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4.5The new Court of Protection established by the MCA 2005 is a Superior Court of Record.
1According to Halsbury’s Laws of England, prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court (such as a magistrates’ court) unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court: R v Chancellor of St Edmundsbury and Ipswich Diocese ex p White [1948] 1 KB 195 at 205–206, [1947] 2 All ER 170 at 172, CA, per Wrottesley LJ.4.6It has ‘in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court’,
2MCA 2005 s47(1). for example in relation to witnesses, contempt of court and enforcement.
4.7Its jurisdiction includes much of the personal welfare and healthcare jurisdiction previously exercised by judges of the Family Division of the High Court, in addition to the property and financial decision-making jurisdiction which it already had under the Mental Health Acts.
4.8The court is based at First Avenue House, 42–49 High Holborn, London WC1V 6NP. All applications are filed in London. However, where appropriate and convenient, the case can then be transferred to a ‘regional hub’ to be dealt with by a nominated Court of Protection judge sitting outside London.
4.9The court has a President and Vice-President and a resident Senior Judge:
President | Rt Hon Sir James Munby, President of the Family Division of the High Court and Court of Protection |
Vice-President | Hon Sir William Charles, Vice-President of the Court of Protection |
Senior Judge | Position vacant |
4.10Primarily for purposes of identifying appeal routes, judges are now identified as belonging to one of three tiers, with district judges (and equivalent) being Tier 1, circuit judges (and equivalents) being Tier 2, and High Court judges (and equivalent) being Tier 3. This is discussed further in chapter 18, but in practice this terminology is rarely used to describe the level of judge who will hear a particular case.
4.11All High Court judges are nominated to sit as Court of Protection judges and some applications must be heard by a judge of at least that seniority.
3Technically, a ‘puisne judge of the High Court’: in other words a ‘full’ judge of the High Court, rather than a deputy: MCA 2005 s46(2)(c).
CASES WHICH MUST BE HEARD BY A HIGH COURT JUDGE,3 etc |
Type of application | Must be heard by: |
•Applications in relation to the lawfulness of withholding or withdrawing artificial nutrition and hydration from a person in a permanent vegetative state, or a minimally conscious state. | The President or by another judge nominated by the President: Court of Protection (COP) Rules SI No 1744 r86 and Practice Direction (PD) 12A |
•Cases where a declaration of incompatibility is sought pursuant to section 4 of the Human Rights Act (HRA) 1998; •applications in relation to a case involving an ethical dilemma in an untested area; •other cases in relation to serious medical treatment (as to which, see the definitions in PD 9E paras 3 and 4), eg non-therapeutic sterilisation, certain terminations of pregnancy, experimental or innovative treatments, medical treatments or procedures that involve a degree of force or restraint, cases involving organ or marrow donation by an incapacitated person. | A Tier 3 judge: COPR rr83, 86 and PD 11A, PD 12A |
Circuit judges and district judges
4.12The Senior Judge, who has circuit judge rank and is a Tier 2 judge, is supported by 4.8 resident district judges at First Avenue House in London and by circuit judges and district judges across England and Wales who are nominated (‘ticketed’) to undertake Court of Protection work as required.
Independence of the judiciary
4.13Because the office of Lord Chancellor is a political appointment and the holder need not have any legal or judicial qualification or experience, it is the Lord Chief Justice who is responsible for judges and their management, performance and discipline. In terms of their Court of Protection work, the judges are led by, and responsible to, the President.
4.14In order to further ensure judicial independence and the rule of law, section 2(5) of the Courts Act 2003 provides that: ‘The Lord Chancellor may not enter into contracts for the provision of officers and staff to discharge functions which involve making judicial decisions or exercising any judicial discretion’.