TL, Re [2017] EWCOP 1

The Judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of TL, PL and KC must be strictly preserved.

Case No 11728296

[2017] EWCOP 1

IN THE COURT OF PROTECTION

On appeal from HH Judge Marston

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/01/2017

Before

THE HONOURABLE MR JUSTICE BAKER

Between

PL (1)Appellants

KC (2)Appellant

TL (by her litigation friend, the Official Solicitor) (1)Respondents

A LOCAL AUTHORITY (2)Respondent

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998

AND IN THE MATTER OF TL (HUMAN RIGHTS) (RELEVANT PERSON’S REPRESENTATIVE)

The Appellants appeared in person, assisted by Sam Smith as McKenzie friend for in person

Parishil Patel (instructed by Stephen Scown LLP) for First Respondent

Marie Leslie (instructed by Local Authority solicitor) for Second Respondent

Hearing Hearing dates: 31 st October 2016

Judgment

Mr. Justice Baker :

[1]These proceedings in the Court of Protection concern a 41-year-old woman, hereafter referred to as “TL”, who has a learning disability and some features of autism. The parties to the proceedings include TL’s father, hereafter referred to as “PL”, and his friend, “KC”. This judgment sets out my decision and reasons in respect of an application by PL and KC for permission to appeal against two orders made by HH Judge Marston, the first dated 6 May 2016 and the second dated 12 August 2016. The hearing of the applications took place before me in Plymouth on 31 October 2016, after which I reserved judgment. I regret that other cases have delayed judgment until today.

Summary of facts

[2]For the last seven years, TL has lived in a specialist residential placement in the West Country which I shall refer to as X House. It is accepted that she lacks the capacity to make decisions regarding where she should live, her care and treatment, and the contact she should have with others. Decisions about these matters, in particular where she should live, were the subject of lengthy proceedings in this Court over several years in which TL acted through the Official Solicitor as her litigation friend. The proceedings led ultimately to a judgment and order by HH Judge Darwall-Smith dated 7 February 2012 in which she ordered that TL should remain living at X House, set out a schedule of defined contact between TL and PL and KC to be facilitated by the local authority, and made a series of injunctive orders including an order prohibiting any person from recording any contact between PL and TL or any conversation with professionals involved in TL’s care, and prohibiting PL from discussing with TL the possibility of her moving from X House. On 3 September 2013, I refused an application by PL for permission to appeal against Judge Darwall-Smith’s order.

[3]On 19 May 2014, PL filed an application in form COP9. In section 2.1 of the form, under the heading “what order or direction are you seeking from the court?” PL stated that the local authority had been in breach of the order for contact between TL and himself for 17 months and that he therefore applied for enforcement of the order, a penal notice to be attached to the order, a declaration that the local authority has breached his rights under Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and also TL’s rights under Articles 5, 8 and 14 of the Convention, and damages for the alleged breaches.

[4]On 17 June 2014, KC also filed an application in form COP9. In section 2.1 of her form, KC stated that she supported PL’s application but added that she also sought a declaration that her own Article 8 rights had been violated and also sought damages for herself. She further sought a declaration that the local authority had breached TL’s Article 3 rights in relation to a historic rape. She added that the local authority has intentionally failed to comply with the Practice Direction on pre-action conduct and therefore sought costs on an indemnity basis. Details of the complaints made by PL and KC about the local authority’s conduct were particularised in witness statements dated 28 September 2014.

[5]On 28 July 2014, the local authority, acting as the supervisory body for the purposes of Schedule A1 to the Mental Capacity Act 2005 (“MCA”), the so-called Deprivation of Liberty Safeguards, appointed as TL’s relevant person’s representative (“RPR”) a man hereafter referred to as “JM”, who had previously acted as TL’s independent mental capacity advocate (“IMCA”). A number of further applications were subsequently issued by PL and KC in the proceedings, including an application for a wasted costs order against the local authority’s solicitors, an application for permission for the media to attend court hearings, and for variation of the terms of the injunction against PL in Judge Darwall-Smith’s order. On 25 February 2015, HH Judge Marston refused the applications for the media to attend the hearings and for a variation of the injunctive orders made by Judge Darwall-Smith. PL then filed an application for permission to appeal Judge Marston’s order. That application came before me on 18 May 2015. At that hearing, PL gave an undertaking that he would not discuss with TC the possibility of her moving from X House and, on the basis of that undertaking, I made an order amending Judge Darwall-Smith’s order by removing the injunctive provisions and also the penal notice.

[6]On 30 November, Judge Marston gave further directions designed to address the issue which he had concluded lay at the heart of the dispute in the proceedings, namely the arrangements for contact between TL and her father. On that occasion, he granted the parties permission to obtain a report from an independent social worker to be filed by 7 March 2016, and listed the matter for review on the first open date after 3 May 2016. The parties duly appointed Mr. Ian Gillman-Smith as the ISW and on 7 March he filed a very detailed report in which he recited the background, summarised his interviews with TL, PL and KC, described the property owned by PL (“Y House”) where he proposed that contact should take place, summarised his interviews with professionals and earlier professional reports and set out a detailed support plan for TL. He concluded his report with detailed recommendations for an extension of contact between TL and her father, leading to regular contact at Y House. He recommended that a new care provider be identified to support this process, and recognised that KC would also play a pivotal role.

[7]By the time of the hearing on 6 May 2016, all parties had indicated that they accepted Mr Gillman-Smith’s conclusions, and an independent care provider able to manage the contact arrangements had been identified and agreed. In addition, PL and KC withdrew the claims for damages they had made under the Human Rights Act on behalf of TL. Two issues remained outstanding. First, there remained the claims brought by PL and KC under the Human Rights Act in their own right. Secondly, KC had by an application dated 15 April 2016 sought a declaration that it was not in TL’s best interests for JM to represent as RPR or in any other capacity.

[8]Having heard submissions on these issues, Judge Marston at the hearing on 6 May gave an ex tempore judgment on the issue of the HRA claims. He reserved judgment on the second issue, concerning the RPR, and ultimately handed down judgment on that issue on 12 August 2016.

[9]The first judgment is brief and I shall recite it in full:

“1. For many years these proceedings have been going forward concerned with … contact between PL and his daughter TL. It has been a very bumpy and difficult road which has, and I am not putting any blame on anybody, but it has now, through a great deal of very hard work, been brought to a situation where we are looking at much more significant amounts of contact, including staying contact and discussion rather than litigation. I am very anxious to try and preserve that atmosphere within these proceedings because TL and her father will be having a relationship with each other for many years to come, I hope. So that is my starting point. 2. Within these proceedings notice was given that TL and KC have got claims arising for, they say, breach of their human rights with regard to essentially the contact with TL. Those claims relate to them rather than to her. We are now in a situation where we have to deal with those claims. There is an argument about whether that should be within these proceedings or not, or whether it should be by way of a freestanding set of proceedings issued. 3. I have listened to the arguments that have been set out on the one hand by Mr Smith in the counterclaim for TL and KC, and on the other hand by counsel for the local authority and from the Official Solicitor. I have read all the documents that have been put in to me. It seems to me that the first point is that these claims are nothing to do with TL and my instinctive feeling therefore is that these claims should be brought under a freestanding application rather than within these proceedings. I feel that the presence of the Official Solicitor and TL within these proceedings dealing with these issues is inappropriate and disproportionate. There are issues between the local authority and PL and KC. So my first view was that I should rule that we will not go forward with these proceedings in this hearing and that they have to issue their separate proceedings. A point was drawn to my attention which is that you have a year under these proceedings, the time limit is a year not six years as is the case in ordinarily civil litigation. Therefore Mr Smith is very concerned that they would be out of time. It has been pointed out to me that the breaches of their human rights have been, they say, ongoing so that at least some of them would be covered. Also the court has jurisdiction to entertain other out of time applications… if it is just and equitable. There are some cost implications which have been made by Mr Smith [but] I think that I have to deal with this case in the way that I think is best for the litigation and for all the parties in the case. What I’m going to do in those circumstances is I’m going to say that that area of the case should not go forward within these proceedings. They should issue separate applications but they will be reserved to me and I will consider issues at a time in the context of my long knowledge of this case, which I have been dealing with for the best part of over two years now, so that that is the window through which these further claims should be approached rather than within this set of proceedings. That is my ruling on that point.”

[10]Following this judgment, an order was made stating, so far as these issues were concerned, that “1. Any claim/s for damages under the Human Rights Act (“HRA”) 1998 purportedly issued on the second respondent’s behalf are dismissed upon being withdrawn by the applicants. 2. Any claim/s for damages under the HRA brought by the applicants on their own behalf are dismissed, and insofar as the applicants wish to make a claim regarding these issues they should re-issue such claim in the county court and the matter shall be listed before HHJ Marston (without the involvement of the second respondent). 3. Any application to extend time to bring the claim/s pursuant to paragraph 2 above shall be listed before HHJ Marston.”

[11]In his second judgment dated 12 August 2016 dealing with the application for the removal of JM as TL’s RPR, Judge Marston set out the complaints made by PL and KC about JM’s contact, including that he had failed to speak to PL and had behaved in a partisan way acting not in TL’s best interests but rather as an advocate for the local authority. They also complained that JM had repeatedly telephoned PL by mistake asking to speak to another person, which left PL feeling frustrated, distressed and harassed. In the light of the fact that, following Mr Gillman-Smith’s report, there was now an agreed order about future contact, and an acknowledgement on all sides of the need for a fresh start, it was further argued on behalf of PL and KC that the removal of JM as RPR would facilitate such a fresh start. Judge Marston then recorded the arguments advanced in response by the local authority and Official Solicitor, namely that the proceedings before the court concerned the issue of contact and were unrelated to any matter connected with the standard authorisation granted under Schedule A1 so that the court had no jurisdiction to make any order in respect of JM’s appointments as RPR. The local authority indicated that it had apologised for the wrong number telephone calls, produced an email from JM explaining what had happened and apologising for the error, and had drawn attention to the complaints procedure which PL and KC could utilise if they remained dissatisfied.

[12]Having recited the arguments on both sides,

Judge Marston reached the following conclusion in his second judgment (at paragraphs 8 and 9):

“8. Having considered all these matters I make the following comments. First, the wrong number issue should not have happened, particularly in this case where there is massive distrust between PL and the local authority. Second, the email and apology should have been tendered previously. Third, this is a massive distraction in this case, it’s an issue of the past, which if necessary can be pursued by official complaint. 9. On the fate of the application to remove the RPR, I find I do not have the jurisdiction to do that because this application has nothing to do with him. I do not think an order of this sort is needed for the parties to move on, because they already have, but in addition I would not make such an order in his proceedings for the reason I have already set out.”

The appeal

[13]Meanwhile, on 26 May 2016, PL and KC had filed a notice of appeal, seeking inter alia permission to appeal against the first judgment. On 22 July 2016, I gave preliminary directions in respect of that application. Following the handing down of the second judgment, PL sought permission to appeal from Judge Marston who refused his application by order dated 22 August. On 20 September 2016, I made a further order directing that the applications for permission to appeal be listed before me on 31 October, with appeal to follow immediately if permission was granted. At a further hearing on 18 October, I made additional directions.

[14]I shall now consider the two issues under appeal, starting with Judge Marston’s dismissal of the claim for declarations and damages and then moving on to his dismissal of the application to remove the RPR. PL and KC are litigants in person but have been assisted in the preparation and presentation of the appeals by a McKenzie friend, Mr Sam Smith, a law graduate who is pursuing a Masters’ degree and who has assisted them since February 2014. With my permission, Mr Smith supplemented the written skeleton argument with oral submissions at the hearing. I am extremely grateful to Mr Smith for his assistance in this case. He has presented the arguments in support of the appeals with skill and sensitivity.

[15]In addressing these issues, I must apply the rules which specify that an appeal will be only allowed where the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings in the lower court: Court of Protection Rules 2007 (“COPR”) rule 179(3). Where, as in this case, permission to appeal is required, it may only be given where(a) the court considers that the appeal would have a real prospect of success, or

(b) there is some other compelling reason why the appeal should be heard: COPR rule 173(1).

Human Rights claims - submissions

[16]On behalf of PL and KC, it was submitted that the judge’s dismissal of the outstanding claims on their behalf for a declaration and damages in respect of alleged breaches of their human rights, was wrong in law, inadequately reasoned, and a perverse exercise of discretion. It was also submitted that, although the claim for damages for breach of TL’s rights had been withdrawn, the claim brought by the appellants for a declaration that her rights had been infringed had not been withdrawn and, insofar as Judge Marston’s order dismissed that application, it was again wrong and perverse.

[17]It was submitted that it is settled law that, in the course of proceedings under the Mental Capacity Act 2005, P’s family members may ask the Court of Protection for a declaration and damages in respect of breach of their human rights. The principal authority cited for this proposition was the decision of Charles J in YA(F) and a Local Authority and others

[2010] EWCOP 2770

. At paragraph 24 of his judgment in that case, Charles J stated:

“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, there’s members of the family? To my mind the answer to that question [is] ‘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.”

[18]After considering further submissions, he continued at paragraph 30:

“That analysis and reasoning leads me to the conclusion that, as a matter of construction and application of the Mental Capacity Act, the Court of Protection has jurisdiction (a) to hear argument 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).”

Charles J’s decision has been followed in a number of subsequent cases.

[19]In this case, the appellants argued that the appropriate venue for a human rights claim arising for breach of an order of the Court of Protection is the Court of Protection itself. In oral submissions, Mr Smith, drawing on Charles J’s comments in YA(F), argued that, in order to consider the claim for a declaration in respect of the alleged breach of PL’s and KC’s rights in respect of acts done to TL, it is necessary to consider alleged breaches of TL’s rights. A finding that the appellants’ rights had been breached is dependent on a finding that the acts done to TL were unlawful. In those circumstances, Judge Marston was wrong to say that the appellants’ claims were “nothing to do with TL”.

[20]Mr Smith further submitted that the judge was wrong to say that it was “best for the litigation and for all the parties in the case” for the human rights applications to be the subject of separate proceedings, albeit reserved to him. The appellants argued that the litigation in the Court of Protection concerning PL’s contact with TL, which has proceeded for a number of years, is the context in which all the human rights applications arise. It is PL’s case that individuals within the local authority have been motivated by malice and determined to sabotage his contact. A declaration that the local authority has infringed the appellants’ human rights would therefore buttress the newly-agreed arrangements for contact, although, as Mr Smith conceded, the relief sought under the human rights claims brought by PL and KC did not include an injunction.

[21]In the skeleton argument filed on behalf of the appellants, it was submitted that Judge Marston ignored these arguments and determined the matter simply by exercising his discretion as to whether to exercise jurisdiction. It was submitted that his decision not to do so – based on his view that progress had been made on contact, that the proceeding should focus on that and that the damages claims should be pursued via separate proceedings to which TL should not be a party – was perverse. In oral submissions, Mr Smith accepted that the appellants can only succeed on their appeal if this court is persuaded that the judge’s decision to refuse to entertain the human rights claims was outside the ambit of his discretion, but he argued on behalf of the appellants that the judge’s decision was unreasonable.

[22]The appellants also submitted that, although the original claim had been brought within the statutory time limit, a new application in a different court would be out of time so that they would only be able to proceed if given permission to bring the application. Furthermore, they argued that transferring the case to another jurisdiction simply to exclude TL was illogical when her interests were inevitably engaged in the litigation and her participation would be required in the proceedings. It was also argued that fresh proceedings in another court would incur greater costs and delay. In oral submissions, Mr Smith added that any objection to the exercise of the court’s jurisdiction should have been raised and considered much earlier in the proceedings. For these reasons, the judge’s decision on this issue was wholly contrary to the overriding objective and outside the ambit of his discretion.

[23]In oral submissions, Mr. Smith also drew attention to the fact that an earlier claim had been made in the county court but discontinued because the appellants thought it better to pursue the remedy in the Court of Protection before a judge with specialist knowledge of this area. As the local authority acknowledged, however, the appellants are not thereby prevented from filing a new claim in the county court.

[24]In reply, Mr. Parishil Patel, instructed by the Official Solicitor behalf of TL, submitted that, with regard any claims that TL may have under the Human Rights act, it was for the Official Solicitor as TL’s litigation friend to decide whether or not to bring such claims on her behalf within the Court of Protection proceedings. It was not open to the appellants to take it upon themselves to bring a claim on her behalf within these proceedings, either for a declaration or for damages. In support of this submission, Mr Patel relied on the observations of Sir James Munby P in London Borough of Redbridge and others v Associated Newspapers Ltd

[2014] EWCOP 1361

. In that case, a newspaper group (“ANL”) had sought to be joined as a party to Court of Protection proceedings or allowed to intervene in relation to issues of P’s capacity and best interests on the grounds that otherwise relevant arguments may not be put before the court. At paragraph 54, the President observed:

“either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in [P]’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for [P].”

[25]In response to this argument, Mr Smith pointed out, unlike ANL in the Redbridge case, PL and KC are already parties to these proceedings. Mr Patel, however, emphasised that the point on which he relied arising from the President’s observations in the Redbridge case was that it was a matter for P’s litigation friend to decide whether or not to seek a remedy and, if any person wished to challenge that decision, the remedy was to seek the removal of the litigation friend.

[26]With regard to Judge Marston’s decision in respect of the appellants’ human rights claims, Mr Patel submitted that the decision was within the ambit of the judge’s discretion. He contended that PL and KC would not be prejudiced because the county court would be able to make findings concerning the treatment of TL when considering the appellants’ claims even though no person was seeking relief for any alleged breach of TL’s rights. Mr Patel submitted that the decision in YA(F) is distinguishable because in that case(1) a claim on behalf of P was being pursued by the Official Solicitor alongside the claims brought by members of P’s family and

(2) Charles J concluded that the welfare issues underpinning the human rights act claims had to be resolved in P’s interests, whereas in the present case welfare issues concerning TL had been resolved.

[27]On behalf of the local authority, Ms Marie Leslie adopted the submissions put forward by Mr Patel. She sought to draw a further distinction between this case and the decision in YA(F). In the earlier case, there remained outstanding issues relating to P’s future care to be resolved by the Court of Protection. Thus, in the words of Charles J at paragraph 14, “to put it at its very lowest, there is a high risk of overlap between the events which are relevant to the claims based on Convention rights and the facts and matters which the court must consider to make a properly informed decision on best interests.” In contrast, as Ms Leslie submitted, following the report of Mr Gilman-Smith and the agreement reached between the parties as to future conduct, there are no outstanding welfare issues in the present case.

[28]In oral submissions, Ms Leslie further contended that the appellants had expressed their claim as being for “declarations and damages sought under Human Rights Act 1998” and that their agreement to withdraw the claim in respect of TL should be seen as withdrawing the claim in its entirety, including the claim for a declaration. She submitted that this explains why there is no specific reference to the declaration in the judgment or order.

[29]Following an invitation by the court for clarification as to the local authority’s position, Ms Leslie indicated that the authority accepted that the appellants should be entitled to pursue their claims in the County Court and that the authority would not rely on any argument that their claims were time-barred.

[30]In reply, in answer to an enquiry by the court as to the disadvantages to the appellants resulting from the course taken by Judge Marston, Mr Smith submitted that the costs provisions would be different and volunteered that he would only advise PL to bring a claim if you could secure insurance. Whilst accepting that there was now an agreement as to contact, he also pointed out that, if contact does not proceed as agreed on 6 May 2016, there would be further best interests proceedings so that the risk of overlap identified by Charles J in YA(F) is also present in this case.

Human rights appeal – discussion and conclusion

[31]It must be remembered that, in considering an application for permission to appeal, the court is not deciding the merits of the application afresh but, rather, deciding whether there is a real prospect that the appellants would succeed in proving that the judgment at first instance was wrong or unjust.

[32]I deal first with the appellants’ argument that TL’s claim for a declaration that her human rights had been breached was still at large. It seems plain to me that Judge Marston assumed that it was not. In the exchanges that followed his judgment on this issue, neither Mr Smith nor any other person raised this point. Even if the claim was still at large, it seems to me that it was manifestly not open to the appellants to bring such a claim on TL’s behalf within these proceedings when the Official Solicitor was acting as her litigation friend. If the appellants were dissatisfied with the Official Solicitor’s approach to this issue, the remedy was to apply for his removal as litigation friend. There is, in my judgment, manifestly no merit in the appellants’ proposed appeal in respect of a claim for a declaration that TL’s rights were breached.

[33]So far as the appellants’ own claims are concerned, in order to succeed on appeal they would have to prove that Judge Marston’s decision to dismiss their claims was outside the ambit of his discretion. He decided that it was important in the interests of TL’s welfare to protect the newly-reached agreement about contact by separating the appellants’ human rights claims from the Court of Protection proceedings. After years of contested litigation over the issue of contact, he was understandably anxious not to jeopardise the agreement which had finally been reached following Mr Gilman-Smith’s report. The judge hoped that, by requiring the appellants’ claims to be pursued in a different jurisdiction, without involving TL as a party or the Official Solicitor as litigation friend, he might shield her from any potential fall-out from the ongoing contested litigation. This is entirely laudable and a matter which he was plainly entitled to take into account in exercising his discretion.

[34]I do not accept that the appellants are put at any disadvantage as a result of this decision. Contested issues of fact about the history of the family’s involvement with a local authority can be resolved just as easily in the county court. Furthermore, I do not accept that the appellants would be at any greater risk of costs in the county court that they would be if the dispute were resolved in the Court of Protection. COPR rules 156 and 157 provide general rules about costs in Court of Protection proceedings concerning, respectively, property and affairs and welfare. COPR rule 156 is not relevant to this case. COPR rule 157 provides:

“Where the proceedings concern P’s personal welfare the general rule is that there will be no order as to costs of the proceedings or that part of the proceedings that concerns P’s personal welfare.”

A claim brought by the appellants under the Human Rights Act does not, however, concern TL’s personal welfare and therefore does not fall within rule 157. COPR rule 160 provides that “Subject to the provisions of these rules, Part 44, 47 and 48 of the Civil Procedure Rules 1998 [“CPR”] … shall apply with the modifications in this rule and such other modifications as may be appropriate to costs incurred in relation to proceedings under these Rules as they apply to costs incurred in relation to proceedings in the High Court.” Amongst the various provisions as to costs in the CPR, rule 44.2 (2) provides that “If the court decides to make an order about costs, (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.” For proceedings in the Court of Protection that fall outside both COPR rule 156 and rule 157, the Court adopts the same approach to costs as the civil courts. The issue of costs in respect of the human rights claims brought by the appellants will therefore be determined in the same way whether the proceedings are litigated in the Court of Protection or the county court.

[35]The only way in which the appellants could conceivably be prejudiced by Judge Marston’s order would be if their claims were time-barred in the county court. The local authority has now indicated, however, that it will not rely on such an argument in the county court (a concession which should be recited in the order drawn at the conclusion of this appeal).

[36]In the circumstances, it seems to me that Judge Marston’s order in respect of the human rights claims cannot be described as either wrong or unjust. I can therefore see no realistic prospect of the appellants succeeding on an appeal in respect of the decision concerning their human rights claims, nor any other compelling reason why the appeal should be heard. Their application for permission to appeal on this issue is therefore refused.

RPR appeal – submissions

[37]In the skeleton argument filed on behalf of the appellants, it was submitted that, as TL is subject to a standard authorisation for the deprivation of liberty, she is entitled by statute to a relevant person’s representative. That RPR is required to consult anyone involved in TL’s care. It was submitted that that obligation arises as a result of s.4(7) of MCA supported by guidance published by the Department of Health entitled “Deprivation of Liberty Safeguards: A guide for relevant person’s representatives” which provides inter alia “In your role as the RPR, you should consult with carers and anyone who has an interest in the relevant person’s welfare to ensure that all decisions are made in their best interests.”

[38]In this case, JM had previously acted as TL’s IMCA in a safeguarding investigation. It is claimed by the appellants that in neither role had he consulted either of the appellants, despite repeated written requests. Instead, as described above, he made what is described in the skeleton argument as “nuisance calls” to PL, which continued despite complaints. It was submitted that this failure to consult is an ongoing breach of TL’s human rights and is disruptive to the relationship between PL, KC and the local authority and therefore to contact. The situation is said to be similar to that which arose in Re AJ (Deprivation of Liberty Safeguards)

[2015] EWCOP 5

[39]The appellants contended in their skeleton argument that it was perverse of the judge to hold that this was an issue of the past because the failure to consult is ongoing. It was equally perverse for the judge to hold that this matter should be pursued by official complaint because it was in evidence that official complaint had already been made. The judge’s conclusion that he lacked jurisdiction to intervene is described as “deeply wrong” because he ignored his statutory duties to act in accordance with the Human Rights Act 1998 and TL’s article 5 rights.

[40]In reply, Mr Patel submitted that there is no arguable basis to conclude that Judge Marston had been wrong to dismiss the application with regard to the RPR. It was not wrong for him to conclude that he should not deal with the application within the current welfare proceedings which related to contact arrangements between TL and the appellants and not to those matters with which the RPR was concerned, namely the standard authorisation and other matters in Schedule A1 to the MCA.

[41]In addition, Mr Patel identified three other obstacles to Judge Marston determining the application. First, as this was a discrete application unconnected to the existing Court of Protection proceedings, KC needed permission to bring it: MCA s.50(2). In oral submissions, Mr Patel added that KC had no locus to make the application. Secondly, natural justice demanded that the RPR be made a party to the application and to be given an opportunity to address the concerns expressed by the appellants. To this, Mr Smith responded that the RPR had been given notice of the application. Third, under the statutory scheme, Parliament had entrusted the supervisory body with the power to terminate the appointment of the RPR. There was no evidence before the judge to show that the appellants had brought the concerns about the RPR to the attention of the supervisory body, nor that those concerns had not been acted on properly. There was therefore no factual basis for the contention that Judge Marston was acting contrary to Article 5 in failing to make the declaration sought. Mr Patel added that there was also no legal basis for the contention because, in contrast to the situation in Re AJ, there was no basis upon which it could be said that the alleged failure of the RPR to consult the appellants gave rise to a breach of TL’s rights under Article 5(4) so as to require the termination of the RPR’s appointment by the supervisory body, or that, in the absence of the statutory body taking appropriate action, the court was acting in breach of TL’s Article 5 (4) rights in not making the declaration. Mr Smith replied that the appellants had complained to the local authority about the RPR but had received no satisfactory response.

[42]Mr Patel’s submissions were adopted by Ms Leslie on behalf the local authority.

RPR appeal – discussion and conclusion

[43]I have previously delivered two lengthy judgements on the selection, appointment and functions of RPRs – Re AJ, supra, and, more recently, Re RD and others

[2016] EWCOP 49

. This is not the occasion for a further exegesis on those matters.

[44]Judge Marston did not address the question whether he had the power on KC’s application to dismiss JM as RPR. He confined himself to the question whether it was appropriate to make that decision in the context of proceedings concerning matters about TL’s best interests, and specifically her contact with her father. He held that he did not, because, as he put it, “this application has got nothing to do with him” (i.e. the RPR). But, in addition, he held that the issue was not the real issue the proceedings before him but, rather, “a massive distraction – an issue of the past”. The judge acknowledged that the misdirected telephone calls “should not have happened”, particularly given the long history of distrust between PL and the local authority. He also expressed the view that an apology should have been offered earlier. It was his view, however, that these matters should have been pursued by an official complaint to the local authority, rather than an application to the court for the removal of JM as RPR.

[45]In my judgment, Judge Marston was right to refuse to accede to this application. I agree with his analysis that JM’s position as RPR was outside the ambit of the proceedings before him. The role of the RPR, as discussed in Re AJ and Re RD, is to represent and support P in matters relating to or connected with Schedule A1 of the MCA – the Deprivation of Liberty Safeguards. A RPR does not have a wider ongoing role in respect of P’s best interests. His functions are confined to those set out in the Schedule, supplemented by the Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice.

[46]Paragraph 7.3 of the Code provides: “The best interests principle of the Act applies to the relevant person’s representative in the same way that is applies to other people acting or making decisions of people who lack capacity. It follows that, in carrying out his functions under the Schedule, a RPR must, as Mr Smith submitted, comply with s.4 of the Act, including the obligation under subsection (7) (b) to take into account, if it is practicable and appropriate to consult them, the views of anyone engaged in caring for P or interested in his welfare. But the fact that a RPR is obliged, when carrying out his obligations under the Schedule, to have regard to the best interests principle and the statutory provisions concerning that principle does not mean that he has a wider role in respect of P’s best interests.

[47]In the circumstances, I conclude that Judge Marston was entirely justified in refusing to make an order dismissing JM as RPR in the context of proceedings concerning TL’s contact with her father.

[48]Furthermore, although not addressed in the judgment, it seems to me there is considerable force in the three procedural points raised by Mr Patel in his submissions to this court. First, by way of preliminary step, KC would have needed permission to bring this application. It is by no means certain that she would have been granted permission, although had that point been argued it seems likely that PL, as TL’s father, would have taken on the role of perspective applicant. Secondly, there is the issue of notice to the RPR. Mr Smith told me in oral submissions that JM had been given notice, but it seems to me that, before any order was made removing him from his post, the RPR should have be given a formal opportunity to reply to the application. Thirdly, Mr Patel is in my judgment right to say that under the statutory scheme Parliament has entrusted the local authority as supervisory body with the power to terminate the appointment of an RPR. The circumstances in which the appointment of an RPR can be terminated are set out in regulation 13 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008.

(f) and (g),where:

“(f) the supervisory body terminates the appointment because it is satisfied that the representative is not maintaining sufficient contact with the relevant person in order to support and represent them; [or] (g) the supervisory body terminates the appointment because it is satisfied that the representative is not acting in the best interests of the relevant person”

There is no reference, either in regulation 13, or, so far as I can see, in the Code of Practice, to the Court of Protection having the power to remove the RPR. My preliminary view, therefore, is that Mr Patel is correct in saying that the decision whether to dismiss and RPR is a matter for the supervisory body. If this is right, it follows that any challenge to the local authority’s failure to dismiss an RPR should be made by way of judicial review to the Administrative Court rather than to the Court of Protection.

[49]These issues were not, however, fully argued before me and I expressed no final view on them. In my judgment, Judge Marston was right here to take the course he did concerning the application to remove JM as RPR for the reasons he gave. The issue of the appointment did not arise in the proceedings before him which were concerned with welfare matters, in particular contact.

[50]I therefore conclude on this issue that there is no real prospect of the appellant succeeding in an appeal against this decision, nor any other compelling reason why the appeal should be heard. Permission to appeal on this issue is therefore also refused.

[51]I will deal with any subsidiary issues on paper. I will be grateful if Mr Patel would draw up an order reflecting my decision and submitted for agreement the other parties.