Accg & Anor v MN

On a renewed application for permission to appeal, permission is appropriate where the proposed grounds have a realistic prospect of success. That threshold may be met where an appeal raises an arguable issue about whether the Court of Protection must determine a person's best interests after a care authority has decided that the requested care or contact option is unavailable. Granting permission does not resolve that substantive issue. Nor does it determine whether the Court of Protection or judicial review is the proper forum for challenging the care authority's decision.

ACCG was responsible for the care of MN, a young man with mental and physical disabilities. MN's parents sought contact at home and a greater role for the mother in his personal care at RCH, where he lived. ACCG and RCH had decided that those options were unavailable.

Eleanor King J, sitting in the Court of Protection, declined to determine whether the proposed arrangements were in MN's best interests, treating the issue as substantially a public law challenge to the care authority's decision. MN's parents brought separate renewed applications for permission to appeal. The central issue was whether the Court of Protection was required to determine best interests despite the care authority's decision that the requested options would not be provided.

1. Permission granted. Lord Justice Floyd granted the two renewed applications for permission to appeal. Having heard the arguments, he concluded that an appeal on the proposed grounds had a realistic prospect of success.
2. Issues warranting consideration on appeal. The proposed appeal raised an arguable question whether the Court of Protection had to determine what was in MN's best interests when the relevant care or contact option had been ruled out by the authority responsible for his care. The parents argued that such a determination was necessary to provide a practical basis for challenging the authority's decision by judicial review.
3. The parents further argued that judicial review was not an appropriate forum for deciding MN's best interests and that, without a best-interests determination, permission to seek judicial review might not realistically be obtained. They also contended that the question was not hypothetical because MN's wishes and best interests were relevant prerequisites to any challenge.
4. The judgment recorded that Eleanor King J had regarded the proposed home contact and increased parental involvement as unavailable options and had declined to determine their hypothetical best interests. The Court of Appeal did not decide the substantive jurisdictional question at this stage. Its decision was confined to permission to appeal.

1. Court of Appeal (Civil Division): On 25 June 2014, Lord Justice Floyd heard two renewed applications for permission to appeal and granted permission because the proposed grounds had a realistic prospect of success.
2. High Court, Court of Protection: Eleanor King J, on 20 November 2013, declined to determine whether the proposed home contact and increased parental involvement were in MN's best interests where those options had been treated as unavailable by the care authorities.