legal and policy developments. It will also look forward, exploring what the next 12 months are likely to bring.
As well as keynote addresses and panel discussions, the conference will provide short, practical ‘community care masterclasses’ – highly informative and interactive, they will promote excellence in the field.
Delegates will receive a course pack with notes, including all breakout sessions.
The early-bird price for all bookings received by 28 September is:
£200 + VAT  for the public and private sectors
£150 + VAT for the voluntary, charitable and not-for-profit sectors
Book online
Download the conference flyer

“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.