Relying upon the ECHR in the course of proceedingsHuman Rights Act 1998European Convention on Human Rights:Court of Protection, andHuman Rights Act 1998European Convention on Human Rights:Court of Protection, andHuman Rights Act 1998European Convention on Human Rights:Court of Protection, andHuman Rights Act 1998European Convention on Human Rights:Court of Protection, and
25.2The ECHR permeates all aspects of the decision-making of the Court of Protection, both as to case management and as regards the decisions and declarations that it makes at the end of proceedings. We have touched upon specific procedural considerations at relevant points in the balance of this book. For instance, questions of disclosure (and withholding of disclosure) engage difficult balancing exercises between the different ECHR rights of the parties involved (see paras 12.102 onwards). The particular procedural issues arising in relation to cases involving deprivation of liberty as covered in chapter 21. A brief overview of the provisions of the ECHR that are likely to be most relevant to the court in deciding what substantive declarations and decisions to grant can be found at paras 4.39–4.42.
1A good introduction to the ECHR and to the Human Rights Act 1998 is Wadham et al, Blackstone’s Guide to the Human Rights Act 1998, Oxford University Press, 7th edition, 2015.25.3The Court of Appeal in
Re MN2Re MN (Adult) [2015] EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521. confirmed that the Court of Protection has jurisdiction to hear a claim under the Human Rights Act (HRA) 1998 s7 that a public body has acted (or proposed to act) incompatibly with the ECHR. We address the issue of where the breach has already happened in the next section, but for present purposes focus on the issue of what a party should do when the actions of the public body are still ‘live’ – in other words, where they have the potential, if reversed or changed, to impact upon the decisions that the Court of Protection might make in relation to P. In
MN, the decision in question was a decision not to fund a particular care package. The Court of Appeal confirmed that the court might, exceptionally, have to consider whether the actions of the public body breached the relevant party’s human rights (and, for those purposes, consider what decision it might make in P’s best interests if the care package or other relevant service was hypothetically ‘on the table.’).
25.4The decision of the Court of Appeal is under appeal at the time of writing, listed before the Supreme Court in December 2016. Until and unless reversed, it is clear that it will only be an exceptional case in the court which will engage in a hypothetical assessment of where P’s best interests may lie for purposes of determining a claim based upon HRA 1998 s7(1)(b). Otherwise, and as discussed in chapter 24, claims as to whether a public body has acted lawfully (including by reference to their obligations under the HRA) should be brought in the Administrative Court.
25.5If a party wishes the court to carry out the ‘exceptional’ assessment of a hypothetical option on the basis set out in the paragraphs immediately above, then the following will apply:
•the claim must be formulated and pleaded properly by reference to HRA 1998 s7(1)(b); and
•the claim will then be dealt with by the Court of Protection as part of the main proceedings: it will not be treated as a discrete issue separated from the rest of the case.
3Re MN (Adult) [2015] EWCA Civ 411, [2016] Fam 87 at para 85, applying Re V [2004] 1 FLR 944.