Re D: A v B  EWCOP 1
Court of Protection permission (1) The appropriate threshold for permission under MCA 2005 s50 is the same as that applicable in the field of judicial review: to gain permission the claimant or applicant has to demonstrate a good arguable case. (2) In the current case, the decision to be made was "whether a good arguable case has been shown that it is in [D's] best interests for there to be a full welfare investigation of the current contact arrangements" and the judge's conclusion was: "I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted."
The ICLR case summary says "a good arguable case or a real prospect of success" but really should say "a good arguable case".
This case has been summarised on 39 Essex Chambers, 'Mental Capacity Report' (issue 101, February 2020).
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
Court of Protection
A v B and others
2019 Dec 18; 2020 Jan 20
Mental disorder— Court of Protection— Permission to apply— Mother seeking to apply for order under Mental Capacity Act 2005 but requiring permission to make substantive application— Determination of appropriate threshold to be met by applications requiring permission— Mental Capacity Act 2005 (c 9), s 50(3) When determining an application for permission to bring a substantive claim under section 50(3) of the Mental Capacity Act 2005 the appropriate threshold to be considered by the court is the same as that in judicial review proceedings, namely that the applicant must show a good arguable case or a real prospect of success (paras 3, 4, 5).
Where, therefore, the mother of a young man impaired by autism applied to the Court of Protection for permission to bring a substantive application concerning the nature and quantum of her contact with her son, but did not fall into one of the categories where permission was not required as set out in section 50(1) of the 2005 Act—
Held, refusing the application, that the mother had not shown a good arguable case that a substantive application would succeed if permission were granted (post, paras 13, 14).
Sophy Miles (instructed by Miles & Partners llp) for the mother.
Alexis Campbell QC and Katherine Scott (instructed by Mishcon de Reya llp) for the father and other respondents.
Thomas Barnes, Solicitor