Judge: Charles J.
Citation:  EWHC 502
Summary: This decision relates to a relatively ‘standard’ best interests case concerning the residence and care arrangements for P, a man suffering life-long learning disability who had been cared for by his mother for the majority of his life, but had then been removed to be cared for by the local authority. It is of wider interest because Charles J set out in it in a reportable judgment for the first time that these authors are aware of his views as to the interaction between the MCA 2005 and judicial review proceedings. His comments, although expressed in provisional form, are of some considerable utility in clarifying the issues in a debate which has become increasingly vigorous: namely, what is the Court of Protection to do where a local authority declines to put an option before it for consideration?
Charles J repeated views expressed (in relation to the inherent jurisdiction) by him in Re S (Vulnerable Adult)  FLR 1095 and Munby J (as he then was) in A v A Health Authority  Fam 13, and by the House of Lords (in relation to the Children Act 1989) in Holmes-Moorhouse v Richmond-upon-Thames Borough Council  1 WLR 413, to the effect, in essence, that the Court in exercising its best interests jurisdiction is “choosing between available options” (paragraph 22). He noted that jurisdictional questions then arose as to the approach that was to be taken if someone wished to challenge the refusal of the local authority to place a particular option on the table by way of judicial review, not least as to the approach to be taken to findings of fact. At the time of writing, it would appear that the hearing listed specifically to consider those jurisdictional questions may not be effective, but the outcome of any such hearing will be covered in a subsequent edition of this newsletter.
Charles J also took the opportunity in this judgment to set out his views as to the cardinal importance of identifying the point in best interests proceedings at which it is no longer possible to proceed down the consensual route (which militates against the seeking of findings of fact adverse to a family member) and it becomes instead necessary to deploy the full panoply of the Court’s forensic mechanisms. In the instant case, and with the benefit of hindsight, it had become clear that that point had not been identified in time, such that all parties (including the Official Solicitor) had appeared before him for a final hearing in circumstances where he did not consider that the issues had been sufficiently delineated to allow that final hearing to be proceed. To this end, and with a view to giving general guidance, he suggested (at paragraph 46) that at an appropriate stage, sufficiently prior to the final hearing, a direction should be given to the effect that each party should serve on the other a document setting out:
Comment: Even if only provisional, the comments of Charles J in relation to the CoP/judicial review divide are of importance, as it will only become a more regular feature of best interests proceedings going forward that cash-strapped local authorities will simply decline to put on the table particular options. Quite where and how such decisions are to be challenged is a matter that will no doubt be the subject of further judicial consideration but Charles J has laid his cards out clearly on the table.
The procedural comments made by Charles J are also of significance, but no little difficulty. Those who regularly appear before the Court of Protection will know both that there is not complete unanimity between the judiciary as to the merits of conducting fact-findings hearings, and also that identifying the point at which it is necessary to abandon attempts to find consensus (with all the benefits that that brings for the maintenance of a working relationship with members of the family) and instead to segue into adversarial mode is a uniquely tricky exercise. Doing so too early can be just as damaging as doing so too late.