On 16 October 2014 Sir James Munby,
President of the Family Division, handed down his second judgment in the
post-Cheshire West case
Re X and Others
(Deprivation of Liberty) (No 2) [2014] EWCOP 37. The full judgment is
available
here.
The earlier judgment in this case (
Re X and Others (Deprivation of Liberty)
[2014] EWCOP 25,
[2014] ELD LJ 327) addressed some of a list of 25 questions identified in
relation to how deprivation of liberty applications should be handled. The full judgment in that case is available
here.
In the present case, the President addressed three questions
which remained outstanding, namely:
'(7) Does P need to be joined
to any application to the court seeking authorisation of a deprivation of
liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or
both?
(9) If so, should there be a requirement that P … must have a litigation friend
(whether by reference to the requirements of Article 5 ECHR and/or by reference
to the requirements of Article 6 ECHR)?
(16) If P or the detained resident requires a litigation friend, then: (a) Can
a litigation friend who does not otherwise have the right to conduct litigation
or provide advocacy services provide those services, in other words without
instructing legal representatives, by virtue of their acting as litigation
friend and without being authorised by the court under the Legal Services Act
2007 to do either or both …?'
In addressing the
first question, the President confirmed that there is no requirement either in
domestic law or under the ECHR for P to be a party to such proceedings, citing
similarities with wardship proceedings where wards do not have to be joined as
parties. However, if P wished to be
joined he or she should be and should be offered all necessary support to
participate. Furthermore, there is
nothing to prevent P being involved (and represented) in proceedings concerning
him or her without being joined as a party.
Dealing with the
second question, the President confirmed that if P is involved but not joined
as a party, there is no need for a litigation friend to be appointed. Whether, if P is joined as a party, it is
necessary for a litigation friend to be appointed is an issue which will have
to be considered in more detail by the ad hoc, non-statutory committee referred
to by the President in his earlier judgment, as such a principle would require
a change to the rules. However, he
confirmed that he could see no reason in principle why that change could not be
effected.
In relation to the
third question, the President confirmed that where a litigation friend is appointed
for P there is no requirement for that litigation friend to instruct a legal
representative in the proceedings.
However, a litigation friend who does not have a right of audience will
need permission from the court to act as advocate.
Finally, the President
urged the committee to take a pragmatic view in designing a speedy but fair
process to be followed in deprivation of liberty cases which meets both
domestic and European standards, whilst noting the realities of a lack of
availability of legal aid and the costs risks for litigation friends.
A further judgment
is now awaited dealing with those questions identified in the earlier judgment
which remain outstanding.
