SM v The Court of Protection and The London Borough of Enfield

Summary

This was a judicial review of a decision of the Court of Protection. The application was brought by SM, mother of RM, against a decision on 12 March 2021 of HHJ Hilder in respect of RM's residence and care arrangements. SM had applied for permission to appeal, which was refused by Keehan J on 12 April 2021, on the basis that there was no reasonable prospect of establishing HHJ Hilder's decision was wrong. Keehan J further found that the proposed appeal was totally without merit. SM had no further right of appeal to the Court of Appeal in respect of HHJ Hilder's decision.

SM then issued an application for judicial review. Mostyn J noted at the outset of his judgment that the application "is a proxy for a prohibited appeal against the decision of Keehan J, and as such is likely to be an abuse." He noted that the application was in any event out of time for challenge HHJ Hilder's decision, and thus the only reviewable decision was that of Keehan J refusing permission to appeal.

Mostyn J noted R(Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663, which considered "whether a decision of the Upper Tribunal to refuse permission to appeal a decision of the First-Tier Tribunal was susceptible to judicial review" (paragraph 8).  In that case, the Supreme Court found that 'the judicial review jurisdiction of the High Court over unappealable decision of the [Upper Tribunal] had not been ousted" (paragraph 13).  Mostyn J summarised the finding of the court at paragraph 14:

The Supreme Court went on to rule that the test for challenge in judicial review proceedings should be the same as that for a second-tier appeal under s.55 of the Access to Justice Act 1999: see [55] per Baroness Hale and [130] per Lord Dyson. Section 55 provides:

'Where an appeal is made to the county court, the family court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it.'

Mostyn J noted that this decision had led to the introduction of CPR 54.7A, but this provision applied only to a refusal of permission to appeal by the Upper Tribunal:

CPR 54.7A(7) provides:

'The court will give permission to proceed only if it considers –

(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and

(b) that either –

(i) the claim raises an important point of principle or practice;

or

(ii) there is some other compelling reason to hear it.'

And para (8) provides

'If the application for permission is refused on paper without an oral hearing, rule 54.12(3) (request for reconsideration at a hearing) does not apply.' (paragraph 16)

The court went on to note the recommendation of the Independent Review of Administrative Law Panel that Cart judicial reviews should be abolished, observing their strikingly low rates of success. Mostyn J considered that the reasoning of the panel, while limited to consideration of Upper Tribunal refusals of permission:

must apply equally to a Cart-type application seeking to challenge an unappealable refusal of permission to appeal by an appeal judge in the County Court or Family Court. If the Cart jurisdiction is to be abolished, then in my opinion it should be completely abolished (paragraph 19)

The court asked itself: 'Does the Cart jurisdiction extend to the Court of Protection?' (paragraph 19).  The court noted that the draft Bill appended to the Law Commission report had provided for the Court of Protection in language very similar to the words to those "very similar to those in the 2007 Act considered by the Supreme Court in Cart" (paragraph 25).  However, whilst s.45(1) of the MCA as actually enacted provides that the Court of Protection is a superior court of record, per s.50(1), Parliament provided that the Court of Protection has "the like powers, rights, privileges and authority as the High Court.'  The court considered that:

In my judgment the variation of the Law Commission's language is highly significant. When defining the scope of the new court's jurisdiction Parliament spoke of "general powers" rather than supplementary powers. Further, those powers were not confined to procedural matters such as attendance of witnesses and the production of documents, nor were they confined to matters of enforcement, nor were they confined merely to matters incidental to the court's jurisdiction. Rather, the new Court of Protection was granted exactly the same powers, rights, privileges and authority as the High Court. There is no opacity of language in s.47(1). Pace Baroness Hale's para [37] the words are completely clear. (paragraph 37)

As a result, "the position of the Court of Protection is far removed from that of the Upper Tribunal" (paragraph 29) as the Court of Protection was making orders which, prior to the MCA 2005, "would have been made by the High Court exercising its inherent powers" (paragraph 34). As a result "the Court of Protection cannot be regarded as a court inferior to the High Court, and therefore its unappealable decisions cannot be the subject of judicial review by the High Court" (paragraph 35).  Mostyn J noted that the position was not "nearly so clear cut where a decision refusing permission to appeal is made in the Family Court" (paragraph 36):

38. …the Family Court principally subsumed the family jurisdiction of the County Courts, although it was intended also to embrace some, but by no means all, of the family jurisdiction of the High Court: see the President's Guidance at paras 14 and 17.

 

39. Accordingly, it seems to me that the Family Court is probably to be regarded as inferior to the High Court. Therefore, a decision by an appeal judge within the Family Court refusing permission to appeal is seemingly covered by the reasoning of the Supreme Court and is susceptible to a judicial review challenge under the second-tier appeal test, although a definitive decision must be awaited.

Mostyn J found that even if it were incorrect in respect of the above, '"the application nonetheless falls to be dismissed both for a procedural reason and on the merits" (paragraph 41).  It noted that the application was out of time in respect of HHJ Hilder's decision, and made no mention of Keehan J's decision. The court further found that the application did not raise any important point of principle or practice, and did not demonstrate any error in law: "Her complaints about the decision of HHJ Hilder amount to no more than a disagreement with its merits" (paragraph 47). Like Keehan J in respect of the appeal, Mostyn J concluded that the application was totally without merit and refused permission to apply for reconsideration at a hearing.

Comment

The appeal itself in this case appeared to be hopeless, having been found to be totally without merit by both Keehan J and Mostyn J. The judgment is notable for being a formal authority (should one, in fact be required) that the Court of Protection is a superior court of record, on an equivalent plane to the High Court, such that a decision by a judge of the Court of Protection to refuse permission to appeal is not amenable to judicial review in the same way as (currently) certain equivalent decisions within the Tribunal system are.