Re P; A Local Authority v PB [2011] EWHC 502 (COP)
(1) The judge's view was that in exercising a welfare or best interests jurisdiction (whether under the Children Act, under the inherent jurisdiction, or under the MCA) the court is choosing between available options; a point then arises whether the COP can add to the available options (by application of public law and HRA tests in the private law proceedings) or whether judicial review is necessary; these jurisdictional issues should be addressed well before a case comes on for final hearing, so that the relevant authority does not refuse to provide the services after the court has decided that they are in P's best interests; in this case there may be a further hearing to decide the issue. (2) At an appropriate stage in most COP welfare cases, a direction along the following lines should be given (paraphrased) - Each party shall serve a document on the other setting out (a) the facts he asks the court to find, the disputed facts he asserts the court need not determine, and the findings that he invites the court to find by reference to the former facts; (b) the investigations he has made of alternative care and thence the alternatives he asserts should be considered (and by whom the relevant services should be provided); (c) by reference to (a) and (b), the factors he asserts the court should take into account; (d) the relief sought and why he asserts the factors support the granting of that relief; (e) the relevant issues of law. (3) Procedural/substantive fairness did not require overnight contact at the mother's home before the final hearing, and this would not be in P's best interests
Related judgments
Re P; A Local Authority v PB [2011] EWHC 2675 (COP)
Other
Before: Charles J
Judgment: 26/1/11
Thanks
Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgments.
External links
Possible Bailii link (not there when checked last night, but might have appeared since)
Transcript of first judgment - points (1) and (2) above
Transcript of second judgment - point (3) above