15.4Moreover, many applications which start out hotly contested end up being resolved by consent without the need for a final hearing. This can be, for instance, because an independent expert has provided a report making entirely clear where P’s interests lie which is accepted by all parties and encapsulated in a proposal put to the court to be endorsed as a consent order. In other cases, mediation or some other form of alternative dispute resolution (discussed further in chapter 19) can achieve a resolution to the issues dividing the parties that they consider that they can properly put to the court as being in P’s best interests.

15.5As discussed above (para 10.48), where parties have reached agreement, they are required to notify the court as soon as possible. Where a consent order has been submitted for approval which finally disposes of all the issues in the case, the starting position will be that the court will only convene a hearing a) if insufficient notice has been given; or b) there is some specific feature which the court considers it must deal with at an attended hearing. One (extreme) example of the latter would be in an application for withdrawal of clinically assisted nutrition and hydration from a person in a permanent vegetative state; it is often the case that such applications are ultimately agreed by all the parties, but judges will always convene a hearing and deliver a judgment recording their determination (see further in relation to serious medical treatment cases, chapter 22).2See, for instance, Re D [2012] EWHC 885 (COP), [2012] COPLR 493. Another less extreme, but probably – and sadly – more common example, is where the information provided with the consent order is not sufficient to satisfy the judge that they can endorse it without further clarification that the decisions/declarations set out are properly in P’s best interests.

15.6It should be remembered that wherever the court makes an order without a hearing, COPR r89 applies so as to allow P, any party to the proceedings, or any person affected by the order to apply for reconsideration. Reconsideration is addressed further in chapter 18, but is unlikely to be relevant where the court is endorsing a consent order submitted by the parties for approval.

15.7In some cases, the applicant may decide that they wish to withdraw proceedings. For instance, the safeguarding concern that underpinned a local authority’s application to the court for draconian welfare orders (eg removing the person from their own home and restricting contact with a family member) has now been sufficiently alleviated that the relevant local authority no longer considers that they are justified. Or it may become clear that it will not be possible to establish a sufficient factual basis upon which to seek such orders (as to which see further chapter 14). With the introduction of COPR r87A in July 2015, permission is now required to withdraw proceedings. An application must be made on a COP9 form,3COPR r87A(2). following the normal procedure for applications made within proceedings (see para 10.22). It is suggested that a decision upon an application to withdraw proceedings is not a decision falling within MCA 2005 s1(5): ie it is a case management decision on the part of the court, rather than a decision taken for or on behalf of P (and therefore not a ‘best interests’ decision), albeit that the court will have P’s welfare interests squarely in mind.4See, by analogy, Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431 at para 40.

15.8As discussed further in para 23.18, whilst the court is likely to endorse an order to withdraw proceedings where it is clear that the underlying basis for the concern motivating the application is no longer present, it is likely that the court will take a dim view of attempts to withdraw proceedings on the basis that the public authority which has brought proceedings now takes a different view of where the person’s interests lie than it is likely that the court will do. Indeed, the public body may well find itself directed to file evidence (including care plans), even though the plan’s contents may not or do not reflect its formal position.5Re W, see also Re MN (Adult) [2015] EWCA Civ 411, (2015) 18 CCLR 521, [2016] Fam 87 at para 37. Where the public body decides, in the discharge of its public law obligations relating to funding of care and treatment, that a particular option is no longer on the table, the position is different, and is discussed in chapter 24.