Contesting an applicationApplications in health and welfare casesApplications in health and welfare casesApplications in health and welfare casesApplications in health and welfare casesApplications in health and welfare casesApplications in health and welfare casesApplications in health and welfare cases
9.59Careful consideration should be given to the available evidence when considering whether to contest an application, or to suggest an alternative order. Given that the initial case management conference will take place within 28 days of the issue of the proceedings, speed is of the essence here.
9.60The grounds on which an application may be contested will depend upon the facts of the case and the evidence available. In welfare cases, costs will always be a consideration, as the costs of any contested hearings will (most likely) be met out of the resources of the parties themselves.
1COPR r157; see also chapter 16. This does not mean that genuinely contested applications should not be fully explored and prepared. Clearly, if after careful investigations and taking material from potential witnesses the adviser reaches the view that contesting an application will not succeed, then the adviser must give their client the appropriate advice. However, in welfare cases, families seeking to oppose the removal of P – or to seek P’s return – must be given the opportunity fully to put their case to the court or their own rights under Articles 8 (right to respect for private and family life) and indeed 6 (right to a fair trial) of the European Convention on Human Rights (ECHR) may be compromised. In deciding whether the case is one that should be contested, it is in the authors’ experience often useful to look outside the areas of dispute between the applicant, often a statutory body, and the respondent(s), often family member(s) caring for P. In such a case, the following questions can usefully be considered at this very early stage:
•What does the party think that P would want to happen?
•What were the care arrangements for P before the dispute arose? Has anything changed (for example, was additional support given by another carer who has died or moved away)?
•Has there been any change in the amount of support provided to P by the relevant statutory bodies?
•Who are the other important individuals in P’s life apart from the respondent and members of the relevant statutory body? Can any of them provide evidence about positive aspects of P’s care (past or current)? What, if anything, can they say about P’s likes and dislikes and what is important to P?
•If the relationship between the respondent and the statutory body is currently poor, has this always been the case? Is the respondent in contact with any professionals with whom he or she has worked well in the past?
•Is evidence needed about any cultural issues or expectations? Who might be able to provide such evidence?
•Are there likely to be significant disputes of fact? If so, what evidence needs to be gathered to corroborate the respondent’s case?
•Is it likely that expert evidence may be needed? It may not be possible on receipt of an application to make this judgment. However, once the need for an expert is identified by any party, they would be well advised to make enquiries as soon as possible about the costs and availability of suitable experts. This subject is discussed in detail in chapter 12.
9.61In all cases, the relevance of the information put before the court both in the application and in any potential response should always be considered.
9.62The authors further suggest that parties should seek to maintain a flexible approach, focused on P’s best interests and avoid entrenched positions as far as possible. This allows alternative options to be explored by way of mediation (see chapter 19), and may help to avoid incurring the expense of attended court hearing(s).
9.63Advisers should, however, be alert to the danger of attempting to persuade parties to take an approach that fundamentally they do not agree with. In a welfare case, for instance, a family carer recently served with an application seeking a draconian step in relation to P should of course be given the opportunity to consider the benefits of consenting at an early stage. However, advisers will not at that stage have gathered all the available evidence that might point away from the application. It is important that advisers are scrupulous in following their client’s instructions and gathering evidence that may support their position. Advisers will need to be astute to making clear to the court at the case management conference why more time may be required, and to giving a clear time-frame within the task is to be carried out.
9.64If the parties are able to reach a negotiated way forward that represents a compromise between the position advocated by the applicant and that desired by the respondent(s), the court should be notified and a consent order submitted, with each party or their legal representative confirming their consent to the order as agreed: see further in this regard para 10.48.
9.65If the parties cannot agree a negotiated way forward, the court will proceed to determine how best to put itself in a position to reach a conclusion. This is discussed in chapter 10.