Human rights and the Court of Protection
Produced in partnership with Alex Ruck Keene of 39 Essex Chambers
Human rights and the Court of Protection

The following Private Client practice note Produced in partnership with Alex Ruck Keene of 39 Essex Chambers provides comprehensive and up to date legal information covering:

  • Human rights and the Court of Protection
  • The Human Rights Act 1998 and the European Convention on Human Rights
  • The procedure for relying on the ECHR in the course of proceedings
  • Human rights and best interests
  • Remedies for breaches of human rights
  • Declarations and damages
  • The Convention on the Rights of Persons with Disabilities

BREXIT IMPACT: As of exit day (31 January 2020) the UK is no longer an EU Member State. However, in accordance with the Withdrawal Agreement, the UK has entered an implementation period, during which it continues to be subject to EU law. Brexit will have no automatic impact on the Human Rights Act 1998 (HRA 1998), or the incorporation of the European Convention on Human Rights (ECHR) provided for by the HRA 1998. Nor will it automatically lead to the UK withdrawing its membership from the Council of Europe, which is the parent body of the ECHR and the European Court of Justice and is an entirely separate body from the European Union. For further guidance on the impact of Brexit on the HRA 1998, see: What does Brexit mean for the Human Rights Act 1998?.

The issues for determination in the welfare jurisdiction of the Court of Protection are often deeply personal and almost always involve the exercise of state power over an individual: for instance by placing restrictions on contact between the protected person (P) and their family. It is therefore unsurprising that human rights permeate all aspects of the court’s decision making.

The Human Rights Act 1998 and the European Convention on Human Rights

The European Convention on Human Rights (ECHR) was incorporated into domestic law by the Human Rights Act 1998 (HRA 1998),

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