YA(F) v A Local Authority  EWHC 2770 (COP)
P and his mother brought claims under s7 HRA in the Court of Protection; the other parties asserted that only declaratory relief was possible as the CoP had no jurisdiction to hear and deal with (a) any of the mother's HRA claim or (b) the son's HRA damages claim, and that the claim should have been in the Queen's Bench Division. (1) The common ground that the CoP has jurisdiction to deal with P's HRA claim and grant declaratory relief was correct. (2) The CoP has jurisdiction (a) to hear argument on behalf of the mother that acts done in relation to P constitute breaches of her Convention rights and (b) to make declarations as to the lawfulness of such acts. (3) The CoP is a 'court which has power to award damages... in civil proceedings' under s8(1) HRA 1998 when exercising its HRA jurisdiction either because (a) in exercising its jurisdiction the CoP has the same powers as the High Court, which can award damages in such cases, or because (b) the CoP has power to award damages other than under the HRA. (4) There was therefore no need to transfer the claim to the QBD, but at the next hearing the relevant part of the proceedings would be treated as QBD proceedings, to ensure any award would have a jurisdictional base if the judgment was subsequently found to be wrong. (5) Those bringing the strike out application were ordered to pay half the mother's costs because they had not given any consideration to the negative procedural consequences of success, the other half being reserved because it was a legitimate jurisdictional issue.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
18. YA(F) v A Local Authority & Others  EWHC 2770 (CoP)(Mr Justice Charles, 2 September 2010) www.bailii.org/ew/cases/EWHC/COP/2010/2770.html In January 2008 YA(F) took her son to hospital. He was subsequently discharged from hospital to a placement, the identity of which was withheld from her. Both the mother and son brought claims for breaches of their rights under the European Convention of Human Rights; principally under Article 8, which provides a right to respect for family and private life. After a detailed consideration of both the Human Rights Act 1998 and the Mental Capacity Act 2005, the judge stated at paragraph 45 that “it therefore seems to me, and I conclude, that both linguistically and purposively, albeit possibly against the instinct of a number of lawyers dealing with a welfare jurisdiction, the Court of Protection does have jurisdiction and thus power to award damages under the Human Rights Act.”
Before: Charles J
MISS S MACHIN (instructed by the Local Authority) appeared on behalf of the Local Authority
MISS L CAVANAGH (instructed by Linder Myers LLP) appeared on behalf of the Claimant Mother
MR J O’BRIEN (instructed by the Official Solicitor as the litigation friend of YA(M)) appeared on behalf of the son YA(M)
MR N WOLFERSTON (Sol) appeared on behalf of the NHS Trust
YA(F) v A Local Authority, YA(M), A NHS Trust and A Primary Care TrustB
(Neutral citation was originally (Fam) although this is a Court of Protection case.)
 All ER (D) 112 (Jan)
Case No: 11559528
Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.