Simon Wilkinson, Parklane PlowdenThe Covid-19 pandemic has infiltrated every aspect of our lives. Within the courts and tribunals service there has been a plethora of guidance since March 2020 which...
Mani Singh Basi, Barrister, 4 Paper BuildingsLucy Logan Green, Barrister, 4 Paper BuildingThis article considers the interplay between private and public law proceedings, focusing on the law relating...
The Ministry of Justice has launched a consultation on the proposed transfer from Her Majesty's Courts and Tribunals Service to the Legal Aid Agency of the assessment of all civil legal aid bills of...
VULNERABLE ADULT: KD and LD v Havering London Borough Council
Sep 29, 2018, 17:11 PM
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article :
Prioritise In Trending Articles :
Oct 19, 2009, 04:22 AM
Article ID :87241
(Court of Protection; HHJ Horowitz QC sitting as nominated circuit judge; 19 October 2009)
In the Court of Protection a district judge had the jurisdiction to determine a case summarily, but this jurisdiction must be exercised appropriately and with a modicum of restraint.
The power to make an order of the court's own initiative without hearing the parties or giving them an opportunity to make representations did not extend to engagement in that procedure at the outset of a hearing in which the parties were in attendance, all the more so in expectation of procedural and no other steps.
It was plainly a power to be exercised as an alternative to a hearing and in the proper case, such as an emergency or where there was little or no apparent contest anticipated to the exercise of the court's powers. It was not likely to be an appropriate power to be exercised where the outcome was a deprivation of liberty in circumstances where there was a serious issue or potential issue as to whether that was appropriate, and so where European Convention on Human Rights, Arts 5 and 6 were engaged.
Further, where the court had previously ordered expert social work evidence to inform its position as to best interests, but that evidence was not available yet and there had been no relevant change in circumstances suggesting that such evidence was no longer required, a summary determination was inappropriate.
If the court was minded to consider that an outstanding report was no longer appropriate, it would be a wrongful exercise of discretion and procedurally unfair not to allow the parties to urge on the court reasons why nonetheless it was appropriate to wait for evidence already commissioned.
A generic order authorising placement at the named nursing home 'or such other establishment as shall be recommended' was inconsistent with the new regime; a sweeping unfettered delegation of future management power should not be made, particularly without proper warning or examination.