The Family Lawyer and the Court of Protection
In these wobbly and ever changing days, family lawyers in particular are re-appraising their skillset and breadth of practice. Many are wondering if they should be bringing themselves up to speed in respect of Court of Protection work, and this is not lost on family law publishers Jordans, who have a number of titles and who are running a conference on the topic in September (details here). Amongst the speakers at that event will be the author of this book, District Judge Marc Marin. No doubt to some extent his sessions will be a reprise of the contents of the book, with some updating to reflect subsequent caselaw (the book was published in 2010 and there have been a number of reported cases since).
As an entry point into this area of work this book is really helpful. It is unlikely to be sufficient in itself as a core sourcebook for a specialist Court of Protection practice, but it helps the reader to understand the bare bones of the statutory and procedural framework, and developing ethos and practices in this emerging arena. Family lawyers tend to be cognizant of the Mental Capacity Act 2005 only insofar as it provides us with a working statutory definition of “capacity” for the purposes of family proceedings. The reader is taken through this and the wider ranging provisions of the Act; there is much more to the Act than this single aspect.
The Act itself is usefully set out in full in the Appendices, along with the Procedure Rules and accompanying Practice Directions. In that respect it is a handy pocket sized reference guide for core material.
As for the procedure rules themselves, family lawyers will find much that is familiar, both in terms of structure (very similar to the Family Procedure Rules 2010) and spirit (overriding objective, case management powers etc.). There are of course significant differences in approach between the two courts and this book is useful in highlighting some of those potential pitfalls. The author suggests that the Court of Protection is prepared to adopt a far more summary and informal approach to straightforward cases than is often the case in family work. How much this is a reflection of judicial style and practice at the central base of the Court in Archway, and how much it is “rolled out” across the Court of Protection in the regions is unclear.
Helpful for even those lawyers not intending to carve out a practice in the Court of Protection is the clear explanation of the overlapping jurisdictions of the Court of Protection and the Family Courts, and guidance as to how best to choose between or combine the two courts. This is something that all family lawyers should be up to speed with, but I suspect there is in fact a widespread knowledge gap (which in my case this book has gone a long way to remedying).
Unusually, for a practitioner’s textbook, the book contains a number of worked through case studies and sample forms, which are helpful in jolting family practitioners out of misplaced assumptions about how things might be done, based on family court experience. I was left wondering slightly how much the description of the Court of Protection’s practice was a reflection of the personal approach of the author himself, but this is probably because the court and its procedures are so new that much of the guidance in this area has had to be drawn from personal knowledge rather than caselaw, which remains pretty thin on the ground. Ultimately though, the guidance of a judge experienced in both jurisdictions has got to be a pretty good starting point. The Family Lawyer and the Court of Protection can be purchased from Jordans for £60.00 here.