Judge: Charles J.
Citation:  EWHC 2770
Summary: The question of whether the Court of Protection has jurisdiction to award damages for breaches of the ECHR rights of P (or a family member of P) has been considered in depth by Charles J in this important decision. It arose upon an application by two public authorities (ultimately supported by the Official Solicitor) for claims under the Human Rights Act 1998 (‘HRA’) brought by the mother of P and P himself to be struck out for want of jurisdiction.
Whilst the judgment itself is likely to the subject of considerable commentary in the weeks and months ahead, at this stage, we highlight the key paragraphs in the decision, namely:
“17. I start with the common ground that the Court of Protection has jurisdiction to deal with the son’s claim based on Convention rights, and that, in reliance on his Convention rights, the son can seek relief by way of a declaration in these proceedings. The route to that conclusion is found in sections 7(1)(b) and 8(1) of the Human Rights Act and section 15(1)(c) of the Mental Capacity Act. These sections identify what has become a well trodden path that is, for example, identified and explained by Munby J (as he then was) in Re L (Care Proceedings) Human Rights Claims  2 FLR 160. That path also reflects a number of commentaries and comments relating to the impact of the Human Rights Act, to the effect that individuals and others will be able to rely on, and seek relief in respect of, Convention rights in proceedings which are not confined to a claim to enforce or deal with Convention rights.
18. I agree with that common ground. Should it be necessary to do so, the point that the Court of Protection has jurisdiction to deal with arguments and claims based on Convention rights is to my mind confirmed by paragraph 43 of Schedule 6 to the Mental Capacity Act because it makes express provision relating to declarations of incompatibility and reflects section 4 of the Human Rights Act.
19. It follows that the Court of Protection has jurisdiction (a) to deal with arguments raised on behalf of the son (and so, in general Court of Protection terms, P), which rely on breaches of Convention rights of which he (P) is a victim, and (b) to grant declaratory relief in respect of them.
20. But it is argued that that jurisdiction does not apply to the mother’s claims because it is said that the jurisdiction and powers of the Court of Protection (a) do not enable it to grant her any remedy under section 8(1) of the Human Rights Act, and (b) do not enable the court to deal with, or the mother to rely on, her Convention rights as the victim of any breach thereof.
21. The core of this argument is that the purposes of the Mental Capacity Act are confined to, and directed to, considering only the best interests of somebody who is found to lack capacity, (i.e. P, in this case the son), and to make decisions, orders and declarations applying statutory tests in respect of either matters relating to P’s welfare, (i.e. where he should live, medical treatment etcetera) or, and an important or, in respect of his property or affairs. So it is said that as the mother’s claims do not relate to such matters they should be struck out. And I pause to confirm that no incompatibility argument is properly before me in these proceedings.
22. The focus of this argument is on s. 15(1)(c) of the Mental Capacity Act which is set out above and provides that:
‘The court may make declarations as to the lawfulness or otherwise of any act done, or yet to be done, in relation to that person (i.e. the person who lacks capacity, P and thus here the son).’
It is argued that the declaratory relief sought by the mother (in contrast to that sought by the son), is not a declaration as to the lawfulness or otherwise of any act done or yet to be done in relation to “that person” namely the son (P). Rather, it is said that she complains of an act done to her or advances her claims as the victim of breaches of Convention rights.
23. The argument goes that s. 15(1)(c), in the context of the Act, should be interpreted as confining the act or acts done effectively, as I understand it, to ones of which P is the victim and therefore the court is only concerned with (and can only be concerned with) P as a victim. As a matter of ordinary English, it does not seem to me that the language needs to be or is so confined. I ask myself whether in this case the mother is seeking a declaration as to the lawfulness or otherwise of any act done in relation to her son. The answer to my mind is plainly yes, she is. The relevant acts were directed to the son. He was the person who was in hospital. He was the person who was placed elsewhere in circumstances that are complained of. I do not dispute the point made on behalf of the Defendants by reference to the relevant primary purpose, namely the creation of a new statutory court which is given jurisdiction to consider and deal with issues concerning the best interests of P. But, in taking both a literal and a purposive approach to legislation, secondary purposes can also be taken into account.
24. Standing back from the Mental Capacity Act, it seems to me that Parliament must have been well aware that people without capacity for whom decisions have to be made by the Court of Protection, if they cannot be made elsewhere, do not live in isolation. They often have families who are directly involved in decision making concerning, them and in their day to day care. There is no doubt that the mother is a necessary party to the best interests decisions that are made in respect of, and on behalf of, her son. Article 8 rights relate to and introduce a consideration of the impact of events on and between the members of a family and their relationships (see for example in the context of immigration Beuko Betts v SSHD  UKHL 39, and cases in the Family courts often raise points in the context of Article 8 that relate to the interplay between the relevant rights and interests of the members of a family). Can it therefore be said that Parliament was intending that if a set of events occurs that impact the Article 8 rights of the members of the family of a person who lacks capacity, and those events are properly described as being an act or acts done in relation to the person who lacks capacity (P), the Court of Protection should not have jurisdiction to make declarations as to the lawfulness of such acts by reference to the Convention rights of, and on the application of, those members of the family? To my mind the answer to that question “No”, and that consideration of this question indicates that an ability (and thus a jurisdiction) to deal with such issues is within a secondary purpose of the legislation.
25. I have reached that conclusion within the four walls of the Mental Capacity Act. But, in my view, it is fortified by section 3 of the Human Rights Act and by (a) the underlying purposes and impact of the Human Rights Act, as expressed in Re L (Care Proceedings) Human Rights Claims  2 FLR 160, in textbooks, and in statements by those who introduced the legislation, and (b) the point that I have already made that it seems to me that the intention of Parliament, in enacting section 7(1)(b) of the Human Rights Act, was to enable any proper party to proceedings before a court to raise for consideration by that court claims based on Convention rights. A similar approach can be found in the ability of parties to raise public law points in private law proceedings.
26. Other points were raised in the course of argument which it seems to me on analysis take the matter little further….
30. That analysis and reasoning leads me to the conclusion as a matter of construction and application of the Mental Capacity Act, the Court of Protection has jurisdiction (a) to hear argument on behalf of the mother that acts done “in relation to that person (i.e. the son)” constitute breaches of her Convention rights, and (b) to make declarations as to the lawfulness of those acts on her application and in respect of breaches of her Convention rights as a result of such acts (i.e. acts done in relation to the son).
32. My analysis has now reached the stage that the Court of Protection has jurisdiction to deal with the claims of both the mother and the son in the sense of considering points they advance under section 7(1)(b) of the Human Rights Act and granting a remedy by way of a declaration. Can this court also grant damages under the Human Rights Act? The crucial sections here are sections 8(1) and (2) of the Human Rights Act. Section 8(1) limits the remedies and relief that can be granted to those within the powers of the relevant court. Section 8(2) also focuses on the relevant court and provides that damages may be awarded only by a court which itself (I stress itself) has power to award damages, or to order the payment of compensation in civil proceedings.
37. So one has to turn to the provisions relating to the relief that the Court of Protection can grant to determine whether or not it has the power to award damages and, so, whether or not the provisions of section 8(2) of the Human Rights Act are satisfied. The Court of Protection is a court created by statute and therefore its powers are limited by the statute. A feature, it seems to me, of section 8(2) of the Human Rights Act is that it is looking at the general powers of the relevant English court and, in the context of the Human Rights Act, it would be circular to argue that as a court has power under the Human Rights Act to award damages section 8(2) is satisfied.
38. Section 8(2) directs one to consider, for example, whether the High Court or a County Court, has a power to award damages. The powers of those courts flow from provisions of now the Senior Courts Act, the County Courts Act and, in the case of the High Court, the assimilation of earlier jurisdiction and indeed an inherent jurisdiction. In broad terms, it seems to me, that the jurisdiction and power to award damages in those courts derives from the subject matter of cases that the court has jurisdiction to deal with. Examples are contract, tort, trespass and there are many others, all of which are civil claims. So, in my view, when applying section 8(2) one is looking at the general ability of the court to award damages excluding the power to so conferred by the Human Rights Act itself.
39. I turn to the crucial section in the Mental Capacity Act; it is section 47(1). I have mentioned it earlier, it provides that:
‘The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.’
It is argued on behalf of the Defendants, and this was at the forefront of the argument put before me on behalf of the Official Solicitor on behalf of the son (P), that section 47(1) is an ancillary provision and/or a provision that facilitates the exercise of the jurisdiction of the Court of Protection.
40. It was then said that a power to award damages is not ancillary to the making of a declaration or facilitative of the making of a declaration. I would not quarrel with that, but first it seems to me that “the making of a declaration” is not an accurate description of the jurisdiction of the Court of Protection. The Court of Protection’s relevant jurisdiction in this case is jurisdiction under the Human Rights Act. It seems do me that the natural reading of section 47(1) in that context is that in exercising its jurisdiction (under the Human Rights Act or indeed the Mental Capacity Act) the Court of Protection has the same powers, rights, privileges and authority as the High Court would have when it is exercising its jurisdiction (under the Human Rights Act and generally) and, therefore, the Court of Protection has an ability to award damages under the Human Rights Act because the High Court can do so under s. 8(2) thereof because of its jurisdiction to award damages in civil claims.
41. In my view, that argument does not have the circularity of an argument that section 8(2) is satisfied because a court has jurisdiction under the Human Rights Act and thus the power under that Act to award damages. This is because the argument looks outside the Human Rights Act and asks the “what if” question set by s. 47 of the Mental Capacity Act namely what could the High Court do if it was exercising the jurisdiction conferred on the Court of Protection by the Mental Capacity Act and the Human Rights Act.
42. But if that argument is wrong, in my view, an alternative route to the same answer is to consider whether the Court of Protection, by section 47, is given a power to award damages in respect of something other than a breach of a Convention right. In my view it does. For example, to my mind, in reliance upon section 47, the Court of Protection could award damages pursuant to an undertaking in damages given to it when an injunction was granted. Also, by reason of section 50 of the Senior Courts Act, it would have a power which, probably, would never be exercised in the welfare jurisdiction, and which might only be exercised rarely in the property jurisdiction, to award damages in lieu of an injunction. That is one of the specific powers of the High Court that listed in the relevant provisions in the Senior Courts Act.
43. So this alternative analysis and reasoning for the result that section 8(2) of the Human Rights Act is satisfied looks to, and relies on, powers of the Court of Protection (in connection with its jurisdiction and by reference to the powers of the High Court) to award damages other than under the Human Rights Act.
45. It therefore seems to me, and I conclude, that both linguistically and purposively, albeit possibly against the instinct of a number of lawyers dealing with a welfare jurisdiction, the Court of Protection does have jurisdiction and thus power to award damages under the Human Rights Act.”
Charles J therefore dismissed the application to strike out the HRA claims, although he directed that when the matter came back before him, he would treat both the claim of the mother and of the son as being proceedings in the Queen’s Bench Division on the basis that, were the decision on jurisdiction to be successfully appealed, or in future in another case his conclusion was found to be wrong, any award made in the proceedings before him would have jurisdictional base.
Charles J then ordered the two public authorities to pay one half of the costs of the Claimant mother incurred and occasioned by the application to strike out the mother’s Human Rights Act claim. The other half should be reserved; this recognises that the arguments raised jurisdictional issues. In coming to this decision, he was (un)impressed by the fact that the public authorities had taken a stance that this claim should be struck out on a preliminary basis without any apparent consideration whatsoever of what would then happen and how the relevant issues would be case managed if the applications succeeded.
Comment: This decision is of very considerable importance, because it had not been clear whether the jurisdiction of the Court of Protection extended as far as the grant of damages for breaches of the ECHR. It is clear that one of the primary reasons that Charles J expressed himself ‘relieved’ to have come to this decision (and, potentially, one of the reasons why he sought to reach the decision in the first place) was that the immediate consequence of a decision to the contrary would be that proceedings would then have to take place in the Queen’s Bench Division in parallel with those in the Court of Protection, which would have the consequence of escalating costs. However, since the issue is likely to be the subject of further judicial consideration, it may be that damages claims should continue to be issued in the Queen’s Bench Division for the time being, as a protective measure.
Charles J expressed himself confident that the Court of Protection will be robust in its use of the grant or refusal of permission to ensure that the recourse to the damages jurisdiction of the Court does not lead either to the eyes of the parties and the Court being taken off the “welfare ball,” or for family members to use welfare proceedings as a stick to beat public authorities with. It is very likely, however, that the stick is one that family members (and especially litigant in person family members) will seek to wave enthusiastically in light of this decision.