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England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> M, Re  EWCOP 69 (07 July 2015)
Cite as:  EWCOP 69
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London, WC2A 2LL.
B e f o r e :
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
|A LOCAL AUTHORITY||Applicant|
|(by his litigation friend, the Official Solicitor)|
local authority, instructed by the local authority solicitor.
MR ANDREW BAGCHI Q.C. appeared as counsel on behalf of the
Official Solicitor, instructed by Miss Nicola Mackintosh
The Second and Third Respondents appeared in person
Crown Copyright ©
7th July, 2015
MR JUSTICE BAKER:
"(1) M has autistic spectrum disorder and a learning disability.
(2) There is no evidence that his autism was caused by the MMR
(3) M's parents' account of an adverse reaction to that vaccination is fabricated.
(4) His mother, E, has also given many other false accounts about M's health.
(5) As a result, she has subjected M to numerous unnecessary tests and
(6) M suffered from a dental abscess for which E failed to obtain proper
treatment and caused him 14 months of unnecessary pain and suffering in 2012/2013.
(7) E has also insisted that M be subjected to a wholly unnecessary diet and
regime of supplement.
(8) Through her abuse of the responsibility entrusted to her as M's deputy, E has
controlled all aspects of his life and restricted access to him by a number of professionals.
(9) E has further proved herself incapable of working with the local authority
social workers and many members of the care staff at the various residential homes where M has lived.
(10) E's behaviour amounts to factitious disorder imposed on others.
(11) In addition, E has a combination of personality disorders: a narcissistic
personality disorder, a histrionic personality disorder and an emotionally unstable personality disorder.
(12) Nonetheless, both E and M's father, A, are deeply devoted to M and would
have much to contribute to him if they can work in collaboration with the local authority's social workers and other professionals in M's best interests. Such an outcome would manifestly be to M's advantage but will not be achieved unless A, and in particular E, can demonstrate a fundamental change of attitude."
(1) a recital that it is was in M's best interests that his finances be administered
by the granting of an appointeeship to an appropriate officer of the local
(2) a recital that the court would consider at a further hearing final orders in
relation to M's residence and contact with family members and whether it was in
his best interests to appoint a deputy for health and personal welfare;
(3) declarations pursuant to s.15 of the Mental Capacity Act 2012 that M lacks
capacity to litigate in relation to his residence, in relation to care arrangements,
in relation to contact and to give consent to medical treatment;
(4) a further declaration that it was not in M's best interests to live with his
family but, rather, that it was in his best interests to live in residential
accommodation or supported living arranged by the local authority, the precise
location to be the subject of a further declaration in due course;
(5) a declaration that, in the interim, it was in M's best interests to continue to
live at the address where he had been living for the previous six months;
(6) an order that it was in his best interests to have contact with his mother,
father and sister, S, on two occasions per week in the community, supervised by
the local authority;
(7) pursuant to s.4(a) of the Act, in so far as the measures made above amounted
to a deprivation of liberty, the same were authorised as being in his best
(8) an order that E's application to be appointed as M's deputy for personal,
health and welfare and for property and affairs be dismissed and her earlier
appointments in that capacity discharged;
(9) pursuant to s.16 of the Act, subject to the agreement of his GP, an order that
it was lawful and in M's best interests to be administered inoculation against
(10) a direction for a further hearing on 10th September, with permission to the
local authority and M through his litigation friend, the Official Solicitor, to
instruct the previously appointed independent social worker, Mr McKinstrie, to
prepare a further report as to residence and contact;
(11) an order that, for the avoidance of doubt, previous orders restraining E from
removing M from his accommodation and E and A from disclosing or
publishing information relating to the proceedings were to remain in force.
(1) I concluded that a deputy should be appointed for health and welfare and finances and that, accordingly, an appointee for finances should not be appointed, but adjourned the decision as to the identity of the said deputy.
(2) I reserved judgment on E's application to lift the restrictions concerning the reporting of the case and disclosure of documents.
(3) I further reserved judgment on the management of future applications and the scheme for the authorization of any deprivation of liberty.
(4) I adjourned the proceedings to a further hearing in June 2015 to consider and determine the identity of the deputy and resolve any further matters which anybody wished to raise in these proceedings before making a final order.
(5) I identified some issues to be transferred to the senior judge of the Court of Protection for determination of certain financial disputes between the local authority and E and A arising out of the earlier disputes concerning E's deputyship.(6) I dismissed an application for costs made by E and A.
(7) I ordered that E and A should pay the local authority one third of the costs of instructing Dr Beck and Mr McKinstrie, with provision as to payment of those costs.
(8) With respect to a further application by E and A for wasted cost orders against the legal representatives of the local authority and M, those applications were dismissed as being 'totally without merit'."
(2) deprivation of liberty;(3) disclosure and publication of information relating to the proceedings; (4) other miscellaneous issues.
"It is ordered that:
(1) Appointment of deputy:
(a) [insert name] [see below] is appointed as deputy 'the deputy' to make personal, welfare and health decisions on behalf of M that he is unable to make himself, subject to the conditions and restrictions set out in the Mental Capacity Act 2005 and in this order;
(b) the appointment will last until further order;
(c) the deputy must apply the principles set out in s.1 of the Act and have regard to the guidance in the code of practice to the Mental Capacity Act 2005, subject to the provisions below.
(2) Authority of deputy:
(a) the court authorises the deputy to make the following decisions on behalf of M that he is unable to make for himself when the decision needs to be made in relation to:(i) contact with members of his family, save that any decisions to suspend contact with any member of his close family, namely, E, A or S, for a period in excess of one month, or for a total period of one month in any six months, shall be referred to the Court of Protection by the deputy for consideration at the earliest opportunity;
(ii) decisions on day to day care, including diet and dress;
(iii) consenting to medical or dental examination and treatment on his behalf;
(iv) making arrangements for the provision of care and services;
(v) whether he should take part in particular leisure or social activities;
(vi) complaints about his care or treatment; and
(vii) to be appointed as litigation friend in any litigation concerning M and, in particular, deciding to make a claim in or to claim in any civil litigation in relation to M.
(b) For the purpose of giving effect to any of the decisions, the deputy may execute or sign any necessary deeds or documents.
(c) The deputy does not have the authority to make a decision on behalf of M in relation to a matter if the deputy knows or has reasonable grounds for believing that M has capacity in relation to the matter.
(d) The deputy does have the authority to make the following decisions or to do the following things in relation to M:(i) to prohibit any person from having contact with him, but the deputy may suspend contact, as referred to above;
(ii) to direct any person responsible for his health care to allow a different person to take over that responsibility;
(iii) to refuse consent to the carrying out or continuation of the life sustaining treatment in relation to him;
(iv) to do an act that is intended to restrain him otherwise than in accordance with the position specified in the Mental Capacity Act 2005, save as authorised by the court.
(3) Reports and consultation.
(a) The deputy is required to keep a record of any decisions made or acts done pursuant to this order and the reason for making or doing them and send them to the local authority and A and E at least once a month.
(b) Pursuant to s.16(5) of the Mental Capacity Act 2005, the deputy is authorised not to notify A and E of any health or welfare decision in advance or consult with them in advance of the implementation of a decision in relation to M unless the decision is:(i) a decision as to whether it is M's best interest to have serious medical treatment, as defined in practice direction 9(e) of the Court of Protection Rules 2007;
(ii) a decision to change M's place of residence; or
(iii) a decision to suspend contact between M and E or A or S.
(c) The deputy must submit a report to the Public Guardian as and when required to do so and, in any event, at least once a year."
Deprivation of liberty
"Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure proscribed by law ...(e) the lawful detention of persons of unsound mind ..."
Article 5.4 provides:
"Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful."
Following the decision of the European Court in HL v. United Kingdom  40 EHRR 32, the 2005 Act was amended to the new s.4A headed, "Restriction on deprivation of liberty" which provides (so far as relevant to this case):
"(1) This Act does not authorise any person, ('D') to deprive any other person ('P') of his liberty.
(2) But that is subject to:
(a) the following provisions of this section; and
(b) s.4B [concerning life-sustaining treatment not relevant to
(3) D may deprive P of his liberty if by doing so D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under s.16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home regulations, deprivation of liberty)."
the arrangement and authorization of the deprivation of liberty of persons
lacking capacity by local authorities under the so-called 'deprivation of
liberty safeguards' (DOLS), subject to the overriding supervision of the
Court of Protection. In this case no authorization for the deprivation of M's
liberty was ever sought or granted and it is, therefore, unnecessary to set out
the detailed provisions of the DOLS in this judgment. In the absence of
such an authorization, M may only be deprived of his liberty by order of the
Road is approved by the court pursuant to s.16(2)(a). Under s.1(6) of the
Act, before making a decision for or on behalf of a person who lacks
capacity, regard must be had to whether the purpose for which it is needed
can be effectively achieved in a way that is less restrictive of his rights and freedoms. In this case I have already decided that it is in M's best interests to reside at T Road under the care plan approved by the court. But where the circumstances amount to a deprivation of liberty, the court requires that further safeguards be put in place and, in particular, the court must consider arranging regular reviews of these arrangements - see JE and DE v. Surrey County Council  EWHC 3459 Fam, and GJ v. A Foundation Trust  EWHC 2972 Fam
continuous supervision and control and was not free to leave" – paragraph
49. If M's circumstances satisfy this test, then this court must make an
appropriate declaration that the arrangements under which he is living at T
amount to a deprivation of liberty, that the arrangements are
authorised by the court as being reasonable and proportionate and in M's
best interests and that such deprivation is therefore lawful. The court must
then direct a further review after an appropriate time, normally one year.
reality of M's position is that he is not free to leave T Road. He is under the
complete supervision and control of the care staff. Miss Bretherton stresses
that the purpose of recognising that there is a deprivation of liberty in these
circumstances is to ensure that proper safeguards are in place to prevent a
breach of Article 5. The purpose of the order authorising a deprivation of
liberty is not to restrict M but, rather, to protect him and ensure that the
court can monitor the actions of the public body which is depriving him of
his liberty. The local authority, accordingly, ask the court to authorise the
deprivation of liberty in accordance with s.4A and direct a further review in
approximately one year's time on paper. The local authority's position on
this issue is supported by the Official Solicitor.
for his existence to be normalised as much as possible under the
circumstances inflicted upon him." They submit that the application to
authorise his deprivation of liberty is "unreasonable, disproportionate and
contrary to his best interests, civil liberties and human rights." They
"There is no justification for this. He has never ever had this imposed on him ever before and he has done nothing to deserve it now. We ask the court not to impose this for the convenience of others ... It is in M's best interests to have the same rights as any other resident living in T Road or in any residential placement, as M has a sufficient understanding and knowledge to realise that he is being treated different, but will not realise why and, therefore, he would be more likely to internalise this to affect his health and well-being."
They say that M's needs should be met in the usual way and no different
from those of any other disabled person requiring support, in accordance
with legal and civil rights. They add:
"M is already imprisoned by his disability. It is not for those who purport to represent his best interests to imprison him further in order to exercise their control and to exercise their power over him."
being looked after in circumstances that amount to a deprivation of liberty
and their wish that this should now cease, but I think that E, and perhaps
also A, misunderstand the purpose of the court being asked to authorise a
deprivation of liberty. It is not to imprison or stigmatise M but rather to
amount to a deprivation of liberty, but he cannot live at home because, in
the light of my findings, there is a risk that he will suffer harm. The court,
therefore, has had to identify the best option for his residence and care and
has decided that it is in his best interests to reside at T Road. Having made
that decision, in the course of which I have had regard to s.1(6), I must now
decide whether, objectively, his circumstances amount to a deprivation of
liberty. In my view, the acid test identified by the Supreme Court is
manifestly satisfied. He is under continuous supervision and control of the
staff at T Road and is not free to leave, save for certain specific activities on
which he will be accompanied and supervised. As a matter of objective
fact, he is therefore being deprived of his liberty. It is, thus, my duty to
make a declaration to that effect and that this is in his best interests and, in
order to ensure that his Article 5 rights are protected, I shall direct a further
review by the court in 12 months. As to that review, I shall make the
following directions as discussed at court and included in a draft order
prepared by Mr Bagchi:
"The authorization of M's deprivation of liberty contained in this order shall be reviewed by this court in June 2016, and:
(a) shall be listed for an attended oral hearing upon the application of any party to the Clerk to the Rules, unless the court considers it appropriate to dispense with an oral hearing, in which case the application shall be considered on the papers, upon submission of the documents listed below to the clerk to Mr Justice Baker by email;
(b) at least 28 days prior to the court review, the applicant will arrange a multi-disciplinary meeting on a date to be fixed, with a view to all parties, (including E and A), being able to attend so far as is feasible to consider the care arrangements for M. The Official Solicitor will be invited to that meeting. The purpose of that meeting will be to consider whether an agreed case summary can be prepared for the court and whether an oral hearing is necessary;
(c) 21 days prior to the court review the applicant will file and serve a short updating statement on M's care arrangements and any new case summary, attaching an updated care plan for M;
(d) the other parties shall file and serve a position statement no later than seven days prior to the court review and the Official Solicitor shall file and serve a position statement if so advised three days before the review."
this draft. They objected to the matter being reserved to me. I consider this
below. They demand that the next hearing be an oral hearing and object to
the hearing "being nothing more than a paper exercise". I disagree. It is
quite normal for such reviews to be carried out without an oral hearing and
it is properly a matter for the court to determine after receiving the
paperwork whether an oral hearing is required. They asked that they be
expressly included by me as being entitled to attend the multi-disciplinary
meeting to be convened 28 days prior to the court review. I had read the
phrase "all parties" as manifestly including them, but I am happy to make
this clear and have, therefore, added their names in brackets. They asked
that the deputy be included expressly but, as I understand the scheme of the
proceedings, the deputy will now take over from the Official Solicitor as
litigation friend, including for the purpose of future deprivation of liberty
reviews. In those circumstances, the word "parties" includes the deputy.
"E and A shall not, whether by themselves or encouraging any other person to do so, disclose or publish any information relating to these proceedings to any person, including any legal organisation, save for their legal representatives."
The original order to that effect was made at the hearing in March 2014
when concerns were raised by the local authority that E and A would
disclose information relating to the proceedings to the media. At various
points since the hearing in August 2014, I had indicated that I would wish to
relax this restriction so that it goes no further than necessary in M's best
interests and, in particular, does not restrain E and A from legitimately
raising and discussing issues arising in these proceedings in a way that does
not infringe M's best interests.
and publicity in relation to the Court of Protection. He reminds me that
rules 90, 91 and 93 of the Court of Protection Rules 2007 address directly
the approach to be adopted when a person seeks to publish information
relating to hearings in the Court of Protection. He summarises the rules as
"(1) As a general rule, that proceedings are held in private - s.12 of the Administration of Justice Act 1960.
(2) The court may authorise the publication of information so as to authorise what would otherwise be a contempt of court, but in doing so may also impose wide-ranging restrictions on the publication of the identity of any party or other relevant person - rule 91(3).
(3) An order authorising publication can only be made where it appears to the court that there is 'good reason' for making the order."
the decision of Mummery J, as he then was, in Re B  2 FLR 142, and
in A v. Ward  EWHC 16, the decision of Hedley J in the Court of
Appeal in Independence News and Media and others v. A  EWHC
2858 and  EWCA Civ 343, of Peter Jackson J in London Borough of
Hillingdon v. Neary  EWHC 43 COP, and of this court in A Local
Authority v. A and others  EWHC 1764, and in W v. M 
to a number of authorities, in particular recent decisions of the President in
Re J (Reporting Restrictions: InternetiVideo)  EWHC 2694 Fam, Re
An Application by Yorkshire County Council  EWHC 136 Fam, and
the Practice Guidance published by the President on Transparency in the
Court of Protection, dated 16th January 2014. E and A then put forward a
number of arguments in this case in the following terms. They submit that:
"The interests of justice is not served by having secret courts to indulge in and perpetuate the dark ages of conflicting with the heart of the common law system of justice in respecting issues of human rights and in keeping with the ECA ... In a civilised and democratic society, the legal system must be seen to be open to scrutiny. In the spirit and opinion of the fundamental principles of justice and liberty is openness and transparency, as endorsed by the reforms of the Family Division and the Court of Protection in its drive against secrecy. The core legal and social issues highlighted in this case are of enormous public interest importance, as the judgment recognises. Therefore, they are worthy of debate in a public forum. Our experience would benefit so many, as so much is topical, with recent legislation, reforms and reviews, which is in the wider interest. The particular interests we would wish to focus on are those of (i) costs of DIY justice - litigants in person; (ii) deputyship of those vulnerable and the importance of working collaboratively with the local authority; (iii) the Mental Capacity Act to be embedded into society and the implications of not doing so for all concerned.
E and A entirely respect the anonymity that sufficiently protects those involved and they have no intention to either breach that, engage in blanket tittle-tattle or blame culture."
responded, as I have indicated already, in the form of a track changed
document. In this they reiterated their wish to pursue certain policy issues,
and I pointed out during oral argument that I had said they ought to be
encouraged and not prevented from speaking out. They stated that they had
no wish to undermine M's anonymity but did have issues regarding the
prohibition of the identity of the placement and objected in particular to any
restrictions on family and friends knowing of M's address, asserting that this
would be an unjustified interference with his human rights. Finally, they
referred, as they had done during the hearing and in a specific COP9
application, to their opposition to the continued anonymisation in the
published documents of both the local authority and the individual social
ground which is well trodden. The principles are clear. The court must
balance M's Article 8 rights against other rights, in particular the Article 10
rights of E and A, having regard to the particular importance attached to
freedom of expression by virtue of s.12(4) of the Human Rights Act 1998.
On the other hand, as Lord Judge LCJ observed in Independence News
Media v. A supra, at paragraph 10:
"The affairs of those who are incapacitated for the purposes of this Act are examined before a judge in court. The affairs of those who are not incapacitated are, of course, handled privately, usually at home, sometimes with, but usually without, confidential professional advice. None of these decisions is the business of anyone other than the individual or individuals who are making them. Thus, this, as we emphasize, presents an entirely separate, and we suggest self-evident, aspect of personal autonomy. The responsibility of the Court of Protection arises just because of the reduced capacity of the individual requires interference with his or her personal autonomy."
On the other hand, as the President has observed in Re J supra, at paragraphs 36 to 40, the court recognises:
"The importance in a free society of parents who feel aggrieved at their experience of the family justice system [to which I add the Court of Protection] being able to express their views publicly about what they contend to be the failings on the part of individual judges or failings in the judicial system, and the same goes, of course, for the fair criticism of local authorities and others ... It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish ... Comment and criticism may be ill-informed and based on ... misunderstanding or misrepresentation of facts. If such criticism exceeds what is lawful, there are other remedies available. The fear of such criticism, however justified that fear may be and however unjustified the criticism is ... is not of itself a justification ... The publicist - I speak generally, not in the present case - may be an unprincipled charlatan seeking to manipulate public opinion by feeding a tendentious account of the proceedings, but freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving."
necessary to protect M's interests. It is certainly none of my business what
E or A do with the rest of their lives and I do not discourage them from
publishing their experiences or views on the many issues that have arisen in
this case. Nor must the court interfere with M's ability to communicate with
family and friends. As for the extent of the anonymisation of the judgment,
E and A object to the names of the local authority and social worker being
identified. They rely on paragraph 20 of the Practice Guidance which
provides, inter alia, that public authorities should be named in the judgment
approving publication unless there are compelling reasons why they should
not, and that the anonymity of the judgment as published should not
normally extend beyond protecting the privacy of the adults who are the
subject of the proceedings and other members of the family, unless there are
compelling reasons to do so. In my judgment, however, there is a
compelling reason in this case for keeping the local authority and the names
of the social workers and all others associated within the County where the
events of this case have taken place anonymised in any published version of
this judgment. Having considered the matter very carefully, I have
concluded that, without such restriction, there is a significant risk that M
could be identified because of the highly unusual facts of this case.
the draft orders, I have decided that the order should be somewhat different
to that submitted by Mr Bagchi and I shall make an order in the following
(1) Subject to sub-paragraph (2) below, no person shall disclose or publish (in any form, whether in any newspaper or broadcast or via the internet) any information which leads to the identification of MJB or his placement.
(2) EMB and AB are permitted to disclose to family and friends that MJB is living in supported living and to provide family and friends with the address to permit communication between them and MJB provided that they inform any person to whom this address is given that there is a court order which prevents the publication of any information which leads to the identification of MJB or his placement.
(3) Subject to sub-paragraphs (4), (5) and (6), no person shall disclose or publish (in any form, whether in any newspaper or broadcast or via the internet) any document filed in these proceedings to any person without the prior permission of the court.
(4) The parties may disclose the papers filed in these proceedings to their legal advisers and to the MJB's deputy for health and welfare and deputy for property and affairs.
(5) The Applicant and MJB's deputy for health and welfare and deputy for property and affairs may disclose the judgments in these proceedings, care plans and contact protocols to professionals, including medical professionals and any advocate, concerned with MJB's care and welfare.
(6) The parties are at liberty to disclose the official transcripts of the judgments dated 11th August 2014 and 7th July 2015 to any person provided that they bring to that person's attention the warning notice in relation to the restrictions on publication on the face of the judgment.
(7) No person shall identify any person or place as being a person who has been anonymised, or a place which has been anonymised, in the official transcript of the judgment delivered 11th August 2014.
(8) Save as aforesaid all parties may disclose any information relating to these proceedings, provided that in doing so they inform any person to whom this information is disclosed of the terms of this order.
Other miscellaneous issues
(1) Contact protocol and M's activities. In their written submissions, E and A sought to revisit matters concerning contact and the protocol governing contact, M's care plan and activities upon which this court has already given its decision. I decline to reopen any inquiry into those matters in respect of which I have already made decisions and orders. Henceforth, any adjustments will be considered by those responsible for M's care, including his new deputy, and in making those adjustments those persons shall carry out such consultations as may be appropriate.
(2) Communications with other professionals. At the hearing I had understood that E and A agreed to an undertaking not to communicate with M's dentist or GP or other professionals involved in providing care for M, save in writing via his deputy or otherwise with the consent of the deputy. This provision duly appeared in Mr Bagchi's draft order. However, in the track-changed document, E and A objected to the phrase "save in writing". In my judgment, given the lengthy history of unwarranted and damaging interference by E in the work of the professionals involved in M's care, as described in the main judgment, such a restriction is wholly justifiable in M's best interests and I shall make an order to that effect. However, the terms of the order, reflecting Mr Bagchi's draft undertaking, give the deputy a discretion to permit communication otherwise than in writing if she considers it appropriate. I am confident that I can trust Ms Z to exercise that discretion sensibly.
(3) Disclosure of judgment and care plans to professionals. The local authority seeks permission to disclose the judgment and care plans and contact protocols to medical professionals and any advocate concerned with M's care and welfare. E and A ask that such an order be more specific, asserting that the local authority proposal is intended to be a further means by which they can be "maligned". I completely reject this argument. The order sought by the local authority is entirely sensible and practicable in M's best interests and I shall so order.
(4) Penal notice. The order contains an injunction on disclosure and must, therefore, contain a penal notice. As drafted by Mr Bagchi, that notice is directed only at E and A, but the order that I am making is not confined to E and A but extends to everyone served with the order. The penal notice attaching to the disclosure order should, therefore, be amended to read: "If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized." However, the draft order submitted by Mr Bagchi contained an undertaking, and to that, as set out above, E and A raised an objection. And, as indicated above, I have now substituted it with an order. That is directed at E and A and should, therefore, be accompanied by a penal notice directed to them.
(5) Finding re suitability to act as litigation friend. Mr Bagchi's draft included a recital to the effect that the court had found that neither E nor A were suitable persons to act as litigation friends for M. I did not in fact make such an express finding in the main judgment in August 2014, and I do not recall making any such finding at any other point. I will if necessary consider this and any representations on this point. In my view, however, it is unnecessary to include such a recital since I am including within the deputy's terms of reference a provision that she should be allowed to act as litigation friend in all proceedings in respect of M from this point.
(6) Change of social worker. E and A ask me to invite the local authority to change the two social workers, JR and LG, who have been involved in this case for several years. I decline to do so. As indicated in my main judgment, I do not accept the criticisms relentlessly levelled at the social workers by E and A. They have done an excellent job in very difficult circumstances. E and A also ask me to invite the local authority to apologise for its "maligning" of them to them to the CQC. I am not in a position to say whether they have been so maligned, and I do not consider it necessary to investigate this issue.
(7) Permission to appeal against costs. By a further COP9 application dated 8th June 2015, E and A sought permission to appeal against the small costs order made, asking for that to be extended to 21 days after they had received the judgment dated 23rd April 2015. That judgment was delivered extempore at a hearing attended by all parties, including E and A. As the time for appealing that order had expired by the date of their application for such an extension, I do not consider that I have power to extend the time for appealing. If they wish to pursue this application, they must take it to the Court of Appeal.
(8) Further applications. The Official Solicitor is concerned at the risk of further unmeritorious applications by E and A which, unless restricted, would waste the time and resources of the court and other parties. Mr Bagchi reminds me that there is in the Court of Protection rules and the Mental Capacity Act no power akin to s.91(14) of the Children Act 1989. Nonetheless, he also reminds me of the court's inherent powers to restrict applications - see, in particular, Bhamjee v. Forsdick and others (No 2)  EWCA Civ 1113. He invites the court to make a direction forbidding any further application to this court in respect of M without prior permission of the court. E and A object, stating that this violates their rights as human beings. At this stage I do not consider it necessary or appropriate to go as far as the Official Solicitor proposes. This order marks the end of these proceedings. I expect all parties will do their best to avoid litigation in future and try to work collaboratively with the new deputy I have now appointed. Despite the many applications that have been issued in the course of these proceedings, I am not prepared to make an order at this stage to the effect that E and A should be restrained from making an application without the permission of the court. It does not follow, simply because they have made numerous applications in the course of these proceedings, that they will continue to do so now that these proceedings have come to an end. Nonetheless, without imposing any requirement for permission, I shall direct that any application upon issue shall in the first instance be referred to me for further directions.
(9) "Reserved to me". Finally, E and A object to any order which provides that all future applications be reserved to me. They argue that such a restriction is an infringement of their human rights and argue that any future applications should be made in the usual way that does not specify for the attention of any named judge. I have tried to explain the principle of judicial continuity to E and A in the course of the hearing but they have maintained their position. In my judgment, it would be wholly unfair on any other judge and wasteful of valuable resources to expect another judge to take on such an application. As long as I am available, all further applications shall be reserved to me.
[Note – at a further hearing, E and A attended and gave an undertaking not to communicate with M's dentist or GP or other professionals involved in providing care for M concerning the care and treatment given to M save in writing via M's deputy for health and welfare or otherwise with the consent of the deputy. The undertaking was accepted in lieu of the order mentioned in paragraph 45(2) of this judgment.]