Re X and Others (Deprivation of Liberty) (Number 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 16 October 2014 |
| Neutral Citation | [2014] EWCOP 37 |
| Docket Number | Case No: 12488518 and 28 others |
| Court | Court of Protection |
| Date | 16 October 2014 |
[2014] EWCOP 37
COURT OF PROTECTION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE COURT OF PROTECTION
Case No: 12488518 and 28 others
Mr Alexander Ruck Keene and Mr Benjamin Tankel for the Official Solicitor as advocate to the court
Ms Joanne Clement for the Secretary of State for Health and the Lord Chancellor and Secretary of State for Justice
Mr Stephen Cragg QC for the Law Society of England and Wales
Ms Alison Ball QC and Mr Andrew Bagchi for the Association of Directors of Adult Social Services
Mr Neil Allen for Cheshire West and Chester Council, Surrey County Council and Northumberland County Council
Mr Michael Dooley for Cornwall Council
Ms Bethan Harris for Worcestershire County Council
Mr Conrad Hallin for Sunderland City Council
Ms Natalia Perrett and Ms Emily Reed for Barnsley Metropolitan Borough Council
Mr Simon Burrows for Rochdale Metropolitan Borough Council
Mr Michael Mylonas QC for Surrey Downs Clinical Commissioning Group
Mr Jonathan Auburn for NHS Sheffield Clinical Commissioning Group
Mr John McKendrick for Nottinghamshire Healthcare NHS Trust
Mr Jonathan Butler for KW (a patient)
Ms Katie Scott for AS and GS (patients)
Mr Joseph O'Brien for PMLP (a patient)
Mr Ian Wise QC, Ms Martha SpurrierandMs Alison Fiddy filed written submissions on behalf of Mind
Hearing dates: 5–6 June 2014
This judgment was delivered in Open Court
Sir James Munby, President of the Court of Protection:
I handed down a preliminary judgment in these matters on 7 August 2014: Re X and others (Deprivation of Liberty) [2014] EWCOP 25. I do not propose to rehearse what I then said. I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16).
For ease of reference I set out those questions again:
"(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?
(9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?
(16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?"
These questions require consideration of a number of issues which I take in order, formulating each of these issues in the form of a question.
The first question is whether as a matter of principle, and specific legislative provisions apart, there is any requirement in domestic law for P to be a party to welfare proceedings, whether in the Family Division or, as here, in the Court of Protection. The answer, in my judgment, is that there is no such requirement.
I start with the analogous question in relation to welfare proceedings about children, beginning with wardship. It is quite clear, in my judgment, that there is not, and never has been, any requirement that the ward be a party to the wardship proceedings. That was the position in the days before 1971 when wardship was still in chancery: see Daniell's Chancery Practice, ed 8, 1914, Vol 1, p 976 and, in particular, In re an Infant [1950] Ch 629, 632, where Roxburgh J said:
"At first sight, it might seem strange to make an order about a person who is not a party to the proceedings. On the other hand, the infant is generally very young, and the appointment of a guardian ad litem and service on him or her involves expense which generally results in no corresponding benefit. The court would, of course, not make the order if in doubt whether it was for the infant's benefit, and it has indisputable jurisdiction to order the infant to be made a respondent if it desires to do so. For example, the infant might be approaching full age; or the parties might be so much wrapped up in matrimonial disputes that they cared nothing for the infant. The court has an unfettered discretion. But I propose to express the view, after consultation with my brethren of the Chancery Division, that an infant should not be made a respondent to an originating summons under the Act unless the master or a judge so directs".
That remained the position thereafter, following the transfer of wardship to the Family Division. As Lowe & White, Wards of Court, ed 2, 1986, para 9–7, put it, "There is no requirement that a ward be made a party to wardship proceedings." Indeed, a Practice Direction made in December 1981, following comments made by the Court of Appeal in In re F (A Minor) (Adoption: Parental Consent) [1982] 1 WLR 102, spelt out that "only in special circumstances should the child be joined": Practice Direction (Child: Joinder As Party) [1982] 1 WLR 118. That Practice Direction is no longer in force, but rule 12.37(1) of the Family Procedure Rules 2010, carrying forward in somewhat different language provisions previously in rule 5.1(3) of the Family Proceedings Rules 1991, provides that, "A child who is the subject of wardship proceedings must not be made a respondent to those proceedings unless the court gives permission."
The same practice, reflecting the practice in the Probate, Divorce and Admiralty Division and in the Family Division in custody cases arising after divorce (see, for example, In re F (A Minor) (Adoption: Parental Consent) [1982] 1 WLR 102, 112, per Ormrod LJ and rule 115 of the Matrimonial Causes Rules 1977), applies in private law proceedings under Part II of the Children Act 1989: see the table in rule 12.3(1) of the Family Procedure Rules 2010.
The basis of this approach is no doubt to be found in the special nature of welfare proceedings. As Cross J said in In re B (JA) (An Infant) [1965] Ch 1112, 1117:
"Wardship proceedings are not like ordinary civil actions. There is no "lis" between the parties. The plaintiffs are not asserting any rights; they are committing their child to the protection of the court and asking the court to make such order as it thinks is for her benefit."
This reflects the classic analysis, applying be it noted to both children and those who were then labelled lunatics, to be found in Scott (Otherwise Morgan) v Scott [1913] AC 417. One short extract will suffice, from the speech of Viscount Haldane LC, at 437, 438:
"The case of wards of Court and lunatics stands on a different footing. There the judge who is administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor, is not sitting merely to decide a contested question. His position as an administrator as well as judge may require the application of another and overriding principle to regulate his procedure in the interest of those whose affairs are in his charge … In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction."
Is there a distinction to be drawn because I am here concerned not with children but with adults who lack capacity? In my judgment, there is no distinction: compare Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, para 45, a case relating to an adult decided in the Family Division, and RC v CC (By Her Litigation Friend the Official Solicitor) and X Local Authority [2014] EWCOP 131, [2014] COPLR 351, para 20, a case relating to an adult decided in the Court of Protection. As I said in the latter case, where the issue related to disclosure of documents to the parties,
"Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do. One really needs look no further than Scott v Scott to see that the same fundamental principles underlie both jurisdictions."
In Cheshire West and Chester Council v P and M [2011] EWHC 1330 (COP), [2011] COPLR Con Vol 273, para 52, Baker J, in a passage I expressed my agreement with in Re G (Adult) [2014] EWCOP 1361, para 26, said this:
"The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests."
The resonance with what Viscount Haldane had said in Scott v Scott and Cross J had said in Re B, is palpable.
The second question is whether, whatever the position in domestic law, there is any requirement under the Convention for P to be a party to welfare proceedings, in particular, proceedings relating to deprivation of P's liberty. The answer, in my judgment, is that there is no such requirement, though Article 5(4) of course entitles P to "take proceedings".
In matters going to deprivation of liberty P is entitled to the procedural safeguards mandated by Article 5 and, because deprivation of liberty goes to something which is a civil right (see Aerts v Belgium (2000) 29 EHRR 50,...
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