KD and LD v LB Havering (2009) EW Misc 7 (EWCOP)
At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article 6, and arguably Article 8, in that P's mother was not in court to provide instructions and there was a distinct possibility that she lacked litigation capacity. Considering the difficulties involved, including delay, it was no answer to allow the mother to bring parallel proceedings by way of an application to vary. (4) It was procedurally unfair to to proceed without awaiting the OS's instructions. (5) The judge was minded to consider that the outstanding expert report was no longer appropriate, but it was a wrongful exercise of discretion and procedurally unfair not to allow representations as to why nonetheless it was appropriate to wait. (6) It was wrong to make such a sweeping order delegating unfettered future management power, without the necessary review procedures; it was particularly wrong to do so without warning to or hearing from the parties, which in the mother's case was a disproportionate breach of Article 8. (7) The personal welfare deputy was appointed without a proper examination of the statutory and procedural requirements, in breach of the procedural rights of the mother as they then appeared; it was also unsatisfactory that instructions from the OS were not awaited.
Before: HHJ Horowitz QC
Hearing: 19 August 2009
Judgment: 19 October 2009
Andrew Bagchi (instructed by Fisher Meredith) for the Official Solicitor on behalf of KD (the mother)
Victoria Butler-Cole (instructed by Irwin Mitchell) for the Official Solicitor on behalf of L D (P, the son)
Dermot Casey (instructed by the London Borough of Havering) for the Respondent local authority
Summary from Court of Protection 2009 Report
LD is 21 and has spastic quadriplegia, cerebral palsy, and learning disabilities. His mother and primary carer, KD, has mental health problems of her own. In January 2009 the London Borough of Havering applied to the Court of Protection for an order regarding his residential placement, an order to replace the mother as his deputy for property and affairs, and an order that the council be appointed as his personal welfare deputy. On 9 April 2009 a District Judge dealt with the matter summarily at an attended hearing, and allowed the local authority’s application in its entirety. On allowing an appeal by both KD and LD, Judge Horowitz considered the effect of rule 27 of the Court of Protection Rules 2007 (“Exercise of powers on the court’s own initiative”), and concluded that the District Judge had “achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the court instead of a hearing,” and that there was a breach of procedural fairness and of Article 6 of the ECHR.
 WTLR 69,
Havering London Borough Council v LD and KD (2010) COP 1144388/03
Court of Protection: 2009 Report - published 10/6/10 - Summary on page 17