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(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.
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