Neutral Citation Number: [2014] EWCA Civ 1176
 
Case No: B4/2013/3728 + 3747 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE ELEANOR KING)
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Date: Wednesday, 25 June 2014
 
B E F O R E:

LORD JUSTICE FLOYD 
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ACCG & ANR
Respondent 
‑v‑
 
MN  
Applicant 
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MISS K BRETHERTON (instructed by Dollman & Pritchard) appeared on behalf of the first Applicant
MISS A WEERERATNE (instructed by Scott Moncrieff) appeared on behalf of the second Applicant
the Respondents did not appear and was not represented
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J U D G M E N T (as approved by the court) 
1.	LORD JUSTICE FLOYD:  Before the court are two renewed applications for permission to appeal from a judgment of Eleanor King J on 20 November 2013.  Eleanor King J was sitting as a judge of the Court of Protection in the case of MN, who is a young man suffering from mental and physical disabilities.  The applicants are Mr and Mrs N, who are his parents.  They have separate notices of appeal.  ACCG is the body responsible for MN's care.  ACCG sought an order before the judge that MN reside in such accommodation and receive such care as they directed and that MN's contact with his father, mother and other family members be regulated by ACCG and be supervised by such persons when appropriate as ACCG should direct.
2.	By the time the matter came before the judge the issues had narrowed to two.  The first concerned the mother's wish that contact be afforded at home and the second that she be given greater scope to assist with MN's personal care at RCH, the care home where MN is currently accommodated.  An application of that nature normally requires, as all parties accepted, a determination of what was in the best interests of MN.
3.	There have been protracted disputes within this family between the parents of MN and the bodies responsible for his care for many years.  The judge recorded at paragraph 17 that there came a point where ACCG wrote to the parties, indicating that they would not support contact at home.  To put it another way, ACCG were deciding that contact at home was not an available option.  
4.	The judge recorded at paragraph 18 that RCH was not willing to have Mrs MN take a greater part in MN's care, in part due to fear about Mrs MN's cooperation and in part because the parents had refused to have training in manual handling.
5.	Those decisions having been taken, the question of whether in principle it would be in the best interests of MN to have contact at home could be said in one way to be an academic or hypothetical question.  Nevertheless, counsel for both parents pressed the court to go on to determine whether it would be in the best interests of MN to have care at home and for there to be a greater involvement in MN's care by Mrs MN at RCH.  
6.	This raised at the last minute a preliminary issue in relation to the matters which had come before the judge for a three day hearing, namely whether the court was bound to make a determination of the best interests of MN when decisions had been taken by the local authority that those particular options were no longer available.
7.	Under enormous pressure of time the issue was addressed, both by counsel appearing for the parents and by the learned judge.  The learned judge assembled and analysed a large number of authorities on this question.  She pointed out that the role of the court was to make a decision on behalf of a person who lacks the capacity to make the decision for him or herself.  She cited what Baroness Hale said in Holmes‑Moorehouse v Richmond upon Thames London Borough Council at paragraph 30.  
8.	In the end the judge decided to decline the invitation to decide the question of whether it was in MN's best interests to have care at home, as the parents wished.  At paragraph 54 she said this in relation to MN:
"Contact is afforded to the parents as often as they wish at RCH and it is currently available three times each week at the care home and once a month in addition in the community.  The parents said that they are not taking up all of the contact for financial reasons.  Contact is not available at the parents' home.  The court in making a decision on MN's behalf will look to whether the contact available is in his best interests.  Had there not been the recent increase in contact it may well have said it was not sufficiently frequent at RCH.  The court should not say that notwithstanding there is no funding for contact at his parents' home, whether it be Perth or Mr and Mrs N's home, the court will nevertheless opt for that hypothetical option."
9.	In essence the judge was saying that the Court of Protection should not decide what in substance were public law questions about the legality of the local authority's decision.
10.	On this appeal the appellants wish to argue that the judge was wrong to decline to decide whether it was in MN's best interests to have the care that the local authority would not provide.  What is said in essence is firstly that it was necessary for the Court of Protection to decide what was in MN's best interests because without such a decision there would be no procedural means for the parents to bring a judicial review application to challenge the local authority's decision.  
11.	Secondly, judicial review itself would not be an appropriate forum to decide what was in MN's best interests and in any event without a finding about MN's decision as to whether he wanted such care permission to bring proceedings for judicial review would not as a matter of practical reality be granted.
12.	Thirdly, the judge wrongly decided that the question was hypothetical.  Whether MN wished to take the steps that his parents wanted to take was a real question and which was a necessary prerequisite to any challenge to the local authority's decision and could only properly be taken by the Court of Protection.
13.	The argument in summary is that unless the court determines whether it is in MN's best interests to have the care in question, then MN and his parents are practically denied a forum in which to challenge the local authority's decision.
14.	Permission to appeal was refused on paper by Macur LJ on 28 February 2014.  Having listened to the arguments this morning I consider that an appeal on the grounds outlined would have a realistic prospect of success and I propose to grant permission.