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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MN (Adult)  EWCA Civ 411 (07 May 2015)
Cite as:  Med LR 287,  Fam 87,  EWCA Civ 411,  WLR(D) 208,  3 WLR 1585, (2015) 18 CCL Rep 521,  COPLR 505
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ON APPEAL FROM THE COURT OF PROTECTION
Mrs Justice Eleanor King
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TREACY
LADY JUSTICE GLOSTER
|In the matter of MN (Adult)|
Ms Aswini Weereratne (instructed by Scott-Moncrieff & Associates) for the second appellant Mrs N
Mr Hugh Southey QC and Ms Fiona Paterson (instructed by Weightmans LLP) for the first respondent ACCG
Mr Alex Ruck Keene (instructed by Steel & Shamash) for the third respondent MN (by the Official Solicitor)
The second respondent ACC was neither present nor represented
Hearing dates : 16, 18 December 2014
Crown Copyright ©
Sir James Munby, President of the Court of Protection :
" The ACCG's case is that in a welfare case such as the present, the court is limited to choosing between the available options. It does not, they submit, have the power to order the applicant to produce other options, although it may make inquiries of the first applicant of other potential options. There is, say ACCG, only one residential package which it is prepared to fund. It is clear, they submit that the most recent offer of contact (unrestricted at RCH plus once a month in the community), affords the parents ample opportunity to see MN. The provision offered they submit, discharges their statutory duties towards MN. The ACCG fund one visit each week and the visit into the community.
 It follows that the ACCG's case is that they will not fund contact at the parents' home and contact there is not therefore an available option in this case."
"danger of a blurring of the distinction as between the Court of Protection's statutory duties in a private law context, (namely to consider the best interests of an incapacitated adult), with public law challenges in relation to the willingness, unwillingness, reasonableness or rationality of the services a public authority is willing or able to provide."
"In all the circumstances, I accept the submission of ACCG that contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s 4 MCA 2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests."
"Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code."
He continued (page 797):
"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority."
"The ground of decision in A v Liverpool City Council  AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case."
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.
"A child may have needs which a parent cannot meet. It may be in the interests of a child to reside for substantial periods with his father if the father has suitable accommodation. If he has not, the court has no power under the 1989 Act, whether in exercise of its public or private jurisdiction, to conjure such accommodation into existence."
"This Act [the Mental Capacity Act 2005] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity."
"Of course, there are circumstances in which a doctor's common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself."
She returned to the point (para 45):
"The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want."
"It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In re C (A Minor) (Wardship: Jurisdiction)  2 FLR 168 (independent school refusing to admit ward of court). The position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private law powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to the principles of substantive public law" (emphasis in original).
"91 … Suppose that the question is whether or not a child should have potentially life-saving heart surgery. And let us suppose that on this central issue there is a dispute between the child or her parents on the one hand and the NHS hospital providing the treatment on the other. By what test is the dispute to be resolved? Is the determining criterion to be the judge's perception of what is in the child's best interests? Or something else? The answer, in my judgment, is that it all depends on the precise nature of the dispute between the parties and on what precisely it is that the judge is being asked to do.
92 If the NHS hospital is willing to provide the treatment, and the only obstacle to the operation going ahead is the refusal of the child or her parents to give the necessary consent, then the matter will be decided by the judge applying the best interests test. Notwithstanding that the NHS hospital is a public authority operating within the statutory framework of the National Health Service Act 1977 the dispute contains no public law element. It is one wholly within the realm of private law. It should accordingly be resolved in the Family Division in what can conveniently be called private law proceedings (whether brought under the inherent parens patriae jurisdiction or under Part II of the Children Act 1989 being neither here nor there) and by reference to the usual Family Division best interests test.
93 If, on the other hand, the NHS hospital is not willing to provide the treatment, because of a lack of resources or because it considers that other patients or other forms of treatment ought to have priority, then the matter cannot be decided by a mere application of the best interests test. The dispute is not a private law dispute. It is one within the realms of public law and, it may very well be, human rights law. It must be resolved, whether in the Family Division or in the Administrative Court, and whether in judicial review proceedings or in some other form of proceedings, by reference to public law criteria" (emphasis in original).
"95 Now what is the essential difference between the two types of case? … the crucial distinction goes to the identity of the decision-maker whose decision is being scrutinised by the judge and, crucially, to what precisely it is that the judge is being asked to do.
96 If the decision which the judge is being asked to review, consider, endorse or overturn, as the case may be, is that of the patient (or her parent) refusing to accept treatment which the health authority or the NHS hospital is willing to provide, then the dispute is a private law dispute which falls properly within the inherent parens patriae jurisdiction and is to be resolved by reference to the best interests test. If, on the other hand, the decision which the judge is being asked to review, consider, endorse or overturn, as the case may be, is that of the public authority exercising its statutory discretion, then the dispute properly falls to be considered by reference to public law principles.
97 Putting the point very shortly, if the task facing the judge is to come to a decision for and on behalf of a child or incompetent adult then the welfare of that person must be the paramount consideration. If the task for the judge is to review the decision of a public authority taken in the exercise of some statutory power then the governing principles are those of public law."
"The court's decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be."
"When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: the Children Act 1989, section 1(1). This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist."
"Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so … The courts cannot even do this in care proceedings … A fortiori they cannot do this in private law proceedings between the parents. No doubt all family courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration. But we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. It is different, of course, if we have good reason to believe that the necessary resources will be forthcoming in the foreseeable future. The court can always ask the local authority for information about this."
" As explained in my earlier judgment … the court has to choose between available alternatives. I therefore directed the local authority to make a decision whether it was prepared to provide a package of support for D (and his mother) if he moved to live with his mother and, if so, what that would be. The purpose of that direction was to make clear what the available options were absent either a change of mind by the local authority or a successful judicial review or human rights challenge.
 The local authority confirmed that it was not prepared to offer a supported placement at home but would provide one to one support during the day. On advice, the mother confirmed that she was not going to attempt to judicially review that decision, and she has not mounted a human rights challenge to it. In my view, the advice leading to that stance was plainly right because on the common ground and undisputable evidence no public law or human rights challenge is arguable."
That, if I may say so, was the correct approach.
"In my opinion the Court of Appeal was wrong to suggest that a housing authority should intervene in family proceedings to argue against the court making a shared residence order. It will obviously be helpful to a court, in dealing with the question of where the children should reside, to know what accommodation, if any, the housing authority is likely to provide. It should not make a shared residence order unless it appears reasonably likely that both parties will have accommodation in which the children can reside. But the provision of such accommodation is outside the control of the court. It has no power to decide whether the reasons why the housing authority declines to provide such accommodation are good or bad. That is a matter for the housing authority and, if necessary, the county court on appeal. Likewise, it is relevant for the housing authority to know that the court considers that the children should reside with both parents. But the housing authority is not concerned to argue that the court should not make an order to this effect. The order, if made, will only be part of the material which the housing authority takes into account in coming to its decision. The two procedures for deciding different questions must not be allowed to become entangled with each other."
"the family court should not use a residence order as a means of putting pressure upon a local housing authority to allocate their resources in a particular way."
"in cases in which there is, apart from immigration questions, no genuine dispute concerning the child, the [family] court will not allow itself to be used as a means of influencing the decision of the Secretary of State."
"… there is no reason whatever why the court should refrain from exercising its jurisdiction when it is desirable for it to do so in order to assist a local education authority to perform its statutory duties. It is only if the effect of exercising its powers would be to create a conflict between the role of the court and the role of the education authority, or the risk of such conflict, that the court should decline to intervene."
"be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking."
Rigorous probing, searching questions and persuasion are permissible; pressure is not.
"It is part of the case management process that a judge may require a local authority to give evidence about what services would be provided to support the strategy set out in its care plan … That may include evidence about more than one different possible resolution so the court might know the benefits and detriments of each option and what the local authority would or would not do. That may also include requiring the local authority to set out a care plan to meet a particular formulation or assessment of risk, even if the local authority does not agree with that risk."
"if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children's best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent."
Balcombe LJ continued:
"It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him … then that is the unfortunate position he has to face."
"The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court)  2 FLR 456. For good reason, there are often, as in this case, polarised views about the optimum solution for the child: in the end, however, assuming that they feel that the judicial processing of them has worked adequately, the parties will be likely to accept the court's determination and, in particular, the local authority will be likely to amend their proposals for the child so as to accord with it … In the normal case let there be – in the natural forum of the family court – argument, decision and, sometimes no doubt with hesitation, acceptance: in other words, between all of us a partnership, for the sake of the child."
"If the local authority seeks to impose on MM a regime which in fact involves a breach of her Art 8 rights – and that … I agree, is the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Art 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM's life is … disproportionate. And in my judgment it involves a breach of her rights under Art 8."
"In the first instance it is for the local authority to prepare a care plan spelling out in appropriate detail and precision what it proposes to do in order to modify the current arrangements in such a way as to avoid a breach of Art 8 of the European Convention; specifically, if it wishes to pursue its plan for MM to remain at her current placement, what it proposes to do in order to facilitate her sexual relationship with KM. The care plan can then be considered by the court. The court cannot be compelled to accept the local authority's plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8."
I directed (para 167) that the local authority was to file a care plan and evidence in support setting out its final proposals and directed that the matter was to be restored for further consideration of the care plan.
"The question for a housing authority under Part VII of the 1996 Act is not the same. In deciding whether children can reasonably be expected to reside with a homeless parent, it is not making the decision on the assumption that the parent has or will have suitable accommodation available. On the contrary, it is deciding whether it should secure that such accommodation is provided. And this brings in considerations wider than whether it would be in the interests of the welfare of the children to do so. The fact that both the court and the housing authority apply criteria which look superficially similar – the court deciding what would be in the best interests of the child and the housing authority deciding whether the children can reasonably be expected to reside with the father – does not mean that the questions are the same. The contexts are quite different. The housing authority is applying the provisions of a Housing Act, not a Children Act. The question of whether the children can reasonably be expected to reside with him must be answered in the context of a scheme for housing the homeless. And it must be answered by the housing authority, in which (subject to appeal) the statute vests the decision-making power."
"arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility –
(a) hospital accommodation,
(b) other accommodation for the purpose of any service provided under this Act,
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service …" (emphasis added).
I draw attention to the words I have emphasised.
"One of the reasons they need to be alert to the points is to seek to ensure that Court of Protection proceedings are not utilised for an inappropriate purpose. Looked at only from the perspective of the individuals involved, proceedings of this type concern emotional issues and the parties should not suffer distress from proceedings that are inappropriate and/or which cannot achieve the result they want. Money also, of course, comes into play and the court should not spend time (often a number of days) considering what it thinks is in the best interests of P, only to be met by the relevant public authorities saying at the end of the day:
'We are not obliged to and are not going to act in accordance with a best interests declaration or order under s 16 Mental Capacity Act 2005 if it involves the provision of services that we have decided not to provide.'"
I agree with every word of that.
Eleanor King J's judgment: best interests
"Miss Bretherton submits that the proper course is now for the court first to decide what is in MN's best interests in relation to contact to include a consideration of contact at his parents' home, and only then, having made that decision, consider the funding options. If funding is not made available in accordance with the court's best interests decision, the parents can thereafter, if so advised, seek to challenge that decision by way of judicial review. Miss Bretherton therefore says:
Best Interests – first; Judicial Review – second."
" … This is a submission which is undoubtedly against the trend of the authorities as set out above.
 With respect to Miss Bretherton, and reminding myself that Holmes-Moorhouse was decided against a different legislative backdrop, to adopt such an approach could be said to fall into precisely the trap deprecated by Baroness Hale at para  of her judgment cited above; the Court of Protection would potentially be using a best interests decision as a means of putting pressure upon the ACCG to allocate their resources in a particular way and in doing so would be going against the first principle now enshrined in Aintree that this Act is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further.
 If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care. The care providers, (here RCH), may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with the MN's mother. MN with capacity would have the following options: (i) accept the conditions of residence at the care provider's establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care. What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers (RCH) to agree to his mother coming into their facility and 'assisting' with his intimate care" (emphasis in original)
" … There have quite properly been negotiations between the parties in relation to the options that are in fact available … This is precisely the type of negotiation which is to be encouraged in Court of Protection cases.
 There will undoubtedly be cases where courts wish to explore with providers the possibility of funding being made available for packages of care which may, for example, have been identified by independent social workers. In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a 'best interests' trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient's best interest."
I respectfully agree with every word of that and would wish to emphasise in particular the point made by the judge in the final sentence.
"avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to 'best interests', with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings."
"Such an approach undermines the first principle that the court can only make a decision that the incapacitated person can make from choices which are available or can, through discussion and negotiation, be made available."
I respectfully agree.
Eleanor King J's judgment: human rights
"a remedy and a forum for a properly raised and pleaded application setting out the basis upon which it is suggested that the ACCG had acted in such a way as to breach MN's convention rights when determining the available options to be put before the court for its consideration."
In coming to this conclusion she referred to two cases involving children, Re L (Care Proceedings: Human Rights Claims)  EWHC 665 (Fam),  2 FLR 160, and Re V (Care Proceedings: Human Rights Claims)  EWCA Civ 54,  1 FLR 944, and two more recent cases in the Court of Protection, A Local Authority v PB and P  EWHC 502 (COP),  COPLR Con Vol 166, and Re SK (By his Litigation Friend, the Official Solicitor)  EWHC 1990 (COP),  COPLR 712.
" … If a human rights issue is properly raised and pleaded and appears to the court on the pleadings to have some credibility, the court may choose exceptionally to conduct a best interests analysis which includes a consideration of hypothetical options. This would be ordered so as to determine whether the assertion that there is a breach of a party's Art 8 rights, consequent upon the provider failing to provide funding for their preferred option, has been made out.
 I should be absolutely clear that it does not follow that in every case where a provider has declined to fund a package, or limited the available options, that there should thereafter routinely be an assessment of whether such an option would be in the best interests of the patient in order to ascertain whether there has been a breach of Art 8 rights. Far from it.
 … such an approach ensures that public authorities are saved from the uncertainty and expense consequent upon a routine assessment of best interests in the context of hypothetical care packages under a vague 'catch all' of Art 8 rights, often made with the aim/consequence of putting pressure on public authorities to agree to options which they have previously, quite properly, refused to fund."
"In the present case, disregarding the fact that no application under s 7 has been made in proper form or at all, it is hard to see how an argument under s 7(1) could, on the agreed facts be sustained and a claim maintained that the Art 8 rights of either parent or MN have been breached or that any interference in their family life is disproportionate. Such a claim would have to be made out against the backdrop that ACCG's refusal to provide the funds for contact to take place at the parents' home (and thereafter to pay for adoptions to the property), arose in the context of the parent's home being a property at which MN has not lived (or perhaps even visited) for 13 years and an 'open door' plan for contact at RCH a little over 6 miles away. If I am wrong about that, proceedings under s 7(1)(a) remain available to the parents if so advised."
"It follows therefore that consideration of MN's Art 8 rights are accommodated within a s 4 best interests assessment as part of a consideration by the court of all the relevant circumstances. I am satisfied that in concluding by reference to s 4, that the proposals put forward by ACCG are in MN's best interests that his Art 8 and Art 6 rights are adequately considered and respected. It is not therefore necessary or appropriate in order to accommodate a consideration of MN's Art 8 rights, for the court to go beyond a consideration of the options put before it by the ACCG."
"I find therefore that:
(i) As restated by Baroness Hale in Aintree 'the court has no greater powers than the patient would have if he were of full capacity'.
(ii) Judicial review remains the proper vehicle through which to challenge unreasonable or irrational decisions made by 'care providers' and other public authorities.
(iii) There may be rare cases where it appears to those representing a party that a public authority, in failing to agree to provide funding for or a particular form of care package, is acting in a way which is incompatible with Convention rights. In those circumstances, notwithstanding the fact that such an option is not available and before the court, the court may exceptionally, pursuant to a formal application made under s 7(1)(b) HRA 1998, conduct an assessment of the person's best interests beyond the scope of the available options, in order to determine whether the public authority has acted in a way which is disproportionate and incompatible with a Convention right.
(iv) Protection of the Art 8 rights of the parties are otherwise protected by a consideration of them by the court as part of all the relevant circumstances when carrying out a s 4 MCA 2005 best interests assessment.
 In all the circumstances, I accept the submission of ACCG that contact at the family home is not an available option now or in the foreseeable future and that the court should not now embark upon a best interests analysis of contact at the parents' house as a hypothetical possibility. Looking at the care plan and taking into account all matters set out in s 4 MCA 2005 I am satisfied that the contact programme put forward by ACCG and approved by the Official Solicitor is in his best interests."
i) The Court of Protection has been created by Parliament for the very purpose of making such best interests decisions. Parliament has not conferred that decision-making power on ACCG or ACC. In just the same way as the Court of Protection cannot usurp their statutory functions, so they cannot usurp the Court of Protection's statutory functions. In deciding as she did, the judge permitted another public body to determine the very issues which Parliament required the Court of Protection to consider.
ii) The judge erred in placing any substantial reliance on Holmes-Moorhouse, which was an appeal from a statutory appeal under the Housing Act 1996 conferring only limited powers on the judge. So the context was entirely different. Moreover, says Ms Bretherton, the concept of "available options" is not one that can be translated into best interests decisions in the Court of Protection. In cases involving children, she says, the court makes an order about what is to happen, for example, a residence order, which is then enforced in the usual way. "In contrast, best interests decisions made by the Court of Protection are of an entirely different nature …; they are decisions on behalf of the incapacitated adult, not requirements binding those caring for such persons." It is, she says, not surprising therefore that there is no reference to "available options" in Aintree, a case in which, she says, the Supreme Court treated the question as being whether treatment was in the best interests of the patient.
iii) Without a prior best interests decision, any decision by a public authority as to what will or will not be funded is, she says, "entirely premature and academic." Indeed, she submits, the decision which needs to be taken by the local authority or health authority "cannot be reached before it is known whether MN has decided (through the Court reaching a decision on his behalf) to undertake home visits or to have his parents involved in his care." It is, she says, "entirely pointless to challenge such a decision prior to knowing what that decision is." It is only after the decision is made by the Court of Protection that it is in MN's interests to have such visits that any proper consideration can be given by the local or health authority to whether to fund and support such visits – only then, she says, can a public authority come to a full informed decision – and "only if a refusal was forthcoming at that stage that judicial review could be contemplated."
iv) Ms Bretherton submits that the point can be tested by assuming that MN had a physical disability but was not incapacitated. In that case, she says, MN would have to decide what he wanted. If having decided that he wanted home visits the public authority refused to assist, the decision would be challengeable only in the Administrative Court.
v) Ms Bretherton accepts that the Court of Protection should not engage in what she calls "entirely artificial investigations," where something is "truly not an available option" (for example, a desire to live in Buckingham Palace), nor those that "really do trespass upon the statutory decision" of another public authority. The present, she submits is not such a case.
vi) Complex factual disputes are not suitable for decision in the Administrative Court, so there was no other forum than the Court of Protection to determine the issues in the present case.
"In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a 'best interests' trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient's best interest."
"avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to 'best interests', with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings."
"The Human Rights Act 1998 has not collapsed the fundamental distinction between public law and private law. A case which, properly analysed, is a public law case is not transformed into something different merely because Convention rights are relied upon."
That is not, in my judgment, affected by anything said in Re V.
The use of declaratory orders
Two final observations
"[Mr and Mrs N] had anticipated until the morning of the trial that, whilst they make a concession in relation to MN's residence, there would still be consideration by the Court of Protection of the contact issue. Their expectation was that, over 3 days, witnesses would be called and cross-examined and submissions made prior to the court reaching a 'best interests' decision as to whether or not MN should have contact at the home of his parents as the first stage of a gradual progression to either living or spending lengthy periods of time with them there. I understand that they may feel that the ground has been cut from under their feet by what Ms Bretherton referred to as the public authorities' 'knock out blow'."
" … When the court sat it was told, for the first time, that a jurisdictional issue arose as to whether … the court should, or should not, now embark on a contested 'best interests' trial in relation to home contact and of personal care of MN by Mrs N.
 No skeleton arguments on the law had been prepared and none of the position statements filed directly addressed, or even identified this legal argument."
The judge (para 47) appropriately paid tribute to Ms Bretherton for being both able and willing to deal with the argument then and there.
"the consequence of delay has been protracted stress – described by one parent as "the human misery" – for the young men and their families, with years being lost while solutions were sought."
"Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in s 1(5) of the Mental Capacity Act 2005 that 'An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests' calls for a sensible decision, not the pursuit of perfection."
I agree, and wish to emphasise the point. He went on (para 15) to deprecate, as Parker J had done, "a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved." Again, I wholeheartedly agree.
"18 The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in 2 years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took 5 years – or 18 months – to decide the future of an 8-year-old?
19 I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court."
I endorse every word of that. I am glad to note that the recently established ad hoc Court of Protection Rules Committee is actively considering the need for reform.
"I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is "necessary" to enable the court to deal with the proceedings "justly". If a task is not "necessary" – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation."
Consideration requires to be given to the early amendment of Rule 121 to bring it into line with section 13(6).
Lord Justice Treacy :
Lady Justice Gloster :