I have been reading some of the posts by the wonderful Court Protection transparency project recently, and noticed that there was a number of them exploring the issue of contempt of court within Court of Protection proceedings. One of them in particular, commented on what appeared to be a significant difference between the consequences for a family member if they did not comply with an order, versus the consequences for local authorities when they did not comply. This got me thinking about why this is, or at least why it can be. Although it can appear to an outsider as an element of bias or unfairness, there are a few reasons why this tends to happen, that I can identify, which aren’t symptoms of a broken system. I’m going to cover these in a series of posts.
The first reason comes down to the way the orders themselves are written and the technicalities of how they are applied. You see not every paragraph and an order is created equal. An order, generally, is comprised of four different elements.
Firstly, we have what are called recitals. These are essentially some explanatory paragraphs at the start of an order. They usually explain things like who was at the hearing, what applications have been made and some of the basic reasons why the order itself is being made in the way that it is. Sometimes, there might be a recital that includes a suggestion or a recommendation from the judge. This is usually on something that is either outside the scope of the proceedings, or is aimed at somebody who is not a party to the proceedings. They are not binding on the parties or anybody else, but they are indicative of what the judge thinks should be happening and they can be a precursor to more binding elements if they are not complied with. An example being, “the court expects that all records will be kept up to date and accurate and shared with the parties on request.” This would be aimed at the care home, for example, who wouldn’t be a party to the proceedings. So if they don’t keep those accurate records then they are not going to be found in contempt of court because the order isn’t binding on them. But if they don’t comply with that recommendation, then it is likely the court will add them as a party to the proceedings so that it can then make binding orders upon them in the future. So these act as a bit of a warning, and are often used to smooth over inter-organisational disputes.
Secondly, the bulk of an order will often be taken up by what are called directions. The set out what evidence is due from whom and by when. They usually include bullet points of what each party statement needs to cover. A deadline is always given. For example, “the local authority will file and serve a statement by the 28th of February setting out it’s best interests analysis.”
It is this element of the order that public bodies usually find themselves in breach of. Either their statement will not be provided by the deadline given, or the statement will not provide evidence addressing all of the points that were set out in the order.
Now these elements of the order are binding upon the parties. But the Court of Protection rules also allow the parties to agree variations to the time table, so long as this does not affect the effectiveness of the hearing. So when a statement is 7 days late, for example, the rest of the timetable can usually still be adapted so that the evidence is provided and the hearing can still go ahead. Consequences would usually only apply if the effectiveness of the hearing is impacted by the failure to comply.
Thirdly, the order will contain declarations. These are findings by the judge on an issue in dispute. They do not require any party to do any particular thing, they merely state the lawful position. Most commonly these declarations will either state that a person does or does not have capacity to make the decisions in dispute or state what is or isn’t in the person’s best interests. For example, “it is declared that it is in P’s best interests to remain at placement 1 and receive care in accordance with their care plan.”
It is also declarations that are used to authorise a deprivation of liberty. A declaration will be made saying that the deprivation of liberty is lawful and in P’s best interests. So breach of a declaration is unlikely to occur in practise, by their very nature.
Fourthly, an order may contain paragraphs that require a party to do or not do something in relation to the declarations. Somewhat confusingly, these are also referred to as orders. So we’re talking orders within the overriding order. So lovely and clear for all you non-lawyers to try and understand. But I digress.
This type of paragraph is less common, and an order will often not contain such paragraphs because there is no need. The most common example of this type of order appears within the transparency order that is made at the commencement of all Court of Protection proceedings. That order specifies that information about the proceedings cannot be disclosed to non-parties outside of particular circumstances. But this type of paragraph might also appear in other orders, for example, a statement that all parties must not interfere with attempts to convey P to a new placement, or disrupt the carers going into the property to support P. A judge will only make this type of order if there is a clear reason to. So in a situation where there has been no evidence that any party is likely to interfere with a plan, the judge would not agree to such a provision being included in the order. When this appears in an order, this is indicative that there has been some historic issues of compliance and interference by one party with attempts to support P made by another. The most common example of this that I’ve come across is when P is living at home with a family member and a family member has been rude or inappropriate with the carers coming in. I’ve also had cases where the family member has been trying to provide care to P themselves using potentially unsafe manual handling techniques, creating risks that visiting professionals can’t accept.
This type paragraph will often appear following discussions between all of the parties and may be agreed to by everyone. In the type of circumstances I was just setting out, once there has been a round table meeting and the concerns have been clearly explained to that family member, they might agree to the order being in place and give assurances that they will comply with that. The other parties will then explain that to the judge. This is seen as attempts to move towards better relationships between family and public authorities in cases where historically there has been a bit of a breakdown in trust. These paragraphs within an order are binding on all parties.
As I have said, most commonly it is directions that are not complied with rather than other elements of the order. Whilst it is common that that breach would be from the public body, it won’t always be and often family members or those representing P will also have difficulties providing the evidence at the time set out by the judge in the previous order.
The consequences for failing to comply with this element of an order are the same regardless of which party is in breach. It is, theoretically, possible for the judge to apply consequences for a party failing to comply with directions. Those consequences are usually a good telling off in the next hearing.
The judge does have other powers. For example, the judge can refuse to admit or take into account evidence that is not provided in accordance with the directions order. The judge can also decide to make a decision based on the evidence available, even though this might mean that one party feels they haven’t been able to truly have their say. The judges rarely use these powers, however. And the reason for this, in my view, comes down to the purpose of Court of Protection proceedings. The vast majority of court proceedings in this country are adversarial. One party is arguing for one thing. Another is arguing for something different and the court is to determine the “winner”. In such cases, it is for each party to clearly state their case and if they do not take the opportunity to do so, then it is appropriate for the judge to proceed on the basis of the information they have available.
But the Court of Protection is a bit different. It’s not supposed to be adversarial. It’s supposed to be everybody pulling together all of the information that they have available to them in order to help the judge make the best decision for P. So refusing to consider a particular piece of evidence, or proceeding to make a decision where there is still a gap in the evidence wouldn’t serve to to punish that offending party, so much as it would result in the judge making a decision without all of the information. And the person most likely to experience a detriment is P themselves.
In the commentary that I had been reading from the transparency project, the elements of the order that family members had been found to be in breach of were the specific orders with a capital O. It is far more common for a family member to be in breach of that element of an order, than for a public body to be. And the consequences for breaching this element of an order are more serious because of the impact that has. Generally speaking, failing to comply with a direction impacts the lawyers and the court and it causes delay and inconvenience and irritation. Annoying, definitely, but not generally something that needs to attract serious consequences such as contempt of court proceedings. But the impact of interfering with the specific Order are that the decisions of the court cannot be put into effect. If the court is determined that a particular action is in P’s best interests, then it would undermine the whole purpose of proceedings, if any party could choose to disregard that decision and make it impossible for any course of action other than their preferred course of action to be implemented. In that situation, it is P themselves that is experiencing the detriment. Because the court has decided that that is in P’s best interests. So anything other than that is a negative impact on P that the court cannot condone.
It goes to the very purpose of the Court of Protection’s existence that it needs to be able to apply significant consequences for breaches of particular elements of the order, for it to have any effectiveness whatsoever. If a party can simply ignore an order that they do not agree with, it makes a farce of the whole process. Given the amount of public resources that go into these types of proceedings, it is self-evident that it needs to be possible to enforce decisions of the court.
In these types of situations, the differing consequence is not because of the party in breach, but rather because of the different element of the order in breach. And a public body is much less likely to fail to comply with the specific Orders than a family member is, because they are professionals who are much more aware of the differing expectations from different parts of an order. They are more likely to have consistent legal advice and, frankly, have less “skin in the game”. It is family members who tend to become so emotionally invested in an outcome and so are willing to risk these most serious of consequences.
I hope that this helps those of you who have been reading these blofs to have a little bit more insight into why the consequences can appear to be so different when orders are breached. This is by no means the only reason, and I will be covering the other reasons in subsequent posts.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.
The explanation about recitals, directions and operative orders is legally accurate, but it does not fully address the deeper concern many families raise. The problem is not simply “disparity of consequences.” It is what happens when the underlying order itself is flawed, whether through procedural unfairness, misapplication of the Mental Capacity Act 2005, or disregard for Convention rights.
In theory, the answer is “appeal.” In practice, repeated appeals can be dismissed without substantive engagement, even where serious statutory and human rights issues are raised. At that point, enforcement begins to look less like protection of the court’s authority and more like insulation from scrutiny.
If a public authority misses deadlines, it is often treated as a case management issue. When a family member challenges the substance of an order, particularly where they believe evidence has been ignored, enforcement mechanisms are activated quickly and decisively.
The distinction between breaching directions and breaching operative provisions explains part of the picture. But it does not address the concern that operative provisions may themselves rest on contested or procedurally compromised findings.
Respect for court orders depends not only on enforceability, but on confidence that those orders were reached through transparent, lawful and proportionate processes.
Where repeated attempts to challenge alleged statutory or human rights errors fail to receive meaningful engagement, the legitimacy question does not disappear, it intensifies. Courts derive authority from public confidence. Not just from enforcement powers.
And if confidence erodes, enforcement alone cannot repair it.
That is not rebellion. That is jurisprudence 101.
Law survives by correcting itself. If it refuses correction, history becomes unkind.
Thanks for taking the time to comment. I am planning some further posts on other reasons why I think the disparity exists, and your views are helpful with that.