Posts

Court of Protection Handbook quarterly update and training event

The first quarterly update to the 5th Edition of the Court of Protection Handbook is now available on the Handbook website.

A reminder also of the training event to be held on 4 February 2026, at which our expert panel Alex Ruck Keene KC (Hon), Sophy Miles, Laura Mannering, and Kate Edwards will guide you through a 90-minute session offering practical guidance on three critical areas for practitioners:

  • Closed Materials Guidance – Understanding its scope and application.
  • A Deputy’s Role and Recent Case Law – The implications of Riddle v NA [2025] EWCOP 39 (T3) and what it means for deputies.
  • Enforcing COP Orders – Managing enforcement challenges, including police involvement and forced entry.

The session will end with an interactive Q&A session.

Designed for those working in the Court of Protection, this session is designed to keep you ahead of the curve and demonstrate how the Handbook continues to evolve between editions.

To book, please see here (note that this is not a free event – apologies for the previous suggestion that it was, although delegates will also receive a code for 10% off the book so…)

LAG Court of Protection Handbook in Practice – online training event on 4 February 2026

Court of Protection Handbook in Practice

Our expert panel Alex Ruck Keene KC (Hon), Sophy Miles, Laura Mannering, and Kate Edwards will guide you through a 90-minute session offering practical guidance on three critical areas for practitioners:

  • Closed Materials Guidance – Understanding its scope and application.
  • A Deputy’s Role and Recent Case Law – The implications of Riddle v NA [2025] EWCOP 39 (T3) and what it means for deputies.
  • Enforcing COP Orders – Managing enforcement challenges, including police involvement and forced entry.

The session will end with an interactive Q&A session.

Designed for those working in the Court of Protection, this session is designed to keep you ahead of the curve and demonstrate how the Handbook continues to evolve between editions. Delegates will also receive a code for 10% off the book!

To book, please see here.

Court of Protection Handbook 5th edition – and updated website

The new (2025, 5th) edition of the Court of Protection Handbook is now available, and accompanying website has been updated (not least to reflect the new jazzy green cover). Amongst other delights are:

(1) an updated sample chapter (5) on whether making an application is appropriate;

(2) updated sample pre-issue letter, witness statement, position statement and letters of instruction to an independent social worker and an independent psychiatrist;

(3) a new sample letter of instruction to a psychiatrist asked to produce a s.49 report and guidance on how to complete a s.49 report;

(4) materials already appearing on the updates pages to reflect developments since the book was published;

(5) a bonus PD which had slipped apparently everyone’s knowledge about cases involving Welsh speakers.

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.

    CoP Handbook – a new edition on the way!

    We would normally be publishing an update covering relevant developments over the past 3 months on this page, but the team (with some exciting new additions) are hard at work updating the 4th edition to a new, expanded, 5th edition. So bear with us if the page is not updated – but please do get in touch if you think that there are things that the 5th edition needs to cover, by email to alex.ruckkeene@39essex.com. We can’t promise we will be able to, but now is the time to ask!

    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.