MN (Adult)

This is an appeal from a decision of Eleanor King J, as she then was, sitting in the Court of Protection on 20 November 2013. The judge refused permission to appeal. Permission was also refused by Macur LJ on the papers on 21 February 2014 but was granted, on renewal, by Floyd LJ at an oral hearing on 25 June 2014: ACCG and anor v MN [2014] EWCA Civ 1176.

The facts are fully set out in Eleanor King J’s judgment: ACCG and another v MN and others [2013] EWHC 3859 (COP), [2014] COPLR 11. Her judgment also appears on the BAILII website, where it is publicly available, free, to all. For present purposes a very brief summary suffices.

MN, born in 1993, is a young man who suffers from profound disabilities and lacks capacity to make relevant decisions for himself. When MN was 8 years old he was made the subject of a care order on the application of the local authority, ACC. Shortly before his 18^th birthday the court approved MN’s move from his residential children’s placement to an adult residential placement, RCH, where he continues to live. The clinical commissioning group, ACCG, took over responsibility from ACC for the funding of MN’s placement at RCH when he turned 18. The present proceedings were brought by ACC and commenced on 25 August 2011. MN’s parents, Mr N and Mrs N, accept, reluctantly, that MN should live at RCH, where they have regular contact with him, but their aspiration remains that he should return to live with them at home.

By the time the matter came on for hearing before Eleanor King J, the issues had narrowed to disputes (i) as to whether Mrs N should be permitted to assist in MN’s intimate care when visiting him at RCH and (ii) as to whether contact should also take place at Mr and Mrs N’s home. As to (i), RCH was not willing for this to be done. As to (ii), ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN was to have home contact.

Mr and Mrs N contended that the judge should embark on a contested ‘best interests’ trial in relation to both issues. The judge summarised ACCG’s position as follows (paras 20-21):

“[20] The ACCG’s case is that in a welfare case such as the present, the court is limited to choosing between the available options. It does not, they submit, have the power to order the applicant to produce other options, although it may make inquiries of the first applicant of other potential options. There is, say ACCG, only one residential package which it is prepared to fund. It is clear, they submit that the most recent offer of contact (unrestricted at RCH plus once a month in the community), affords the parents ample opportunity to see MN. The provision offered they submit, discharges their statutory duties towards MN. The ACCG fund one visit each week and the visit into the community.

[21] It follows that the ACCG’s case is that they will not fund contact at the parents’ home and contact there is not therefore an available option in this case.”

The judge was alert to what she described (para 34) as the:

“danger of a blurring of the distinction as between the Court of Protection’s statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide.”

After hearing full legal argument, the judge concluded (para 87) as follows:

“In all the circumstances, I accept the submission of ACCG that contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents’ house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s 4 MCA 2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests.”

Both Mr and Mrs N – separately – appeal. I will come to consider their grounds of appeal in more detail in due course, but essentially they challenge the correctness in law of the judge’s approach.

The appeal raises fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.

I turn therefore to the law.

The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said (page 795):

“Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code.”

He continued (page 797):

“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”

Lord Scarman was not of course disputing the High Court's power of judicial review under RSC Ord 53 (now CPR Pt 54) when exercised by what is now the Administrative Court: he was disputing the High Court’s powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said (page 795):

“The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.”

It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.

It follows from this that a child, even if a ward of court, has no special privileges, nor has the family court any power to obtain for a child access to resources which would not otherwise be available. As Millett LJ, as he then was, put it in In re R (Wardship: Restrictions on Publication) [1994] Fam 254, 271, “the wardship court has no power to exempt its ward from the general law, or to obtain for its ward rights and privileges not generally available to children who are not wards of court.” The same point was made by the House of Lords in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413, a housing case. As Lord Hoffmann said (para 8):

“A child may have needs which a parent cannot meet. It may be in the interests of a child to reside for substantial periods with his father if the father has suitable accommodation. If he has not, the court has no power under the 1989 Act, whether in exercise of its public or private jurisdiction, to conjure such accommodation into existence.”

Exactly the same principle applies in relation to an incapacitated adult. As Baroness Hale of Richmond said in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67, [2014] AC 591, para 18:

“This Act [the Mental Capacity Act 2005] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity.”

She added:

“Of course, there are circumstances in which a doctor’s common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.”

She returned to the point (para 45):

“The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want.”

Drawing on this jurisprudence, in A v A Health Authority and Another; In Re J (A Child); R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, para 53, I summarised matters thus:

“It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In re C (A Minor) (Wardship: Jurisdiction) [1991] 2 FLR 168 (independent school refusing to admit ward of court). The position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private law powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to the principles of substantive public law” (emphasis in original).

I illustrated the point by an example (paras 91-93):

“91

… Suppose that the question is whether or not a child should have potentially life-saving heart surgery. And let us suppose that on this central issue there is a dispute between the child or her parents on the one hand and the NHS hospital providing the treatment on the other. By what test is the dispute to be resolved? Is the determining criterion to be the judge’s perception of what is in the child’s best interests? Or something else? The answer, in my judgment, is that it all depends on the precise nature of the dispute between the parties and on what precisely it is that the judge is being asked to do.

92

If the NHS hospital is willing to provide the treatment, and the only obstacle to the operation going ahead is the refusal of the child or her parents to give the necessary consent, then the matter will be decided by the judge applying the best interests test. Notwithstanding that the NHS hospital is a public authority operating within the statutory framework of the National Health Service Act 1977 the dispute contains no public law element. It is one wholly within the realm of private law. It should accordingly be resolved in the Family Division in what can conveniently be called private law proceedings (whether brought under the inherent parens patriae jurisdiction or under Part II of the Children Act 1989 being neither here nor there) and by reference to the usual Family Division best interests test.

93

If, on the other hand, the NHS hospital is not willing to provide the treatment, because of a lack of resources or because it considers that other patients or other forms of treatment ought to have priority, then the matter cannot be decided by a mere application of the best interests test. The dispute is not a private law dispute. It is one within the realms of public law and, it may very well be, human rights law. It must be resolved, whether in the Family Division or in the Administrative Court, and whether in judicial review proceedings or in some other form of proceedings, by reference to public law criteria” (emphasis in original).

I concluded as follows (paras 95-97):

“95

Now what is the essential difference between the two types of case? … the crucial distinction goes to the identity of the decision-maker whose decision is being scrutinised by the judge and, crucially, to what precisely it is that the judge is being asked to do.

96

If the decision which the judge is being asked to review, consider, endorse or overturn, as the case may be, is that of the patient (or her parent) refusing to accept treatment which the health authority or the NHS hospital is willing to provide, then the dispute is a private law dispute which falls properly within the inherent parens patriae jurisdiction and is to be resolved by reference to the best interests test. If, on the other hand, the decision which the judge is being asked to review, consider, endorse or overturn, as the case may be, is that of the public authority exercising its statutory discretion, then the dispute properly falls to be considered by reference to public law principles.

97

Putting the point very shortly, if the task facing the judge is to come to a decision for and on behalf of a child or incompetent adult then the welfare of that person must be the paramount consideration. If the task for the judge is to review the decision of a public authority taken in the exercise of some statutory power then the governing principles are those of public law.”

So far as I am aware, no-one has ever disputed the analysis in A v A Health Authority and I see no reason to depart from it. I emphasise that it applies whatever the nature of the proceedings in the family court or the Family Division; it applies in private law proceedings under Part II of the Children Act 1989, in public law proceedings under Part IV, and in wardship or other proceedings under the inherent jurisdiction. Moreover, it is equally applicable where ‘best interests’ proceedings in relation to an incapacitated adult are being heard, either in the High Court under the inherent jurisdiction or in the Court of Protection under the Mental Capacity Act 2005. A v A Health Authority itself, it may be noted was a judgment given in relation to two different cases, one relating to an incapacitated adult, the other to a child.

What for convenience I call the A v Liverpool principle arises in many different and varied contexts. There are many cases to be found in the reports where a child is affected by some decision of a public official or a public body. Examples include: an education authority (see In re B (Infants) [1962] Ch 201 and In re D (A Minor) [1987] 1 WLR 1400); the Secretary of State for the Home Department in relation to a child subject to immigration control (see In re Mohamed Arif (An Infant) [1968] Ch 643); a local authority (as in A v Liverpool City Council [1982] AC 363); an adoption agency (see In re W (A Minor) (Adoption Agency: Wardship) [1990] Fam 156); the Secretary of State for Defence in relation to a boy soldier (see In re JS (A Minor) (Wardship: Boy Soldier) [1990] Fam 182); and the Secretary of State for the Home Department in relation to a baby living with its mother in a prison mother and baby unit (see CF v Secretary of State for the Home Department [2004] EWHC 11 (Fam), [2004] 2 FLR 517, and London Borough of Islington v TM [2004] EWHC 2050 (Fam)). More recent cases relate to police decision-making in connection with police protection (see Re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam), [2010] 1 FLR 1026) and the statutory duties of housing authorities (see Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413).

The A v Liverpool principle necessarily carries with it two corollaries.

The first is the point put very pithily by Lord Hoffmann in Holmes-Moorhouse, para 8:

“The court’s decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be.”

Baroness Hale of Richmond put it this way (para 30):

“When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: the Children Act 1989, section 1(1). This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist.”

She continued (para 38):

“Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so … The courts cannot even do this in care proceedings … A fortiori they cannot do this in private law proceedings between the parents. No doubt all family courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration. But we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. It is different, of course, if we have good reason to believe that the necessary resources will be forthcoming in the foreseeable future. The court can always ask the local authority for information about this.”

It follows, in my judgment, that in each case the correct approach was adopted by Charles J in Re S (Vulnerable Adult) [2007] 2 FLR 1095, para 11 (“He would have to choose between what was practically available and thus what was on offer”) and in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, para 22 (“in exercising a welfare or best interests jurisdiction (to my mind, whether under the Children Act 1989, under the inherent jurisdiction, or under the Mental Capacity Act 2005), the court is choosing between available options”), and by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, para 20 (“where the only candidates for funding are the statutory authorities, the Court of Protection (being unable to take a judicial review type approach), is largely restricted to the option(s) which the two statutory authorities put forward”), and again in Re SK (Impact of Best Interests Decision on Queen’s Bench Proceedings) [2013] COPLR 458, para 10 (“currently available or reasonably foreseeable options”). As the Deputy Judge said in R (Chatting) v (1) Viridian Housing (2) London Borough of Wandsworth [2012] EWHC 3595 (Admin), [2013] COPLR 108, para 99, “the fact that Miss Chatting is mentally incapacitated does not import the test of ‘what is in her best interests?’ as the yardstick by which all care decisions are to be made.”

I should also refer at this point to Charles J’s judgment in A Local Authority v PB and P (By his Litigation Friend the Official Solicitor) [2011] EWHC 2675 (COP), [2012] COPLR 1, following the final hearing of the case where he had earlier given the judgment referred to in the previous paragraph. He said this (paras 21-22):

“[21] As explained in my earlier judgment … the court has to choose between available alternatives. I therefore directed the local authority to make a decision whether it was prepared to provide a package of support for D (and his mother) if he moved to live with his mother and, if so, what that would be. The purpose of that direction was to make clear what the available options were absent either a change of mind by the local authority or a successful judicial review or human rights challenge.

[22] The local authority confirmed that it was not prepared to offer a supported placement at home but would provide one to one support during the day. On advice, the mother confirmed that she was not going to attempt to judicially review that decision, and she has not mounted a human rights challenge to it. In my view, the advice leading to that stance was plainly right because on the common ground and undisputable evidence no public law or human rights challenge is arguable.”

That, if I may say so, was the correct approach.

Related to this is a procedural point explained by Lord Hoffmann in Holmes-Moorhouse, para 17:

“In my opinion the Court of Appeal was wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It will obviously be helpful to a court, in dealing with the question of where the children should reside, to know what accommodation, if any, the housing authority is likely to provide. It should not make a shared residence order unless it appears reasonably likely that both parties will have accommodation in which the children can reside. But the provision of such accommodation is outside the control of the court. It has no power to decide whether the reasons why the housing authority declines to provide such accommodation are good or bad. That is a matter for the housing authority and, if necessary, the county court on appeal. Likewise, it is relevant for the housing authority to know that the court considers that the children should reside with both parents. But the housing authority is not concerned to argue that the court should not make an order to this effect. The order, if made, will only be part of the material which the housing authority takes into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other.”

As we have seen, Baroness Hale in Holmes-Moorhouse, para 38, recognised that the family court may try to persuade a public authority to act in what the court considers to be the best interests of the child. However, and this is the second corollary of A v Liverpool, there are limits to how far the family court can go. For, as Baroness Hale continued (para 39):

“the family court should not use a residence order as a means of putting pressure upon a local housing authority to allocate their resources in a particular way.”

This principle, that the family court must not allow itself to be used to put pressure on a public authority, is well-established and is conveniently illustrated by a sequence of cases where the child was subject to immigration control. In R v Secretary of State for Home Department ex p T [1995] 1 FLR 293, Hoffmann LJ, as he then was, said (page 296):

“in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the [family] court will not allow itself to be used as a means of influencing the decision of the Secretary of State.”

In Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921, care proceedings properly commenced by a local authority had (para 64) ceased to serve any useful purpose in circumstances where there was no legitimate advantage to the children in continuing the proceedings. The proceedings were dismissed because (para 67) the parents’ only purpose in seeking to persuade the court to continue the proceedings was simply to frustrate the family’s return by the Secretary of State to their country of origin. They were seeking to use the court as a means of influencing the Secretary of State and that was an abuse of process.

In S v S [2008] EWHC 2288 (Fam), [2009] 1 FLR 241 I discharged wardship proceedings where relief was being impermissibly sought (para 24) for the purpose of putting pressure on the Secretary of State as to the exercise of her immigration control powers. It was, I said, an abuse of the wardship process, the purpose not being directly to enhance the welfare of the child but to put pressure on the Secretary of State.

Although it is impermissible for the court to exercise its powers so as to interfere with the statutory powers of a public authority, there is no objection to the court exercising its jurisdiction in order to assist a public authority. As Woolf LJ, as he then was, put it in In re D (A Minor) [1987] 1 WLR 1400, 1413:

“… there is no reason whatever why the court should refrain from exercising its jurisdiction when it is desirable for it to do so in order to assist a local education authority to perform its statutory duties. It is only if the effect of exercising its powers would be to create a conflict between the role of the court and the role of the education authority, or the risk of such conflict, that the court should decline to intervene.”

Addressing the same point in A v A Health Authority, I distinguished (para 115) between jurisdiction being invoked legitimately and properly, even if in part to supplement public authority decision-making, and jurisdiction being invoked illegitimately in conflict with or to oust a public authority.

Finally, I need to consider the position where the court – that is, in relation to a child the subject of care proceedings, the family court, or, in relation to an adult the subject of personal welfare proceedings, the Court of Protection – is being asked to approve the care plan put forward by the local or other public authority which has brought the proceedings. I start with care proceedings under Part IV of the 1989 Act.

It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.

That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.

In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

“be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

Rigorous probing, searching questions and persuasion are permissible; pressure is not.

I should add that the court has the power to direct the local authority to file evidence or to prepare and file a further plan, including, if the court directs, a description of the services that are available and practicable for each placement option being considered by the court. The local authority is obliged to do so even though the plan’s contents may not or do not reflect its formal position, for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431. As Ryder LJ said (para 79):

“It is part of the case management process that a judge may require a local authority to give evidence about what services would be provided to support the strategy set out in its care plan … That may include evidence about more than one different possible resolution so the court might know the benefits and detriments of each option and what the local authority would or would not do. That may also include requiring the local authority to set out a care plan to meet a particular formulation or assessment of risk, even if the local authority does not agree with that risk.”

Despite its best efforts, the court may, nonetheless, find itself faced with a situation where it has to choose the lesser of two evils. As Balcombe LJ said in Re S and D (Children: Powers of Court) [1995] 2 FLR 456, 464, the judge may, despite all his endeavours, be faced with a dilemma:

“if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children’s best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent.”

Balcombe LJ continued:

“It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him … then that is the unfortunate position he has to face.”

In practice courts are not very often faced with this dilemma. Wilson J, as he then was, recognised in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119, para 51, that “a damaging impasse can develop between a court which declines to approve their care plan and the authority which decline to amend it.” But, as he went on to observe:

“The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court) [1995] 2 FLR 456. For good reason, there are often, as in this case, polarised views about the optimum solution for the child: in the end, however, assuming that they feel that the judicial processing of them has worked adequately, the parties will be likely to accept the court’s determination and, in particular, the local authority will be likely to amend their proposals for the child so as to accord with it … In the normal case let there be – in the natural forum of the family court – argument, decision and, sometimes no doubt with hesitation, acceptance: in other words, between all of us a partnership, for the sake of the child.”

In my judgment exactly the same principles as apply to care cases involving children apply also to personal welfare cases involving incapacitated adults, whether the case is proceeding in the Family Division under the inherent jurisdiction or, as here, in the Court of Protection under the Mental Capacity Act 2005. The fact that a care plan is now part of the statutory process in relation to care cases involving children, whereas there is no corresponding statutory requirement for a care plan in an adult personal welfare case is neither here nor there. Care plans are a routine part of the process in adult cases.

The point arose in Re MM; Local Authority X v MM (By the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, an inherent jurisdiction case in the Family Division. The local authority’s plan in that case contemplated MM living in accommodation selected and regulated by the local authority and having only limited and moreover supervised contact with her long term partner, KM. I found that to be a breach of MM’s rights under Article 8 of the European Convention. I said this (para 163):

“If the local authority seeks to impose on MM a regime which in fact involves a breach of her Art 8 rights – and that … I agree, is the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Art 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM’s life is … disproportionate. And in my judgment it involves a breach of her rights under Art 8.”

I went on (para 166):

“In the first instance it is for the local authority to prepare a care plan spelling out in appropriate detail and precision what it proposes to do in order to modify the current arrangements in such a way as to avoid a breach of Art 8 of the European Convention; specifically, if it wishes to pursue its plan for MM to remain at her current placement, what it proposes to do in order to facilitate her sexual relationship with KM. The care plan can then be considered by the court. The court cannot be compelled to accept the local authority’s plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8.”

I directed (para 167) that the local authority was to file a care plan and evidence in support setting out its final proposals and directed that the matter was to be restored for further consideration of the care plan.

It will be noted that I did not assert, and I do not assert, any right in the court to compel a local authority to accept the plan which commends itself to the court. If there is an impasse, then the court must select the lesser of the two evils: in a case like MM, endorsing the local authority’s plan or dismissing the proceedings.

In the event, the local authority provided a revised care plan which met my concerns and which I was happy to endorse: Re MM (An Adult) [2007] EWHC 2689 (Fam), [2009] 1 FLR 487.

Lying behind all this is a fundamentally important point which is so often repeated in the case-law that there is no need to cite extensive authority for it though it needs always to be borne in mind and cannot be repeated too often. I confine myself to what Lord Hoffmann said in Holmes-Moorhouse (para 9):

“The question for a housing authority under Part VII of the 1996 Act is not the same. In deciding whether children can reasonably be expected to reside with a homeless parent, it is not making the decision on the assumption that the parent has or will have suitable accommodation available. On the contrary, it is deciding whether it should secure that such accommodation is provided. And this brings in considerations wider than whether it would be in the interests of the welfare of the children to do so. The fact that both the court and the housing authority apply criteria which look superficially similar – the court deciding what would be in the best interests of the child and the housing authority deciding whether the children can reasonably be expected to reside with the father – does not mean that the questions are the same. The contexts are quite different. The housing authority is applying the provisions of a Housing Act, not a Children Act. The question of whether the children can reasonably be expected to reside with him must be answered in the context of a scheme for housing the homeless. And it must be answered by the housing authority, in which (subject to appeal) the statute vests the decision-making power.”

It is easy to fall into the trap of thinking that, because, typically, both the court and some other public authority are concerned with the welfare or well-being of a child or incapacitated adult, they are viewing the matter from the same perspective and applying the same principles. Neither is so. The perspective of the court – the Court of Protection or the family court – is a narrow focus on the welfare of the individual child or adult. The perspective of the public authority is necessarily different and much wider. Often, the public authority, as with the authorities involved in the present case, will have to have regard to the interests of a very wide group of service users who are, in the nature of things, competing with each other for the allocation of often scarce resources. Sometimes, as in the case of the Secretary of State in an immigration case, the public authority has to balance an individual’s private interest against a wider public interest, in the immigration context the public interest in a proper system of immigration control. Flowing from this, the principles that have to be applied by the court and the public authority will almost inevitably differ.

In the present case, the duty of the Court of Protection, in accordance with section 1(5) of the Mental Capacity Act 2005, is to act in the person’s “best interests.” In contrast, the duty of ACCG, in accordance with section 3(1) of the National Health Service Act 2006, is to:

“arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility –

(a)

hospital accommodation,

(b)

other accommodation for the purpose of any service provided under this Act,

…

(e)

such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service …” (emphasis added).

I draw attention to the words I have emphasised.

I conclude this part of my judgment with a reference to what Charles J said in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, para 29. Having observed that in Court of Protection cases the public authorities involved, the Official Solicitor and the court, need to be alert to and address jurisdictional points at an early stage, Charles J continued:

“One of the reasons they need to be alert to the points is to seek to ensure that Court of Protection proceedings are not utilised for an inappropriate purpose. Looked at only from the perspective of the individuals involved, proceedings of this type concern emotional issues and the parties should not suffer distress from proceedings that are inappropriate and/or which cannot achieve the result they want. Money also, of course, comes into play and the court should not spend time (often a number of days) considering what it thinks is in the best interests of P, only to be met by the relevant public authorities saying at the end of the day:

‘We are not obliged to and are not going to act in accordance with a best interests declaration or order under s 16 Mental Capacity Act 2005 if it involves the provision of services that we have decided not to provide.’”

I agree with every word of that.

So much for the law. I turn to Eleanor King J’s judgment.

The judge in a detailed and careful judgment first set out the statutory regime governing personal welfare cases in the Court of Protection, before embarking upon an analysis of the authorities, going through many of the cases I have already referred to: A v A Health Authority, Aintree, Re S (Vulnerable Adult), Holmes-Moorhouse, the two judgments of Charles J in A Local Authority v PB, and the two judgments of Bodey J in Re SK.

The judge noted (para 39) the submission by Ms Kerry Bretherton on behalf of Mr and Mrs N that Holmes-Moorhouse, being a Housing Act case, was of “limited use.” Unsurprisingly, and in my judgment entirely correctly, the judge disagreed and indeed rightly described Baroness Hale’s observations in the passages I have already quoted as being (para 40) “of particular assistance.”

Having concluded her survey of the authorities, the judge turned to Ms Bretherton’s key submission, which she described as follows (para 51):

“Miss Bretherton submits that the proper course is now for the court first to decide what is in MN’s best interests in relation to contact to include a consideration of contact at his parents’ home, and only then, having made that decision, consider the funding options. If funding is not made available in accordance with the court’s best interests decision, the parents can thereafter, if so advised, seek to challenge that decision by way of judicial review. Miss Bretherton therefore says:

Best Interests – first; Judicial Review – second.”

The core of the judge’s reasoning is to be found in this passage (paras 51-53):

“[51] … This is a submission which is undoubtedly against the trend of the authorities as set out above.

[52] With respect to Miss Bretherton, and reminding myself that Holmes-Moorhouse was decided against a different legislative backdrop, to adopt such an approach could be said to fall into precisely the trap deprecated by Baroness Hale at para [39] of her judgment cited above; the Court of Protection would potentially be using a best interests decision as a means of putting pressure upon the ACCG to allocate their resources in a particular way and in doing so would be going against the first principle now enshrined in Aintree that this Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further.

[53] If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care. The care providers, (here RCH), may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with the MN’s mother. MN with capacity would have the following options: (i) accept the conditions of residence at the care provider’s establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care. What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers (RCH) to agree to his mother coming into their facility and ‘assisting’ with his intimate care” (emphasis in original)

That, in my judgment, was an impeccable statement of the relevant principles correctly applied to the circumstances of the present case.

The judge added these important observations (paras 56-57):

“[56] … There have quite properly been negotiations between the parties in relation to the options that are in fact available … This is precisely the type of negotiation which is to be encouraged in Court of Protection cases.

[57] There will undoubtedly be cases where courts wish to explore with providers the possibility of funding being made available for packages of care which may, for example, have been identified by independent social workers. In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a ‘best interests’ trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.”

I respectfully agree with every word of that and would wish to emphasise in particular the point made by the judge in the final sentence.

The judge concluded this part of her judgment with a statement (para 59) of the need to:

“avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to ‘best interests’, with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings.”

She continued:

“Such an approach undermines the first principle that the court can only make a decision that the incapacitated person can make from choices which are available or can, through discussion and negotiation, be made available.”

I respectfully agree.

In the next part of her judgment, the judge turned to consider Ms Bretherton’s submission (para 62) that the court must always conduct a wide reaching inquiry into all options, including hypothetical options, in carrying out its best interests welfare analysis, and that failure to do so means that the court has failed adequately to assess the proportionality of the proposals put forward, which amounts to a breach of the parties’ Convention rights.

Having rehearsed the relevant provisions of the Convention and the Human Rights Act 1998, the judge divided her analysis into two parts.

First, she considered the applicability of the Convention in relation to the identification by public authorities of the available options. In relation to proceedings before the Court of Protection, she identified section 7 of the Human Rights Act 1998 (para 68) as providing:

“a remedy and a forum for a properly raised and pleaded application setting out the basis upon which it is suggested that the ACCG had acted in such a way as to breach MN’s convention rights when determining the available options to be put before the court for its consideration.”

In coming to this conclusion she referred to two cases involving children, Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160, and Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54, [2004] 1 FLR 944, and two more recent cases in the Court of Protection, A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, and Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712.

The judge explained her thinking as follows (paras 71-75):

“[71] … If a human rights issue is properly raised and pleaded and appears to the court on the pleadings to have some credibility, the court may choose exceptionally to conduct a best interests analysis which includes a consideration of hypothetical options. This would be ordered so as to determine whether the assertion that there is a breach of a party’s Art 8 rights, consequent upon the provider failing to provide funding for their preferred option, has been made out.

[72] I should be absolutely clear that it does not follow that in every case where a provider has declined to fund a package, or limited the available options, that there should thereafter routinely be an assessment of whether such an option would be in the best interests of the patient in order to ascertain whether there has been a breach of Art 8 rights. Far from it.

…

[75] … such an approach ensures that public authorities are saved from the uncertainty and expense consequent upon a routine assessment of best interests in the context of hypothetical care packages under a vague ‘catch all’ of Art 8 rights, often made with the aim/consequence of putting pressure on public authorities to agree to options which they have previously, quite properly, refused to fund.”

She explained why she rejected Ms Bretherton’s submissions (para 80):

“In the present case, disregarding the fact that no application under s 7 has been made in proper form or at all, it is hard to see how an argument under s 7(1) could, on the agreed facts be sustained and a claim maintained that the Art 8 rights of either parent or MN have been breached or that any interference in their family life is disproportionate. Such a claim would have to be made out against the backdrop that ACCG’s refusal to provide the funds for contact to take place at the parents’ home (and thereafter to pay for adoptions to the property), arose in the context of the parent’s home being a property at which MN has not lived (or perhaps even visited) for 13 years and an ‘open door’ plan for contact at RCH a little over 6 miles away. If I am wrong about that, proceedings under s 7(1)(a) remain available to the parents if so advised.”

Secondly, the judge considered the applicability of the Convention in relation to the court’s own approach. Having referred to the decision of this court in K v LBX and Others [2012] EWCA Civ 79, [2012] COPLR 411, the judge continued (para 85):

“It follows therefore that consideration of MN’s Art 8 rights are accommodated within a s 4 best interests assessment as part of a consideration by the court of all the relevant circumstances. I am satisfied that in concluding by reference to s 4, that the proposals put forward by ACCG are in MN’s best interests that his Art 8 and Art 6 rights are adequately considered and respected. It is not therefore necessary or appropriate in order to accommodate a consideration of MN’s Art 8 rights, for the court to go beyond a consideration of the options put before it by the ACCG.”

The judge expressed her overall conclusions as follows (paras 86-87):

“I find therefore that:

(i)

As restated by Baroness Hale in Aintree ‘the court has no greater powers than the patient would have if he were of full capacity’.

(ii)

Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by ‘care providers’ and other public authorities.

(iii)

There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s 7(1)(b) HRA 1998, conduct an assessment of the person’s best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a Convention right.

(iv)

Protection of the Art 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a s 4 MCA 2005 best interests assessment.

[87] In all the circumstances, I accept the submission of ACCG that contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents’ house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s 4 MCA 2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests.”

Ms Kerry Bretherton, on behalf of Mr N, and Ms Aswini Weereratne, on behalf of Mrs N, make common cause in challenging Eleanor King J’s judgment and decision. With some nuances their arguments cover much the same ground and are to much the same effect. I shall therefore take them together.

Ms Bretherton is explicit in accepting the correctness of the analysis in A v A Health Authority, that a public law decision can be challenged only in the Administrative Court, with the corollary that a best interests determination by the Court of Protection would not be binding on ACCG or ACC; in acknowledging that the Court of Protection cannot put pressure on statutory bodies in exercising their statutory functions and powers; and in accepting that, and I quote her final written submissions, “there is no Human Rights Act challenge to the decision of ACCG.” The only relevance of the Human Rights Act 1998, she says, “is in relation to the failure to hear the case – it is that which is a breach of Article 8 and Article 6 not a discrete challenge within the case.” Ms Weereratne also is explicit in her acceptance of A v A Heath Authority, though submitting that in fact it supports her arguments.

Ms Bretherton identifies two grounds of appeal. The first ground of appeal, she says, raises the issue of whether the Court of Protection can be “prevented” from reaching a decision as to what is in P’s best interests, whether under section 15 or section 16 of the Mental Capacity Act 2005, “because a commissioning body has decided not to commission or fund services.” It cannot, she says, be right that a commissioning body can restrict the matters to be considered by the Court of Protection by “removing options on the basis that it will not fund.” If the judge was right, the consequence, she suggests, is that “a filtering process will be permitted by other agencies before the Court can scrutinise the position.” The second ground of appeal, she says, is whether the failure to conduct a full ‘best interests’ assessment in accordance with the principles of the 2005 Act was a failure by the court to conduct a full merits assessment in breach of Articles 8 and/or 6.

In relation to the first ground of appeal, Ms Bretherton complains that, if the judge was right, there is substantial scope for local and health authorities to limit the issues which can be considered by the Court of Protection. The judge was not being asked to consider the lawfulness of ACCG’s decision. What she was being asked to determine, and what the 2005 Act required her to determine, was whether it was in MN’s best interests to have home visits and care by his parents – a decision, says Ms Bretherton, which is plainly a matter for the Court of Protection. In declining to decide these questions, she says, the judge erred in law.

In support of her general proposition, Ms Bretherton makes a number of specific points:

Ms Weereratne takes as an additional point the assertion that ACCG’s decision not to allow Mrs N’s greater involvement in MN’s care was a decision taken on best interests grounds, and was not informed by resource or similar considerations, and that its decision not to allow contact to take place at the family home was, or was significantly, informed by its assessment of MN’s best interests.

In relation to the second ground of appeal, Ms Bretherton’s submissions really come down to two essential points. First, that MN’s Convention rights will not be properly safeguarded in the absence of a full best interests determination and, secondly, that neither judicial review (which Ms Weereratne suggests will usually turn on a ‘Wednesbury’ challenge) nor an application under section 7 of the 1998 Act is an adequate remedy, since neither is apt to facilitate the kind of detailed factual investigation that the Convention requires and which only the Court of Protection can provide. In relation to this latter point, Ms Bretherton draws attention to the fact that the trial bundle in this case ran to 5 full lever arch files, containing 740 pages of witness evidence and 1,289 pages of expert evidence. There were, she says, substantial factual disputes and matters which could only be determined after a judge reached conclusions on which evidence she preferred. A procedure which did not involve consideration of what she calls “the full factual dispute” – including, I assume, these 2,029 pages of evidence – would not, she submits be Article 8 compliant.

Ms Weereratne’s argument on this point is more nuanced. She makes clear that it is not her case that the Court of Protection must embark upon a full hearing and determination of factual issues in all cases, but only in those where the public authority’s final decision on the provision of services “may depend on, or be influenced by, the court’s assessment of P’s best interests.”

Ms Weereratne adds that the judge erred in concluding that a human rights challenge must be specifically pleaded. In support of the proposition that the Court of Protection has jurisdiction to deal with a claim under section 7 of the 1998 Act, she adds a reference to YA v A Local Authority and others [2010] EWHC 2770 (Fam), [2011] 1 WLR 1505.

At the end of the day, Ms Bretherton says, the real difficulty is that the judge focused on the question of whether the decision of ACCG was lawful, when what the Court of Protection should have been considering and focusing on was what is best for MN.

Mr Hugh Southey QC and Ms Fiona Paterson, on behalf of ACCG, and Mr Alex Ruck Keene, on behalf of MN, resist the appeal. Except on one point their arguments are much the same. The matter on which they differ is the judge’s decision that the Court of Protection has jurisdiction under Section 7 of the Human Rights Act 1998. Mr Ruck Keene says that the judge was right. Mr Southey and Ms Paterson say that she was wrong.

Put very shortly – and I trust they will understand if I take the matter very shortly – Mr Southey, Ms Paterson and Mr Ruck Keene submit that in all other respects the judge was right, and essentially for the reasons she gave. They point to the analysis in A v A Health Authority and place particular emphasis on Holmes-Moorhouse and Aintree which, they submit, are much in point and, in the case of Holmes-Moorhouse, as much applicable to the Court of Protection as to the family court.

Addressing the additional point taken by Ms Weereratne, Mr Ruck Keene submits that ACCG’s decision in relation to the funding of contact at the family home was a decision taken in discharge of its statutory duties in relation to MN; that since it went to the question of public funding it was not a decision that MN could ever have taken for himself, whether or not he had capacity, and was not therefore a decision that it lay within the gift of the Court of Protection to take on his behalf; and that this analysis is not displaced by the mere fact that the decision letter dated 28 October 2013 was framed in terms of “best interests.”

In relation to the possible provision of intimate care by Mrs N, Mr Ruck Keene points out that ACCG was not at the time of the hearing before the judge, and is not now, offering to fund a placement anywhere else than at RCH. Mr and Mrs N having no resources to fund MN’s care privately, there was, he says, only one option before the court – RCH – and that was the only option because of a decision taken by ACCG. Whether or not predicated upon a consideration of MN’s best interests, it was not a decision taken for or on behalf of MN. As with the decision in relation to contact, it was therefore a public law decision, and thus not a matter for adjudication by the Court of Protection.

In relation to the section 7 point, Mr Ruck Keene submits that the judge was entirely correct to found herself on Re L and Re V. Mr Southey and Ms Paterson contend otherwise. They submit that where such a human rights argument arises in the context of a challenge to a decision of a public authority, it is no different in principle from a challenge brought on the basis of more traditional judicial review principles. Fundamentally, they submit, there is no difference between a decision to exclude options that is unlawful on human rights grounds and a decision that is unlawful on other grounds. The proper forum in which to litigate such issues is therefore the Administrative Court and not the Court of Protection.

In my judgment the judge was right in all respects and essentially for the reasons she gave.

The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.

The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):

“In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a ‘best interests’ trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.”

Back of the specific authorities to which I have referred there are, in my judgment, four reasons why the Court of Protection should not embark upon the kind of process for which Ms Bretherton and Ms Weereratne contend. First, it is not a proper function of the Court of Protection (nor, indeed, of the family court or the Family Division in analogous situations), to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it. Secondly, it is not a proper function of the Court of Protection (nor of the family court or the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court. Thirdly, such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court. Fourthly, such an exercise runs the risk of exposing the public authority to impermissible pressure. Eleanor King J rightly identified (para 59) the need to:

“avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to ‘best interests’, with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings.”

Precisely so.

The present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 pages of evidence, to come to a ‘best interests’ interest on an abstract question, and all for what?

In relation to the point taken by Ms Weereratne I agree with Mr Ruck Keene’s submissions on the point. It does not take Mrs N anywhere.

In relation to the human rights issues I agree with the judge’s analysis and conclusions. With all respect to what is said by Mr Southey and Ms Paterson, the decision of this court in Re V is clear authority for the proposition that the Court of Protection (which in this respect can be in no worse position than the family court or the Family Division) has jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998. So far as concerns Ms Weereratne’s complaint, I agree with the judge that such a claim must be clearly identified and properly pleaded.

I add only one point for the avoidance of misunderstanding. As explained in R (Anton) v Secretary of State for the Home Department; Re Anton [2004] EWHC 2730/2731 (Admin/Fam), [2005] 2 FLR 818, para 40:

“The Human Rights Act 1998 has not collapsed the fundamental distinction between public law and private law. A case which, properly analysed, is a public law case is not transformed into something different merely because Convention rights are relied upon.”

That is not, in my judgment, affected by anything said in Re V.

There was a certain amount of debate before us as to the use of declaratory orders in the Court of Protection. This is not the occasion for any definitive pronouncement but three observations are, I think, in order.

First, the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate. It originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful. Even before the Mental Capacity Act 2005 was brought into force, that view of the inherent jurisdiction had been shown to be unduly narrow: see St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115. Moreover, the Court of Protection has, in addition to the declaratory jurisdiction referred to in section 15 of the 2005 Act, the more extensive powers conferred by section 16.

Secondly, the Court of Protection is a creature of statute, having the powers conferred on it by the 2005 Act. Section 15 is very precise as to the power of the Court of Protection to grant declarations. Sections 15(1)(a) and (b) empower the Court of Protection to make declarations that “a person has or lacks capacity” to make certain decisions. Section 15(1)(c) empowers the Court of Protection to make declarations as to “the lawfulness or otherwise of any act done, or yet to be done.” Given the very precise terms in which section 15 is drafted, it is not at all clear that the general powers conferred on the Court of Protection by section 47(1) of the 2005 Act extend to the granting of declarations in a form not provided for by section 15. Indeed, the better view is that probably they do not: consider XCC v AA and others [2012] EWHC 2183 (COP), [2012] COPLR 730, para 48. Moreover, it is to be noted that section 15(1)(c) does not confer any general power to make bare declarations as to best interests; it is very precise in defining the power in terms of declarations as to “lawfulness.” The distinction is important: see the analysis in St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115, paras 11-18.

Thirdly, a declaration has no coercive effect and cannot be enforced by committal: see A v A Health Authority, paras 118-128 and, most recently, MASM v MMAM and others [2015] EWCOP 3.

All in all, it might be thought that, unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction.

Before parting with this case there are two more general points that need to be made.

The first relates to the need, rightly identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, paras 31-33, to identify, flag up and address, well before a personal welfare case comes on for hearing in the Court of Protection, (i) any jurisdictional issues and the legal arguments relating to them and, more generally, (ii) the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given. The purpose, of course, is to ensure that each party knows the cases being advanced by the others. Charles J went on (paras 34-46) to elaborate how all this might be achieved.

That judgment was handed down on 26 January 2011. It is depressing to have to note how little of what Charles J had said seems to have percolated through to those involved in the present case.

The proceedings began, as I have said, on 25 August 2011. The hearing before Eleanor King J commenced on 18 November 2013, over two years later. The issues with which Eleanor King J and subsequently this court have been concerned had, to use Ms Bretherton’s phrase, been “bubbling under the surface for some time.” The case was listed for three days. As Eleanor King J described it in her judgment (para 46):

“[Mr and Mrs N] had anticipated until the morning of the trial that, whilst they make a concession in relation to MN’s residence, there would still be consideration by the Court of Protection of the contact issue. Their expectation was that, over 3 days, witnesses would be called and cross-examined and submissions made prior to the court reaching a ‘best interests’ decision as to whether or not MN should have contact at the home of his parents as the first stage of a gradual progression to either living or spending lengthy periods of time with them there. I understand that they may feel that the ground has been cut from under their feet by what Ms Bretherton referred to as the public authorities’ ‘knock out blow’.”

As the judge records in her judgment (para 18), counsel for ACC in a position statement dated 14 August 2013 had flagged up one issue in the case as being the interface between the Court of Protection and the Administrative Court, and had made it clear that her case was that the Court of Protection is limited to choosing between the available options and making decisions that MN is unable to make by virtue of his incapacity. However, directions were given at a hearing on 28 August 2013 for the filing of further evidence and thereafter, we were told, the parties prepared for a three day trial of the contested issues of fact.

ACC’s stance on the jurisdictional issue was clarified in an email (to which copies of various authorities were attached) sent by ACC’s counsel to the other counsel in the case at 23.02 the night before the hearing was due to start. The judge recorded what followed (paras 22-23):

“[22] … When the court sat it was told, for the first time, that a jurisdictional issue arose as to whether … the court should, or should not, now embark on a contested ‘best interests’ trial in relation to home contact and of personal care of MN by Mrs N.

[23] No skeleton arguments on the law had been prepared and none of the position statements filed directly addressed, or even identified this legal argument.”

The judge (para 47) appropriately paid tribute to Ms Bretherton for being both able and willing to deal with the argument then and there.

The judge was rightly critical of how this state of affairs had come about and (para 46) “wholeheartedly endorse[d]” the observations Charles J had made in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.

Steps need to be taken to ensure, as best can be, that there is no repetition of this kind of problem.

That takes me on to the other point. The time these proceedings took to reach a final hearing was depressingly long. I am very conscious that one must not push too far the analogy between personal welfare proceedings in the Court of Protection and care proceedings in the family court, but they do share a number of common forensic characteristics. Even allowing for the fact – not that it arose in this particular case – that cases in the Court of Protection may involve disputes about capacity which, in the nature of things, do not feature in care cases, there is a striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the 1989 Act. The present case, it might be thought, is a bad example of what I fear is still an all-too prevalent problem.

We invited counsel to make any comments on this aspect of the matter which they thought might assist. Their historical accounts of the litigation are illuminating and need not be rehearsed but demonstrate that the delays were not caused by any one party nor by any one factor. The truth is that this case, like too many other ‘heavy’ personal welfare cases in the Court of Protection, demonstrates systemic failures which have contributed to a culture in which unacceptable delay is far too readily tolerated.

In the family court the handling of care cases has been radically improved, and the previously endemic problem of delay has been brought under control, by the procedures set out in the Public Law Outline, contained in the Family Procedure Rules 2010, PD12A. Key elements of the PLO are judicial continuity, robust judicial case management, the early identification of issues by the case management judge, and the fixing at the outset by the case management judge of a timetable, departure from which is not readily permitted. Failure to comply with the timetable set by the judge and failure to comply, meticulously and on time, with court orders is no longer tolerated, as defaulters have discovered to their cost (for the applicability of this to the Court of Protection see Re G (Adult); London Borough of Redbridge v G, C and F [2014] EWCOP 1361, [2014] COPLR 416, para 12). Moreover, the parties are not permitted to agree any adjustment of the timetable or any extensions of time without the prior approval of the court: see Re W (Children) [2014] EWFC 22, paras 17-19. In the family court there has been a cultural revolution, from which the Court of Protection needs to learn.

This is not the first time that practice in the Court of Protection has attracted judicial criticism: see the judgments of Parker J in NCC v PB and TB [2014] EWCOP 14, [2015] COPLR 118, paras 126-148, and of Peter Jackson J in A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1. A & B related to two cases. In one case the proceedings in the Court of Protection had lasted for 18 months, in the other for five years. In his judgment, Peter Jackson J described (para 11) how:

“the consequence of delay has been protracted stress – described by one parent as “the human misery” – for the young men and their families, with years being lost while solutions were sought.”

He rightly drew attention (para 14) to a particular problem:

“Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in s 1(5) of the Mental Capacity Act 2005 that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’ calls for a sensible decision, not the pursuit of perfection.”

I agree, and wish to emphasise the point. He went on (para 15) to deprecate, as Parker J had done, “a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved.” Again, I wholeheartedly agree.

Peter Jackson J ended with this plea (paras 18-19):

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The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in 2 years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took 5 years – or 18 months – to decide the future of an 8-year-old?

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I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court.”

I endorse every word of that. I am glad to note that the recently established ad hoc Court of Protection Rules Committee is actively considering the need for reform.

We were told that the trial bundle in the present case ran to five lever arch files and also, which did not surprise me, that this was not atypical in this kind of case. I confess, however, to being surprised – and that is a pretty anaemic word – when told that the bundle contained no fewer than 2,029 pages of evidence. That, I have to say, is an indictment of the culture which has been allowed to develop in the Court of Protection. It must stop. In the family court, the relevant Practice Direction in relation to bundles provides that the bundle must not exceed one lever arch containing no more than 350 pages unless a larger bundle has been specifically authorised by a judge: FPR 2010 PD27A, para 5.1. It might be thought that the corresponding Practice Direction in the Court of Protection, PD13B, should be brought into line. In the meantime, proper compliance with PD13B is essential and should be rigorously enforced by Court of Protection judges. In particular, proper compliance with PD13B, paras 4.2, 4.3, 4.6 and 4.7, which judges must insist upon, will go a very long way to meeting the concerns identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.

In the Court of Protection, the use of expert evidence is restricted by Rule 121 to “that which is reasonably required to resolve the proceedings.” One of the most salutary and effective of the recent reforms to family justice has been the imposition of a significantly more demanding test by section 13(6) of the Children and Families Act 2014 – “necessary to assist the court to resolve the proceedings justly.” Here, as I have already noted, the bundle contained an astonishing 1,289 pages of expert evidence. The profligate expenditure of public resources on litigation conducted in such an unrestrainedly luxurious manner is something that can no longer be tolerated. As I recently observed in relation to the family court (Re L (A Child) [2015] EWFC 15, para 38):

“I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation.”

Consideration requires to be given to the early amendment of Rule 121 to bring it into line with section 13(6).

For these reasons the appeals of Mr and Mrs N must be dismissed.

I agree.

I agree.