Bagguley v E

Judge: Hayden J

Citation: [2019] EWCOP 49


that the Court of Protection can authorise (by the making of a decision under s.16 MCA 2005) the taking of a DNA sample to establish paternity.  In this, he departed from the previously understood position (from LG v DK [2011] EWHC 2453 (COP)) that such testing was governed by the terms of Family Law Act 1969.  Hayden J also confirmed that such an order would constitute appropriate consent for purposes of s.3(6) Human Tissue Act 2004 in the event that the person has died prior to the point of the sample being taken, or after the sample has been taken but before testing has take place.

Hayden J also took the opportunity to make observations as to the obligations upon parties in the case of urgent applications, which merit reproduction in full.  Although, in fact, the case did not require the urgent decision that it appeared it did at first sight:

  1. […] Had the facts been as presented, it would have created a challenge in securing representation for E. This same dilemma can occur when an urgent application e.g. relating to urgent medical procedure, is made to the out of hours emergency judge. In those circumstances there may not be time to contact the Official Solicitor. Certainly, she will not have the opportunity to conduct independent investigations. Thus, she will not be able to contribute to the decision anything that is not already available to a judge. Nonetheless, the experience, the unique professional obligations to P and the accumulated welfare and legal knowledge of the Official Solicitor may provide an important contribution even where the OS has no greater, possibly even a lesser factual knowledge of the available evidence. The problem has not arisen here, nor do I think I should go further than to say that in situations which are a true emergency it will have to be a matter of judicial discretion as to whether it is necessary or whether time is available to contact the Official Solicitor. It is quite impossible to be prescriptive.
  2. What does, however, require to be signalled, in clear and entirely unambiguous terms, is that where an application is brought before the Court of Protection, on what is said to be ‘an urgent basis’, evidence of urgency must be presented which is both clear and cogent. This is to be regarded as a professional obligation on all the professionals involved but most particularly on the lawyers who bring the application. To this I would add the obvious and related point, an application which becomes urgent in consequence of professional delay in decision making is, equally, a professional failure which always militates against the interests of the protected person. An urgent hearing puts everybody concerned under very great pressure. Where such hearings are capable of being listed in circumstances which enable the parties to be appropriately represented and permit all involved the opportunity to consider and reflect upon the issues, they must be. This I emphasise is a facet of the Article 6 Rights of all involved but most particularly P’s rights.
  3. There is no absolute requirement that P should be joined as a party in every case. Indeed, the imposition of such a requirement would be unworkable. It is a fact, for example, that P will not be made a party in the vast majority of Property and Affairs applications. Even where the Court is considering a deprivation of liberty it may not be possible to join P as a party where a crisis situation has developed. This is notwithstanding the obiter dicta comments in Re: X (Court of Protection Practice) [2015] EWCA Civ 599. In an emergency the judge will have to evaluate the proportionality of the arrangements in the context of the crisis and, if an order is made, it is likely to be tightly time limited with an expeditious return to Court.
  4. Court of Protection Rules 2017 rule 1.2 and Practice Direction 1A place a duty on the Court to consider the participation of P and as to whether or not to join P as a party to the proceedings. In doing so the Court is directed to have regard to a number of matters including the nature and extent of the information before the Court; the issues raised by the case; whether a matter is contentious; and whether P has been notified. Where P is joined as a party, the joinder will only have effect once a litigation friend has been appointed (r1.2(4)). Where the Official Solicitor is appointed to act as litigation friend for P it is her usual practice to ensure that her criteria for accepting appointment are met and that arrangements are in place to meet her costs before she will act.
  5. I am aware that the OS is investigating the possibility of providing an out of hours service in the kind of circumstances I have highlighted. This has not been available in the past or at least not for the last decade. If it does become possible it will require to be used sparingly and probably regarded as ‘exceptional’. That, in any event, is for the future.

CategoryPractice and procedure, Pracetice and Procedure - Urgent application Date


Sign up to our Mental Capacity Law Newsletter

If you would like to subscribe to our newsletters please click the link below.


Call +44 (0)20 7832 1111 for more information

Barrister portfolio


Click the + icon next to any barrister to add their profile to this portfolio.

Barrister Call CV Email