Mrs Justice Parker has in a case decided in March of this year, but only this week placed onto Bailii, made a number of pithy remarks about the conduct of cases before the Court of Protection which practitioners should note with care. The case, Re PB  EWCOP 14, also contains: (1) a discussion of the Court of Appeal decision in PC v City of York Council  EWCA Civ 478 and the ‘causative nexus’; and (2) a number of (to our mind controversial) obiter remarks about the scope of the inherent jurisdiction, both of which will be the subject of discussion in due course on Alex’s website. For present purposes, however, it is the concluding section on ‘Case Management and the Court of Protection’ that is of significance, and we reproduce her remarks in full as her Ladyship clearly intended them to be of general application. Further we consider that they represent an approach to robust case management that is likely in due course to be reflected in amendments to the COPR and/or Practice Directions to bring across into the Court of Protection some of the ‘standardisation’ that is now such a feature of family proceedings.
“126. I stress that I do not wish to criticise the advocates in this case. But I take this opportunity to offer some general guidance derived from my experience in Court of Protection cases from the point of view of the decision maker. This is not a new stance: I have raised the same points in other cases. But over the years some effective steps have been taken to control and manage family cases from which lessons have been learnt. Even more progress is being made under the impetus of the family justice reforms
127. Adoption of a practical approach does not detract from intellectual analysis and rigour. Lord Wilson of Culworth as a puisne judge described himself as “family lawyer of practical disposition”. The reality and practicality of the subject matter of the decision can in my experience sometimes get lost in Court of Protection cases. So can the focus on effective administration of justice. The quest to address arguments of increasing subtlety can, as in this case, paralyse effective decision making by a Local Authority and hamper the ability of the court to deliver a decision. All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources, and other court users. I do not accept that (i) every possible point must be put (ii) the belief of a protected party is relevant to the issue of capacity. As Lord Judge reminded the profession in R v Farooqi and Others  EWCA Crim 1649, it is for counsel to decide what question to ask and not the client. The fact that a client may lack capacity is not a green light for unmeritorious or unrealistic arguments to be put forward.
128. Everything comes at a price. And every penny spent on litigation is in reality (because it all comes out of the public budget) a penny taken away from provision for care. There were many court hearings whether attended or not, at most of which almost nothing of any materiality was achieved. One of the problems may have been lack of judicial continuity. It took many months for a fact finding hearing to take place. The Court is still not in a position to determine best interests. I had to read and reread reams of material and law reports after my return from leave to conclude this judgement.
129. I recognise the importance of this field of litigation. I recognise the need to promote the Convention rights of as well as to protect the vulnerable and the incapacitated. But in cases under the Children Act 1989 equally important human, Convention and protective issues arise. As in the Court of Protection, the court has to have regard to the overriding objective. Experts are not routine and have to be “necessary”, and the necessary expertise may come from the social worker.
130. Baker J in CKK and KK  EWHC 2136 (COP) and Butler-Sloss J in Ms BS v An NHS Hospital Trust  EWHC 429 (Fam)  2 All ER 449 reminded clinicians that a close professional relationship with P might lead them to be drawn to a supportive or emotional rather than analytical approach to capacity. I do not read these comments as supporting the appointment of an “independent” expert as the first line approach before the treating clinician has even set out the reasons behind the certificate of incapacity. Second opinions must be justified: and not just ordered as a matter of routine until there is no reason to doubt the first.
131. I am told Moor J queried the need for further evidence and the time estimate but was assured by the Official Solicitor that this was “reasonable” in order to ensure that the matter could be “properly resolved” by the Court. I cannot imagine that Moor J envisaged that there would be five reports in all, a “schedule of agreement” which was in fact not truly agreed, all of which led to considerable confusion, muddle, and prolongation of the court process. It certainly led to a prolonged examination of the witnesses, as fine distinctions in use of language and formulation of ideas were pursued and analysed.
132. The social care evidence has been crucial. The assessment of capacity is in the end for the Judge on the basis of all the facts (see in particular Baker J in CC & KK & STCC  EWHC 2136 (COP)) echoed by me in YLA & PM MZ COP 1225464. After all a single expert can be challenged by the process of cross-examination.
133. Attempts have been made to encourage if not direct Court of Protection practitioners to comply with basic sensible rules of case management in order to assist the judge. Moor J’s attempt to bring some order to the proceedings failed. The most basic of requirements, to provide a witness time estimate template, was ignored. Thus at the commencement of the hearing I was met with an assertion that there was insufficient time available: particularly for lengthy cross-examination. I had to take counsel in detail through the list of potential witnesses, and the issues which they were to address, in order to create a plan for the hearing of the case. This took up time. All this should have been done beforehand and a late return was no excuse. Specialist counsel had been on board throughout. Ms Street submitted that Dr Barker’s evidence was still so unclear as to require two hours cross-examination by her alone. I managed to shorten this a little. Even so the case proceeded much more slowly than was necessary. In my view this should have been a two day case at most.
134. Before seeking a four day listing the advocates should have provided for Moor J a precise broken down time estimate of what time was required for each witness, submissions and judgment, focused on the actual issues, or likely issues. I insist on this at directions hearings, and I find that I can usually shorten the individual times required, and the overall time estimate, very considerably in the process. Time estimates must be adhered to.
135. A judge cannot easily understand the issues, or give an effective ex tempore judgment, without a chronology of essential dates. I asked for one at the outset. It was produced part of the way though the hearing, obviously in a hurry, and a number of important dates, particular court hearings, were not included. I had to trawl though the applications and orders in the bundle and the many lengthy statements in order to produce the analysis of the history above which I have found so essential here.
136. Fact finding schedules should be produced in a way which makes it easy for the Judge to utilise them as a tool for delivery of judgment. The contents of the document produced were in fact useful, but difficult to use. I hope it is not churlish to complain that it was created in landscape rather than portrait, that when answered the page references were omitted, and there was no space for the judge’s comments. It would have been even more useful if there had been a chronology.
137. The evidence could have been addressed much more shortly. The actual issues raised were:
i) The psychiatric evaluation of PB.
ii) The extent to which TB’s influence or pressure affected capacity: the legal issue arising from that was a matter for the judge.
iii) The extent to which PB’s beliefs may have been causative of her decision making: the interpretation of the words “because of” was for the judge and not the witnesses.
iv) Whether any potential decisions were simply unwise: again as Dr Barker recognised this was really a matter for judicial evaluation.
138. The joint statement should have addressed starkly:
i) Is there impairment or disturbance, if so what is it and what is its effect?
ii) What is the decision to be made?
iii) What is the information necessary to make that decision?
iv) Is the person able to retain, use or weigh, that information and/or communicate that decision?
v) Is there a lack of capacity and if so why?
139. And if the experts do not agree, they must make it clear. If they have not made it clear, they must be asked to do so. If their disagreement does not affect the outcome that is one thing. If they disagree on the fundamental issue, they must say so. The experts are not a jury considering whether they can give a unanimous verdict. There is no duty to “harmonise” views if in reality the experts do not agree. It simply makes the task of the judge more difficult.
140. Practitioners need to ask themselves:
i) What do I really need to challenge?
ii) What does the judge need to know?
iii) What is actually arguable and what is not?
141. Effective steps must be taken to reduce evidence to the essential. In Farooqi Lord Judge emphasised the requirement that cross-examination should proceed by short, focussed question rather than by comment, opinion and assertion. I also note that in The Law Commission lecture given last year Lord Judge stated (as I was taught) that in principle no question should be longer than one line of transcript. In any event, the judge is interested in the answer, not the question.
142. Advocates need to be able to control the witness by the form and structure of their questions and not permit discursive replies or to allow the witness to ramble (particularly if the witness has the tendency to be prolix) . There is no necessity for a long introduction: apart from anything else it may distract and confuse the witness and the judge.
143. Examination must not proceed by way of “exploration” of the evidence: i.e. a debate, or by putting theory or speculation, rather than by properly directed questions which require an answer.
144. This is all the advocates’ responsibility. However hard a judge tries to speed the process, this takes up time and interrupts the flow, and often leads to a debate with the advocate. Also it can give the wrong impression to the lay client about the judge’s view of them or their case.
145. Where two parties have the same case to put, the same points must not be repeated.
146. Finally the advocate needs, if facts are challenged, to put the client’s case.
147. I note and am glad to see that in IM v LM the Court of Appeal approved Peter Jackson J’s decision to determine the issues in a 2 hour hearing. The second opinion psychiatrist was not cross–examined. I am sure that in that case it helped that there had been judicial continuity throughout.
148. I am certainly not suggesting that this case should not have been litigated. It may have been necessary to have two experts. I really cannot tell, because of the way their instruction progressed, which may have led to their lack of precision on paper. But more focus on case management and case progression is essential.”
The Government has said that it will appeal against the decision yesterday to strike down its attempt to introduce a residence test for legal aid.
Ruling on a challenge to the test brought by the Public Law Project, in which the Children’s Commissioner intervened, the Administrative Court unanimously concluded yesterday that the draft regulations currently before parliament could not be enacted by secondary legislation. The court further held that the discrimination against those who could not satisfy the residence test could not be justified solely on the grounds of saving money.
Sir James Munby P, sitting in the Court of Appeal, in Re F (A Child)  EWCA Civ 789, has set out some basic propositions that apply in relation to the determination of habitual residence in cases involving children. Whilst they were stated in the context of the application of Council Regulation 2201/2203 (known as Brussels II revised (BIIR)), they are of wider application and it suggested that (with one exception highlighted below) the core procedural aspects apply equally to the determination of habitual residence by the Court of Protection:
i) Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident.
iii) Jurisdiction under Article 8(1) depends upon where the child is habitually resident ‘at the time the court is seised.’ [note, in cases under Schedule 3 to the MCA 2005, jurisdiction under the MCA 2005 depends upon where the individual is habitually resident at the point when the court determines the question of habitual residence: Re PO; JO v GO  EWHC 3932 (COP) at paragraph 21]
iv) Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others  EWCA Civ 152, paras 47, 58.
v) Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36.
vi) Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36.
There is a further point to which it is convenient to draw attention. If it is, as it is, imperative that the issue of jurisdiction is addressed at the outset of the proceedings, it is also imperative that it is dealt with in a procedurally appropriate manner:
i) The form of the order is important. While it is now possible to make an interim declaration, a declaration made on a ‘without notice’ application is valueless, potentially misleading and should accordingly never be granted: see St George’s Healthcare NHS Trust v S, R v Collins and Others ex p S  Fam 26. If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of ‘Upon it provisionally appearing that the child is habitually resident …’ Once the matter has been finally determined the order can contain either a declaration (‘It is declared that …’) or a recital (‘Upon the court being satisfied that …’) as to the child’s habitual residence.
ii) The court cannot come to any final determination as to habitual residence until a proper opportunity has been given to all relevant parties to adduce evidence and make submissions. If they choose not to avail themselves of the opportunity then that, of course, is a matter for them, though it is important to bear in mind that a declaration cannot be made by default, concession or agreement, but only if the court is satisfied by evidence: see Wallersteiner v Moir  1 WLR 991.”
[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]
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.
On an application to revoke an order made under the 1980 Hague Child Abduction Convention, Mostyn J has held in TF v PJ  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  EWCA Civ 518,  1 WLR 2591 and Mitchell v News Group Newspapers  EWCA Civ 1537,  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]
The Department of Health is seeking views on its proposed changes to the Code of Practice to the Mental Health Act 1983. The Consultation runs until 12th September 2014. Chapter 13 deals with mental capacity and considers the overlap between the MHA and MCA.