Let’s talk about court processes: part 4 – concluding proceedings

This post follows on from my previous three posts about court processes here and will continue to refer to the same example case where the local authority is seeking an order authorising deprivation of liberty as being in P’s interests. P is represented in these proceedings by the Official Solicitor, and this is funded through legal aid. P’s mother is not in agreement with the plan so the proceedings have gone through the standard process, rather than the streamlined process.

We’ve had a number of hearings and the judge has made a decision that it is in P’s interests to remain resident in his current supported living placement. There have been various interim orders to this effect during the proceedings, but now a final order is needed so the proceedings can be concluded.

There is a standard order that is used in the streamlined process cases, and that will be used as a template for the final order in these proceedings too, but it will need altered to reflect the particular circumstances of this case and the process followed.

But in essence, it will say that there has been a hearing, the judge has heard evidence from all parties and has determined P’s best interests. It will declare that it is in P’s best interests to remain resident in the identified placement and that the care plan, which amounts to a deprivation of liberty is authorised.

That isn’t the end of it, though, because the arrangements for P’s care will need reviewed. Whenever the court authorises a deprivation of liberty, it only does so for a period of time which, in a standard streamlined case is usually 12 months. So the order will make provision for the local authority to make a new application no later than 2 months before the expiry of the 12 month period (so 10 months from the date of the final order). It will also set out whether the application is to be made under the streamlined procedure or not.

In this case, because of the dispute, the judge was considering giving authority for 6 months, and requiring a review application be made within 5 months. This would have presented a dilemma because if they were making a new application, then the local authority would have to start the whole process from scratch and pay the application fee again, so there was a conversation about whether the order should be another interim order, and these proceedings remain live.

Luckily, however, at the last hearing, P’s mother agreed the placement, after the arrangements for contact between the two were altered to allow more regular contact. This removed the dispute, and so the judge decided that 12 month authorisation was appropriate. But given that there had been a dispute, the wording of the order is that if there is no dispute when the review is conducted, the streamlined process is to be used, but otherwise an application will need to be made using the standard process. This would be the case whether this was specifically set out in the order or not, but capturing it in the order provides clarity, especially since mum does not have legal representation.

What the order also says, very clearly in all such cases, is that the authorisation covers the restrictive measures contained in the care plan that has been approved by the court. It is not carte blanche approval for any and all restrictions. So if the local authority wants to change the Care plan in the future, it needs to ask itself 2 questions:

1) will the changes make the plan more restrictive of P’s article 5 rights?

If the answer is no, then the changes can be made following proper Care Act review processes.

But if the answer is yes, then the court will need to approve the changes, so question 2 needs considered

2) are the changes needed as a matter of urgent necessity?

If the answer is no, then the care plan can’t be changed without making a further application to the court and filing all the required evidence as to what the changes are and why these are necessary and proportionate.

If the answer is yes, then the changes can be made but an application must still be made as soon as possible. It is important that the reasons why there is urgent necessity are recorded, to avoid later challenge that the actions taken whilst the order was awaited are unlawful.

So P’s social worker needs to be very clear in their case recording of the order, the approved care plan and the date the review is due etc. And if changes are to be made to the care plan, they must be clearly rationalised with appropriate consideration of the impact on P’s rights, necessity and proportionality.

It will also have to be factored in that whilst some impact on article 8 rights will be expected and authorised by implication (in that stopping P living with his mother does interfere with his right to private and family life), any greater interference with those rights will need to be separately authorised. So, for example, if visits with mum need to be supervised in the future, or to be limited so that they only take place in the supported living facility, then additional authority will need to be obtained through a further application to the Court of Protection.

The final thing to be considered is costs. The cost of court proceedings is often at the forefront of people’s minds, and it creates some confusion. Because some people try to apply the cost rules for civil proceedings in the Court of Protection, but this is incorrect.

You see, if the local authority was involved in, say, breach of contract proceedings with one of its suppliers then all parties would be aware that whoever ‘won’ the case would expect to have their legal fees paid by the party who ‘lost’. Since costs can often be higher than the actual compensation awarded in many cases, this is a big incentive for such cases to be settled out of court. These rules are actually more complex than many people realise, but that’s the basic gist.

But in the Court of Protection, the general rule is that each party pays their own costs, regardless of the outcome. The way I see it, there are a number of good reasons why this is the case, including the fact that proceedings are more investigatory in nature and their is rarely a clear ‘winner’ or ‘loser’, since all parties are working towards the same aim: the best interests of P, and so encouraging parties to be adversarial by making costs an issue could result in decisions being made on a commercial basis. For example, if mum had continued to insist upon P residing with her, proceedings could have dragged out longer. If the local authority was faced with meeting all parties’ costs in the event that the judge agreed with mum, then it would be very tempting to over stretched local authorities to ‘cut their losses’, as it were, and agree to mum’s proposal just to preserve resources, even if this wasn’t actually in P’s best interests.

Also, in many cases there won’t be a ‘winner’ or ‘loser’ because the proceedings are required as a principle of law, such as to ensure human rights compliance, rather than because of any kind of disagreement.

It is possible for the court to order that one party pay another’s legal costs, in full or in part, but this isn’t the norm and is generally only used if one party has been unreasonable in their conduct of the proceedings by, for example, deliberately withholding information.

So why I am mentioning costs at all?

Firstly, because I have encountered many solicitors who are unclear on the costs rules and so will write the kind of letter that is expected in a breach of contract claim saying ‘if you don’t give our client what they want, we’ll commence proceedings and seek payment of our costs’ in what is intended to be a bit of a scare tactic. Most of the time, when I read a letter like this in relation to COP proceedings it just makes me sigh, and then I write a letter educating them on the Court of Protection rules. So don’t be intimidated by such tactics, please.

I also mention costs because this is referred to in the final orders in almost all standard process cases. What the order will say is ‘no order as to costs save for the assessment of P’s publicly funded costs’. What this means is that all parties pay their own costs except that because P received legal aid rather than paying for solicitors himself, there is a process that will follow after the final hearing which will have absolutely nothing to do with either P, his mum or the local authority whereby P’s solicitors will evidence that they aren’t overcharging the Legal Aid Agency. I’m simplifying, of course, but I mention it so that when you receive an order, you understand what that wording is about.

And generally, once we have received the sealed (stamped by the court so that it is in force) order, my team will send the order to the social worker for them to add to P’s file. After that we wait for the court to invoice us for the hearing fee that is payable at the end of proceedings that have required hearings and once that has been processed, we’ll close our file. Some end up getting reopened because, for example, authority is needed for changes to care plans as I have set out above, or because P needs to move placement and that placement needs approval or whatever.

Thankfully, not all of them do, though, and this will often mean the end of that particular journey into the working of the court of protection.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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