CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (06 March 2019)

CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (06 March 2019)

The judge erred in summarily dismissing the application without sufficient evidence or proper enquiry into CB's best interests and the feasibility of a return home, particularly given the fundamental rights at stake. Scepticism and doubt are not a lawful basis for curtailing liberty without a full and fair assessment.

Citation
[2019] EWCOP 5
Parties
Appellant: CB; 1st Respondent: Medway Council; 2nd Respondent: CM
Jurisdiction
England and Wales
Judgment Date
06 March 2019
Procedural Posture
Court of Protection Appeal / Appeal From Summary Dismissal at First Instance
Outcome
Appeal allowed
Legal Topics
Deprivation of Liberty, Best Interests, Summary Judgment, Article 5 ECHR, Article 6 ECHR, Court of Protection Rules
Mental Capacity Human Rights Public Law Deprivation of Liberty Best Interests Summary Judgment Article 5 ECHR Article 6 ECHR +1 more

Case Brief

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Parties

CB

Appellant

Medway Council

1st Respondent

CM

2nd Respondent

Procedural Posture

Court of Protection Appeal / Appeal From Summary Dismissal at First Instance

Legal Issues

  1. 1 Whether the summary dismissal of the application regarding CB's residence and care was lawful and fair
  2. 2 Whether the judge had sufficient evidence to summarily dismiss the application without further enquiry
  3. 3 Whether the process complied with the overriding objective and Articles 5 and 6 ECHR

Ratio Decidendi

The judge erred in summarily dismissing the application without sufficient evidence or proper enquiry into CB's best interests and the feasibility of a return home, particularly given the fundamental rights at stake. Scepticism and doubt are not a lawful basis for curtailing liberty without a full and fair assessment.

Court Disposition

Appeal allowed

Orders

  • The summary dismissal is set aside.
  • The case is remitted for further enquiry and assessment of CB's best interests, with proportionality and avoidance of delay emphasised.