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					PRACTICE NOTE

OFFICIAL SOLICITOR, CAFCASS AND THE NATIONAL ASSEMBLY FOR WALES: URGENT AND OUT OF HOURS CASES IN THE FAMILY DIVISION OF THE HIGH COURT

1.

This Practice Note is issued jointly by the Official Solicitor, the Chief Executive of CAFCASS, and the Chief Executive of CAFCASS CYMRU on behalf of the National Assembly for Wales. It describes the procedure to be followed in respect of urgent and out of hours cases in which a decision is sought by a Judge of the Family Division of the High Court. It is issued with the approval of the President of the Family Division.

2.

In some cases, urgent or out of hours applications become necessary because applications to the court have not been pursued sufficiently promptly. This is

undesirable, in particular because urgent applications may be founded on incomplete evidence, enquiries and under-prepared advocacy, and should be avoided where possible. A judge who has concerns that the urgent or out of hours facilities may have been abused may require a representative of the claimant to attend at a subsequent directions hearing to provide an explanation.

3.

Whenever possible, urgent applications should be made within court hours. earliest possible liaison is required with the Clerk of the Rules.

The

It will usually be

possible to accommodate a genuinely urgent application (at least for initial directions) in the Family Division applications court, from which the matter may, if necessary and possible, be referred to another judge.

4.

When it is not possible to apply within court hours, contact should be made with the security office at the Royal Courts of Justice (020 7947 6000) who will refer the matter to the urgent business officer. The urgent business officer can contact the duty judge. The judge may agree to hold a hearing, either convened at court or elsewhere, or by telephone. When the hearing is to take place by telephone it should be by taperecorded conference call arranged (and paid for in the first instance) by the claimant’s solicitors. Solicitors acting for NHS Trusts or other potential claimants should have standing arrangements with their telephone service providers under which such conference calls can be arranged. All parties (especially the judge) should be informed that the call is being recorded by the service provider. The claimant should order a transcript of the hearing from the service provider.

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Adult Medical treatment and welfare cases

5.

The Official Solicitor will act in urgent cases under the inherent jurisdiction concerning medical treatment to, or the welfare of, an adult who lacks capacity to make decisions for himself or herself. His office should be contacted at the earliest possible opportunity if an urgent application is envisaged. Where cases arise out of hours the urgent business officer will be able to contact him or his representative. As with cases dealt with on a less urgent basis, evidence is required of incapacity and as to best interests. When written evidence is not available, oral evidence of incapacity must be available. When there is a telephone hearing, oral evidence must be given as part of the conference call.

6.

When final evidence either as to capacity or best interests is not available, the court may be willing to grant an interim declaration (CPR 25.1(1)(b) - An NHS Trust -v- Miss T [2004] EWHC 1279 (Fam)). Evidence establishing on the balance of probability that the patient is under incapacity and that the treatment proposed is in his or her best interest must be adduced. An interim injunction to restrain treatment may be granted Re C [1994] 1FLR31.

7.

An adult patient must be a party and must be represented through a litigation friend (CPR 21.3). Notice of an application must be given to the patient (or his or her

litigation friend). The claimant may be an NHS Trust, local authority, relative, carer, or the patient. The Official Solicitor stands ready to accept appointment as litigation friend (usually for the patient as defendant) if the conditions for his appointment are shown (either on an interim or final basis) to exist. Should a declaration be made without notice, it is of no effect and may be set aside - Re St George’s Healthcare NHS Trust v- S [1998 2 FLR 721. Children medical treatment and welfare cases

8.

It may be desirable for a child who is the subject of such proceedings to be made a party and represented through a guardian ad litem (usually an officer of CAFCASS or a Welsh Family Proceedings Officer). CAFCASS and CAFCASS CYMRU stand ready to arrange for an officer to accept appointment as guardian ad litem. They should be contacted at the earliest opportunity where an urgent application is envisaged. For urgent out of hours applications, the urgent business officer is able to contact a representative of CAFCASS. CAFCASS CYMRU is not able to deal with cases that

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arise out of office hours and those cases should be referred to CAFCASS who will deal with the matter on behalf of CAFCASS CYMRU until the next working day. A child of sufficient understanding to instruct his or her own solicitor should be made a party and given notice of any application.

9.

Interim declarations/orders under the wardship jurisdiction (or Children Act 1989) may be made on application either by an NHS trust, a local authority, an interested adult (where necessary with the leave of the court) or by the child if he or she has sufficient understanding to make the application.

General Issues

10.

Parents, carers or other necessary respondents should be given the opportunity to have independent legal advice or at least to have access to support or counselling.

11.

In suitable cases, application may be made for direction providing for anonymity of the parties and others involved in the matter in any order or subsequent listing of the case. Exceptionally, a reporting restriction order may be sought - see the President’s Practice Direction issued on 18 March 2005 [2005] Fam Law 398.

12.

Either the Official Solicitor or CAFCASS, as the case may be, may be appointed by the court as advocate to the court - see Memorandum from the Lord Chief Justice and the Attorney General reproduced in Civil Procedure at 39.8.2, especially at 39.8.5.

13.

Draft standard form orders for use in urgent and out of hours medical treatment cases are annexed to this note. They should be adapted to suit the individual circumstances of each case.

Consultation with CAFCASS, CAFCASS CYMRU and Official Solicitor Members of the Official Solicitor’s legal staff, CAFCASS, and CAFCASS CYMRU are prepared to discuss medical cases before proceedings are issued. In all cases in which the urgent and out of hours procedures are to be used it would be helpful if the Official Solicitor, CAFCASS or CAFCASS CYMRU have had some advance notice of the application and its circumstances. Enquiries about adult medical and welfare cases should be addressed to a family and medical litigation lawyer at the office of the Official Solicitor, 81 Chancery Lane, London WC2A, telephone 0207 911 7127, fax number:

14.

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0207 911 7105, e-mail: enquiries@offsol.gsi.gov.uk. Enquiries about children medical cases should be directed to the duty lawyer at CAFCASS, 8th Floor, South Quay Plaza 3, 189 Marsh Wall, London E14 9SH, telephone: 0207 510 7000, fax number: 0207 510 7104. Enquiries about children medical cases in Wales should be directed to the Social Care Team, Legal Services, National Assembly for Wales, Cathays Park, Cardiff CF10 3NQ, telephone: 02920 826813, fax no. 02920 823834

Laurence Oates Official Solicitor

Anthony Douglas Chief Executive CAFCASS

Dafydd Ifans Chief Executive CAFCASS CYMRU National Assembly for Wales

28 July 2006

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