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Discharging obligations to P and the court

Alex Ruck Keene reports on a salutary tale where a local authority was found to have failed an 18-year-old man with autism.

In ND (Court of Protection: Costs and Declarations) [2020] EWCOP 42, the Court of Protection has alighted upon procedural failings by a local authority to ground the making of declarations as to failures of that authority to discharge its statutory obligations to the subject of proceedings.

The case concerned a young man, Nikolai D’Araille, with a diagnosis of Autism Spectrum Disorder (the man, himself, wished to be named in the judgment). In May 2018, an application had been made by Shropshire Council for care orders in respect of ND and his five sisters. Just prior to the issue of these applications, the mother left the jurisdiction to live with the girls in Poland. She and the girls had since remained living in Poland. At hearings in April 2019, the proceedings concerning ND were transferred to the Court of Protection; subsequently, Keehan J determined (exercising the inherent jurisdiction of the High Court) that ND was a vulnerable young person and made a declaration that protective relief under the High Court’s inherent jurisdiction was necessary in the interim pending expert evidence being obtained on the issue of ND’s capacity to make decisions in the relevant areas. That expert evidence concluded that he had capacity in all relevant domains, and Keehan J made a declaration to that effect in December 2019.

At that hearing, the Official Solicitor invited the court to exercise its powers under section 15(1)(c) of the 2005 Act and declare that the local authority had acted unlawfully by:

i) failing to provide ND with a choate pathway plan in accordance with its duties to ND as a relevant and now former relevant child under section 23 of the Children Act 1989;

ii) failing to provide ND with a choate care and support plan in accordance with its duties under section 25 of the Care Act 2014 (to include identification of suitable accommodation) and court order; and

iii) failing to support ND having regard to its statutory duties under the Children Act 1989 and Care Act 2014 which has exacerbated ND’s presentation, reinforced his poor view of the local authority, and resulted in ND being reluctant to engage with all professionals or seeking support should the need arise.

The Official Solicitor also invited the court to depart from the general rule on costs and make a costs order against the local authority, pursuant to Part 19.5 of the Court of Protection Rules 2017.  Several months later, and following written submissions and a further oral hearing, Keehan J ruled on both the application for declarations and the application for costs.

Declarations

Having conducted a review of the (distinctly unhappy) history of the local authority’s engagement with ND and also of its failures to comply with orders of the court requiring it to produce care plans.  Keehan J granted the declarations sought for the following reasons set out at paragraph 66 of his judgment:

i) between June and December 2019, it was necessary for me to grant five extensions to the deadline for the local authority’s final evidence, due to a series of non-compliance;

ii) during that period, the local authority had submitted plans on a number of occasions, however it became a recurring theme that the evidence submitted was not fit for purpose. On one occasion, the local authority sought my ‘advice and guidance’ on the steps to be taken. I agree with the submission made on behalf of the Official Solicitor, that the court is not an ‘advice centre’.

iii) I accepted the submission of the Official Solicitor that the hearing on 17th December 2019 could have been avoided had the local authority complied with court orders;

iv) I have in mind the words of then President, Sir James Munby [1], as well as my own words, in the case law cited by the Official Solicitor highlighting the importance of compliance with directions;

v) I am also persuaded by the case of R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin) [2] that the difficulties in ND’s behaviour and his failure consistently to engage positively with the social workers do not justify or excuse the failures of the local authority referred to above; and

vi) whilst there may be occasions when a local authority is faced with difficulties and does all that it can to make progress, but to no avail, the difficulties faced by the local authority in this case are not sufficiently cogent reasons for their failure to have progressed the matter in a more satisfactory and timely manner.

vi) whilst there may be occasions when a local authority is faced with difficulties and does all that it can to make progress, but to no avail, the difficulties faced by the local authority in this case are not sufficiently cogent reasons for their failure to have progressed the matter in a more satisfactory and timely manner.

Keehan J observed the observations of Lady Hale in N v ACCG [2017] UKSC 22:

40. The Court of Protection has extensive case management powers. The Court of Protection Rules do not include an express power to strike out a statement of case or to give summary judgment, but such powers are provided for in the Civil Procedure Rules, which apply in any case not provided for so far as necessary to further the overriding objective. The overriding objective is to deal with a case justly having regard to the principles contained in the 2005 Act (Court of Protection Rules 2007, rule 3(1)). Dealing with a case justly includes dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues and allocating to it an appropriate share of the court’s resources (rule 3(3)(c) and (f)). The Court will further the overriding objective by actively managing cases (rule 5(1)). This includes encouraging the parties to co-operate with one another in the conduct of the proceedings, identifying the issues at an early stage, deciding promptly which issues need a full investigation and hearing and which do not, and encouraging the parties to use an alternative dispute resolution procedure if appropriate (rule 5(2)(a), (b)(i), (c)(i), and (e)). The court’s general powers of case management include a power to exclude any issue from consideration and to take any step or give any direction for the purpose of managing the case and furthering the overriding objective (rule 25(j) and (m)). It was held in KD and LD v Havering London Borough Council [2010] 1 FLR 1393 that the court may determine a case summarily of its own motion, but their power “must be exercised appropriately and with a modicum of restraint”.

However, at paragraph 67, he observed that he did not consider that “a full fact-hearing hearing is or was required in order to obtain the necessary context in which to consider the declarations sought by the Official Solicitor. Given the clear pattern of non-compliance by the local authority, which I do not consider to be justified, I am content to make the declarations sought based upon what is already known. In particular, I am able to rely upon the recitals made in my previous orders, which document the local authority’s repeated failure to comply with the court’s directions.”

At paragraph 68, Keehan J also:

acknowledge[d] the local authority’s submission that these proceedings should now be ended, given that there are no further welfare issues to be determined and that ND can, if he so wishes, pursue a claim against the local authority under section 7 of the Human Rights Act 1998.

However, as he identified, “that submission does not recognise the reality that the very purpose of section 15(1)(c) is to give this court the power to make such declarations as those sought by the Official Solicitor, and that power is not fettered by the option of a party seeking such findings via an alternative route.”

Costs

As to costs, it was perhaps not surprising that Keehan J found that there were cogent reasons which justified him in departing departing from the usual rule on costs, namely an order for no costs should be made. He had regard, in particular, to the conduct of this local authority and its failures to comply with court orders. He therefore ordered costs against the local authority in favour of the Official Solicitor and the third respondent, ND’s father.

Comment

This decision is a very helpful reminder that the fact that the court cannot require public authorities to put options on the table does not mean that it cannot require them to follow court orders.

What is, however, striking is that Keehan J made declarations which reflected (in essence) public law failures by the local authority to discharge their obligations towards ND, but justified making those declarations by (in essence) their failures to comply with court orders. It would – one anticipates – been a rather different picture had the local authority conscientiously sought to comply with court orders but produced plans with which ND (or anyone else) objected as regards the actual provision of services proposed. At that point, matters would very clearly have been back in the MN v ACCG territory of requiring those matters to be raised in the judicial review arena. However, because the local authority both substantively failed to discharge its obligations towards ND and procedurally failed to discharge its obligations towards the court, the door was open for the Official Solicitor to ask for, and Keehan J then to grant, hard-hitting declarations of unlawfulness and then, in turn, to award costs against the local authority.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

[1] In Re W (A Child) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1177, the then President, Sir James Munby, referred to, at paragraph 51: “the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders…”

[2] In which Munby J had observed at paragraph 56 that “[t]he fact that a child is uncooperative and unwilling to engage, or even refuses to engage, is no reason for the local authority not to carry out its obligations under the Act and the Regulations. After all, a disturbed child’s unwillingness to engage with those who are trying to help is often merely a part of the overall problems which justified the local authority’s statutory intervention in the first place. The local authority must do its best.”

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