Suchergebnisse

Purpose
– The purpose of this paper is to outline how questions relating to capacity arise in the context of safeguarding, and when applications to the Court of Protection are required in relation to those who may lack capacity. It also seeks to provide guidance as to how applications to the Court of Protection should be made so as to ensure that they are determined effectively and in a proportionate fashion.


Design/methodology/approach
– The paper draws on the practical experience of practising barristers appearing before the Court of Protection, and on the experience of a social worker who is an MCA/DOLS lead at a London local authority. The paper proceeds by way of a review of the relevant statutory provisions, an overview of the Court of Protection and then to a practical analysis of when and how applications to the Court need to be made.


Findings
– When to go to the Court of Protection in the safeguarding context is poorly understood, and there has not been proper recognition of the fact that proceedings for "adult care orders" have a strong forensic analogy with applications for care orders in relation to children. It is only by recognising these forensic similarities that local authorities can properly make use of the Court of Protection in the discharge of their obligations to vulnerable adults in their area.


Practical implications
– The paper should lead to a recognition that there is a specialist "adult protection court" within the Court of Protection, and that applications for adult care orders to that court require specific and careful preparation and presentation. It will therefore lead to better use of the Court of Protection in the safeguarding context and – ultimately – a better balance between empowerment and protection of vulnerable adults who may lack capacity.


Originality/value
– The paper is original in combining both legal and social work expertise to reach practical conclusions as to why such poor use has been made of the Court of Protection in safeguarding context. Its value lies in the deployment of that expertise to suggest how better use can be made in the future.

This is an Opinion Statement prepared by the CFE ECJ Task Force1 on Case C-386/14, in which the 2nd Chamber of the Court of Justice of the European Union (ECJ) delivered its judgment on 2 September 2015, following the opinion of Advocate General Kokott of 11 June 2015.3 The judgment, which has also been the object of an ECJ press release, is a further interpretation of the freedom of establishment in the context of the French "intégration fiscale" and clarifies that taxpayers can claim some benefits of group taxation regime even if EU law would not allow them the full benefit of such regime. It also confirms that an option granted to Member States in secondary EU legislation cannot justify a breach of the fundamental freedoms.