IntroductionEnforcementEnforcement:requirement to take or refrain from actionsEnforcementEnforcementEnforcement
17.1Previous chapters in this book have set out the steps by which a judge can be placed in a position to determine applications relating to P (and to grant interim relief pending such final determination). Sometimes, all the court will be required to do is to grant a declaration, either as to P’s (lack of) capacity or that a course of action is lawful,
1Under Mental Capacity Act (MCA) 2005 s15(1)(a) or (c) respectively. and no substantive decisions will be taken by the court that will require enforcement. In such situations, there would be no need for the judgment and the accompanying order of the court to be enforced. Indeed, it would appear that a declaration alone is not capable of being enforced by way (for instance) of committal proceedings.
2See MASM v MMAM and others [2015] EWCOP 3, [2015] COPLR 239 and Re MN (Adult) [2015] EWCA Civ 411, [2015] COPLR 505 at paras 87–91.17.2However, on occasions, one (or more) of the parties to the proceedings may be required either to take or to refrain from taking specific actions. This requirement can arise in three main ways:
•by way of case management directions made so as to secure the effective resolution of the application;
•as a necessary consequence of a decision (for instance, that P is to be moved from their home into a care home), which can only be given effect by one or more of the parties;
•by the court making an injunction specifically requiring one of the parties to do something or not to do something (for instance, not to have contact with P save under specified circumstances).
17.3Court of Protection judges are well aware (especially in welfare cases) that:
… the mere fact that a litigant, perhaps in the heat of a frenzied battle, may breathe defiance is not to be taken by the court as necessarily an accurate reflection of what will happen in the future. The court assumes, is entitled to assume, has to assume, because otherwise the road leads to anarchy, that its orders will be complied with.
3Re SA [2010] EWCA Civ 1128 at 52 per Munby LJ, a case in which the court made orders directing that both P and her mother comply with a capacity assessment of P in circumstances where P, apparently under the influence of her mother, was indicating her refusal to do so.17.4Absent the ability to enforce decisions falling into the categories set out above, however, the Court of Protection would be toothless. This chapter discusses the mechanisms by which the court can enforce its judgments and its orders as well as its own processes.