The Court of Protection and practice points from the Family Division

The team at 39 Essex Street examine some recent practice points from the Family Division that are relevant to the Court of Protection.

Five recent cases from the Family Division shed light, by analogy, on issues that are also likely to arise in the Court of Protection: the need for a fact-finding hearing, the right to a fair hearing, the recognition of alternative means of dispute resolution and the circumstances in which a judge can lawfully reverse a previous decision.

Findings of fact/appeals against case management decisions in welfare decisions

In Re H (A Child) [2013] EWCA Civ 72 a mother appealed against an interim decision to relax contact arrangements between her son and his father without having first held a finding of fact to determine allegations that his father had assaulted him. The Court of Appeal (LJ Arden, LJ Elias, LJ Black) held that the judge was not required to hold a fact-finding hearing under the applicable rules governing family law proceedings, although was required to determine as soon as possible whether such a hearing is necessary (at paragraph 52).  

The Court opined that it was proper for the judge to deal with the issue on the basis of submissions and that the absence of live evidence would not invalidate a decision provided that the available written evidence, taken together with the submissions, is sufficient to make a proper welfare decision (at paragraph 63). Significantly, the Court extended the test for appellate interference in case management decisions to appeals against welfare decisions. In Re TG (A Child) [2013] EWCA Civ 5 the Court of Appeal confirmed it will only interfere with robust but fair case management directions where it is “satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

The Court in Re H considered that this applied equally to welfare decisions in recognition of the broad discretion enjoyed by the judge at first instance in that arena (at paragraph 42). In our view the Court of Appeal’s clear reluctance to interfere with interim welfare orders and its understanding of the pressures facing judges at first instance is a guide to how these issues are likely to be treated on appeals from the Court of Protection.

Adjournment where legal representation withdrawn before hearing

Two recent cases from the Court of Appeal on the application of the right to a fair hearing in the family law context demonstrate how highly fact specific this analysis will be. In Re L (A Child) (1 February 2013) the Court of Appeal (Thorpe LJ, Lloyd Jones LJ, Warren J) gave an ex tempore judgment (a summary alone of which is currently available on Lawtel) in which it found that the refusal of the judge at first instance to grant an adjournment to an unrepresented litigant violated Article 6. The father in the proceedings was seeking contact with his daughter and had his legal representation withdrawn by his solicitors very shortly before the final hearing.

The Court relied in part upon the decision of the ECtHR in P v United Kingdom (2002) 12 EHRR 619, finding that although that case was based on different facts, there was a strong possibility that the general principle identified therein (namely that parties in family proceedings should have representation) would lead the ECtHR to find there had been a breach in this case. However, those seeking to use this case should bear in mind that the facts were highly sympathetic to the father. In particular, the final order that was made had severe consequences for him, prohibiting him from making further applications for contact until his daughter was 16. In addition, on appeal the father adduced evidence from his psychiatrist confirming that he suffered from a paranoid personality disorder and was not able to represent himself in any useful way in the court process, which was likely to exacerbate his feelings of paranoia and persecution. The Court of Appeal held if this evidence had been available to the judge, he would have recognised that the father was a vulnerable applicant, disadvantaged by his disorder and unfit to litigate without representation. The scope of Article 6 is likely to be tested increasingly often in the Court of Protection with the changes to legal aid (outlined below) due to take effect in April.  

The Court of Appeal reached the opposite conclusion on the facts of Re GB (7 February 2013). In that case the Court of Appeal (Rix LJ, Lloyd LJ and McFarlane LJ) gave an ex tempore judgment (again, available in summary alone on Lawtel at the moment) in which it found that there was no breach of Article 6 when an application for an adjournment made by a mother in care proceedings was refused. The mother and father had initially been jointly represented but shortly before the final hearing they both sought an adjournment to find alternative legal representation. When this was refused, the mother proceeded as a litigant in person and the father withdrew. Special guardianship orders were made for two children and a third was placed in foster care. There was evidence that the mother has psychological issues but the Court held that the judge had been conspicuously helpful in ensuring the parties were on an equal footing, assisting the mother with what witnesses to call, allowing her free rein when she questioned witnesses, intervening on her behalf when the local authority were questioning witnesses and encouraging her to re-instruct her legal team.

The Court was clear that Article 6 ECHR would not be breached in every case where a litigant in person was refused an opportunity to adjourn to obtain legal representation.

Alternative dispute resolution

In a sign that the family courts are increasingly willing to recognise the role to be played by alternative means of dispute resolution, in Re AI and MT [2013] EWHC 100 (Fam) Baker J: (1) acceded to a request from the parties to stay matrimonial proceedings to allow for a non-binding arbitration to be conducted by a senior rabbi of the New York Beth Din, in recognition of the parties’ devout religious beliefs and their wish to resolve the dispute through the rabbinical court; and (2) endorsed the outcome of that process concerning both children and financial arrangements.

The case is of some importance because it was the first time in which such a step had been taken by the Family Division; it is also of significance by way of analogy in CoP proceedings because, in both, the Court’s obligation to have regard to the welfare of the child/the best interests of the adult is an obligation which cannot be ousted by agreement. The Court can – and in very many cases will – endorse an agreed consent order, but must be satisfied that the outcome is one that accords with the welfare of the child/best interests of the adult.

This case therefore provides strong support by way of analogy for the use of appropriate ADR in CoP proceedings as well as in proceedings involving children.  

Reversal of decision upon perfection of judgment

The final case in this round-up from the Family Division comes from the Supreme Court and concerns judicial tergiversation (or, more plainly phrased, the circumstances in which a judge may reverse a previous decision!). In the matter of L and B (Children) [2013] UKSC 8 the judge at first instance gave an oral judgment on 15 December 2011 in which she held that the father was the sole perpetrator of non-accidental injuries to a child.

The judgment was partially transcribed and was not sealed until 28 February 2012. However, on 15 February 2012, shortly before the final hearing, the judge delivered a “perfected judgment” in which she expanded upon her oral judgment of 15 December 2011 and, critically, concluded that the injuries could have been inflicted by either parent.  

The Supreme Court accepted that there is jurisdiction for a judge to change his or her mind up until the time that an order is perfected; pursuant to CPR rule 40.2(2)(b), this is when the orders is sealed. The question that arose on appeal was whether the judge was right to exercise that power.

The Supreme Court rejected the test of “exceptional circumstances” applied by the Court of Appeal, stating instead that the overriding objective must be to deal with the case justly and a carefully considered change of mind may be sufficient (at paragraph 27). One relevant factor will be whether any party has acted upon the decision to his detriment.

The Supreme Court was satisfied on the facts of this case that the judgment of 15 February 2012 should stand. It considered but ultimately declined to decide the difficult question of whether a judge in care proceedings may reverse a previous decision after the order has been sealed.

This article was prepared by the Court of Protection team at 39 Essex Street.