The president of the Family Division has bemoaned what he called ‘systemic failures’ in Court of Protection procedures causing cases to take years to reach full hearing.
Sir James Munby said the wait for a hearing in MN (Adult) had been ‘depressingly long’ and he urged a tightening of procedures as has taken place in the family court.
The present proceedings had started in August 2011 in relation to a local authority’s responsibility for a disabled young man. His parents argued that his mother should help in his care when she visited his residential placement, and that MN should be allowed to visit his parents’ home for care.
It took until November 2013 for a hearing in the Court of Protection and until December 2014 for an appeal of that decision by the parents.
Munby used the comparison with care proceedings in the family court to show the ‘striking contrast’ in how long cases take to resolve.
The judge said new guidelines in the Family Procedure Rules 2010, involving robust judicial case management and zero tolerance of non-compliance with court orders, had ‘radically improved’ the problems of delay.
‘In the family court there has been a cultural revolution, from which the Court of Protection needs to learn,’ said Munby.
‘The truth is that this case, like too many other ‘heavy’ personal welfare cases in the Court of Protection, demonstrates systemic failures which have contributed to a culture in which unacceptable delay is far too readily tolerated.’
Munby admitted to being ‘surprised’ that the bundle in this case came to more than 2,000 pages of evidence.
‘That, I have to say, is an indictment of the culture which has been allowed to develop in the Court of Protection. It must stop.’
Munby said the case also highlighted the need to identify and address jurisdictional issues and legal arguments well before a personal welfare case. In this case, despite these types of arguments ‘bubbling under the surface for some time’, the court heard the local authority’s stance on a jurisdictional issue was only clarified in an email sent by counsel the night before the hearing was due to start.
Munby said a similar problem had been identified by Charles J in A Local Authority v PB and P in 2011, and noted it was ‘depressing’ to see how little of what the judge said then had ‘percolated through’ to those involved in the present case.