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Family Law

The leading authority on all aspects of family law

18 MAR 2015

What are the changes to the Court of Protection Rules 2007 and why are they important?

What are the changes to the Court of Protection Rules 2007 and why are they important?
Kelly Schofield, member of the Court of Protection team at Wright Hassall LLP

The Court of Protection (Amendment) Rules 2015 amending the Court of Protection Rules 2007 were made on 4 March 2015 and laid before Parliament on 9 March 2015. These changes came about by way of recommendation made by a committee established by the Court of Protection President.

Increased participation of the person who lacks capacity

One of the main focuses of the recent changes include encouraging the person who lacks capacity (P) to become more involved in Court of Protection proceedings. There is a requirement that in each case the court will consider making directions to enable P to be more involved in the proceedings. The court could direct anything from Rule 3A below:

(a) P should be joined as a party;

(b) P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct;

(c) P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in section 4(6) of the Act and to discharge such other functions as the court may direct;

(d) P should have the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur;

(e) P’s interests and position can properly be secured without any direction under     subparagraph (a) – (d) being made or by the making of an alternative direction meeting the overriding objective.
The purpose of this change is to require the court to consider in each case which is the best way to ensure that the relevant person’s participation in the proceedings is secured. Under (b) above, the judge can direct for an accredited legal representative to be appointed to represent P by voicing their wishes and feelings. This can be done regardless of whether P is a party to proceedings. If they are a party then an accredited legal representative can be appointed without a litigation friend having to be in place. This change is important because it supplements the need and use of a litigation friend instead of replacing the role which is in great demand.

Notifying P

Under Part 7 of the Act it provides a full explanation of the duty to notify P of any new matters arising in, or in relation to proceedings or any changes to the same. Rule 40 describes the general requirements to notify P and Rule 41A includes more specific circumstances such as where the court has made a direction under Rule 3A regarding how P is to participate in proceedings such as the appointment of a litigation friend or representative. This is an important change again because it brings the focus back to P and keeping them fully updated. 

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Appeals

The amendments include changing the way appeals are dealt with. A wider range of judges will deal with appeals by way of allocation from a court decision to one of three tiers of judges within the Court of Protection. This enables appeals to be dealt with within the Court of Protection instead of the Court of Appeal which is a great improvement.

This change has come about because of the anticipated increase in Deprivation of Liberty Safeguarding Orders following the recent cases of  P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19, [2014] COPLR 313

Application permission procedure

The changes have clarified the procedures for applying for permission to proceed. They have also simplified the procedure for removing the requirement for permission in some cases. Under Rule 51 permission of the court is not required: 

(a) Where an application is made by –

(i) the Official Solicitor; or

(ii) the Public Guardian;

(b) where the application concerns –

(i) P’s property and affairs;

(ii) A lasting power of attorney which is, or purports to be, created under the Act; or

(iii) An instrument which is, or purports to be, an enduring power of attorney;

(c) Where an application is made under section 21A of the Act;

(d) Where an application is made for an order under section 16(2)(a) of the Act, which is to be relied on to authorise the deprivation of P’s liberty pursuant to section 4A(3) of the Act;

(e) Where an application is made in accordance with Part 10;

(f) Where a person files an acknowledgement of service or notification in accordance with this Part or Part 9, for any order proposed that is different from that sought by the applicant or;

(g) In any other case specified for this purpose in a practice direction.
Two importance changes here are that applications relating to property and affairs are now much clearer - permission is not needed. Secondly that permission is not needed where judicial authorisation for the deprivation of P’s liberty is sought.

Where permission is required the applicant must apply for permission when making an application. The previous requirement that a separate permission form needs to be filed (from July 2015) will be abolished.

Sharing Information

The amendment introduces greater flexibility relating to new rules on sharing information. Where there are procedural gaps in the Court of Protection Rules (CPR), there is now provision to allow the court to refer to not only the CPR but also the Family Procedure Rules 2010 (FPR), with a view to give directions for filling such a gap in the proceedings before it.

This is important because it allows the judge to choose whether the appropriate solution to the problem they are faced with lies within the CPR or the FPR.

The introduction of free standing rules

Part 10 of the Act deals with Applications within proceedings. There are now freestanding rules for Security for Costs and Service out of Jurisdiction. The provisions model on those in the CPR with alterations to reflect the nature of Court of Protection proceedings.

The recent changes seem to be focused on participation in the proceedings and transparency within the Rules. The area of Court of Protection has come a long way since 2007 and these recent changes reflect the issues experienced and the need for amendment in the old Act. The amendments relating to appeals come into effect on 6 April 2015, while the remaining amendments come into effect on 1 July 2015.
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