Practice and procedure

STARTING PROCEEDINGS

Permission to apply

For certain applications to the court, the applicant must obtain permission to apply. In such cases, the application for permission is made as part of the main application and the court will consider both issues together. The first stage in any application is therefore to establish whether or not you need to apply for permission.

Permission is not usually required to make an application relating to property and financial affairs, but permission may be required to make an application relating to personal welfare. The detailed rules as to when permission is required are contained in section 50 of the Mental Capacity Act 2005 (MCA 2005) and Part 8 of the Court of Protection Rules 2017 (COPR 2017). The rules and the procedure for making an application for permission are explained in the Practice Note: Court of Protection—permission to apply.

Making an application to the Court of Protection

Most applications to the Court of Protection are commenced by filing a COP1 application form, which should identify the applicant and the person lacking capacity (P) and state the

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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