DL v LB Enfield
Judge: Senior Judge Hilder
Citation:  EWCOP B1
In this case, a local authority respondent sought to challenge the jurisdiction of the Court of Protection in relation to s.21A applications, “to challenge what might colloquially be called ‘a gravy train’. Mr Holbrook [Counsel for the local authority] said today, ‘I am challenging the accepted wisdom of what goes on in the Court of Protection.’” It appears that the local authority sought, in essence, to limit the circumstances under which an application could be brought and the case management directions that the Court of Protection should make before determining it. The argument was based upon a partial selection of passages from the judgment of King LJ in Director of Legal Aid Casework & Ors v Briggs  EWCA Civ 1169 (concerning the scope of legal aid in s.21A proceedings).
Senior Judge Hilder rejected the arguments advanced by the local authority, and observed that:
- 39. However large the numbers of a local authority caseload of persons being provided with care in the circumstances of their liberty being deprived it is imperative that those responsible for such conditions are never allowed to become cavalier about the significance of deprivation of liberty to the individual concerned and to society as a whole. In my judgment Article 5 rights do not become less precious because of the administrative burden of cases reliant on them.
- 40. Mr McKendrick QC has reminded the court of the generous ambit of Article 5.4 which entitles a person to speedy consideration by a court and in particular has referred to the case of Waite v the United Kingdom ECHR 2002. Article 5.4 is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention. An applicant is not required as a precondition to enjoying that protection to show that on the facts of his case he stands any particular chance of success in obtaining his release. When I put that to Mr Holbrook he also, and I quote, “entirely endorsed this” proposition.
- 41. Closer to home, the Court of Protection’s own Vice-President has recently had cause to restate this approach in the case of CB v Medway Council  EWCOP 5 at paragraph 33. He said:
- What is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.”
- 42. So, bearing in mind that these proceedings are brought pursuant to section 21A and that it is very clear from the paperwork that the qualifying requirements being scrutinised may include capacity and definitely include best interests, I have no doubt that it is appropriate for the court to go on to consider now […] what are the appropriate case management decisions to progress this matter.
Perhaps not very surprisingly in light of this, Senior Judge Hilder departed from the general rule in welfare cases, to order that all the costs incurred by the applicant detained person should be paid by the local authority to reflect that they had been incurred because the local authority had failed to take a “sensible and appropriate approach to these proceedings.”
It is clearly important that cases before the Court of Protection are managed proportionately, but the approach taken by the local authority in this case was – to put it mildly – striking. It is welcome that Senior Judge Hilder took the opportunity to make clear that it was simply wrong to seek to prevent proper consideration of the question of whether the standard authorisation in DL’s case should be upheld.
As a secondary – but important – point, it should be noted that Senior Judge Hilder had cause to consider the proper use of s.49 reports. As she noted (at paragraph 44), they are:
- a vital tool in the armoury of the Court of Protection but the court is also aware that the very usefulness of that tool comes as a burden to other public services, in this case the NHS. Practice Direction 14E sets out the circumstances to consider when the court is being invited to make a section 49 order and I emphasise that it is important that the court and the parties follows those requirements.