By Kristy Regan, 11th January 2021
At the third attempt, after a couple of false starts (a case made private at the last minute and an email request not replied to), I gained access to my first Court of Protection hearing: COP 13677853. This was a case at the Royal Courts of Justice before Mr Justice Peel and it took place on 31st December 2020. I emailed the RCJ the night before and had a response at 10.15am for a 10.30am start. My advice to anyone would be to sit by your email with everything ready to go!
It felt like an awkward start. I joined Teams and found a number of people there sitting in silence, and others without cameras on. Being mindful of the advice given on the Open Justice Court of Protection Project page here, I had my camera on initially and when the case started I turned it off. Being more used to Teams calls which have small talk, the silence while we waited for the judge was palpable and I found it quite uncomfortable. It was also difficult not knowing who everyone was. A bit like a ‘guess the barrister’ situation.
When the judge joined, I found it surprising that there were no real introductions: people said their names but I found it difficult to catch their roles in the proceedings. The judge, having had the papers, would have known who everyone was, but as an observer it was difficult to tell. It soon became clear that two of the participants on Teams were the applicant and respondent in the case. The applicant was represented by Sarah Haren and the respondent was unrepresented (a litigant in person). Another barrister (Jeremy Abraham) was present: I googled him and found he is a member of the Office of the Public Guardian’s Deputy Panel, which would make him relevant to this case, but his role was unclear and he didn’t participate in the proceedings. I believe P was not represented.
Sarah Haren helpfully provided a brief synopsis of the background to the application.
The case concerned P, an 80+ year old “widow” (exact age removed to ensure confidentiality), and her two daughters were applicant (“Louise”) and respondent (“Kim”) – both present via video-link. P has completed the Lasting Power of Attorney documentation to make Kim her attorney (finance and property I, assumed).
P is currently residing in a European country at an unknown address with Kim. She was “taken” abroad by Kim on 1stSeptember 2020. The application before the Court was for an order to return P home to England, to preserve P’s property until her capacity to make her own financial decisions is determined, and to suspend the powers under the LPA.
Today’s proceedings were brought under s.48 of the MCA since there was no determination of P’s capacity before the court. (The possibility of invoking the inherent jurisdiction was also mentioned.) S.48 concerns “Interim orders and directions” and reads as follows:
Interim orders and directions
The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—
(a) there is reason to believe that P lacks capacity in relation to the matter,
(b) the matter is one to which its powers under this Act extend, and
(c) it is in P’s best interests to make the order, or give the directions, without delay.
Mr. Justice Peel was clear from the outset that it would not be possible to make all of the declarations requested today. Kim expressed her concern that she had received very short notice for the case today and was using Teams via her mobile phone. She was also unrepresented and advised she was unable to seek legal advice until the week beginning 4th January 2021 at the earliest.
Mr. Justice Peel advised that he was concentrating on the issue immediately to hand, which was the sale of the property, as it was reported that an offer had been accepted by Kim.
At this point the judge directly questioned Kim, asking her whether the property was on the market, to which she replied it was. Kim then started referencing a safeguarding investigation by a Local Authority in England, a video (of what it was not clear) and police investigations. The allegations under safeguarding were not clear, though appeared to relate to financial abuse. Kim went on to say that her mother’s Social Worker (who she repeatedly named to the Court) knew about the plans to move and was satisfied that P had mental capacity. Kim was keen to emphasise that she was the primary caregiver and that P is well looked after.
The judge brought Kim back to his original question about the property. She confirmed the property was put on the market “around October 2020” and an offer had been accepted. The judge asked whether there was a completion date. At this point Kim became very non-committal and said she was unsure but felt it would take until at least Spring.
The judge also asked whether Kim was exercising her role as attorney for the LPA in the house sale. Kim kept saying that it was P’s capacitous decision and she was not using the LPA. She did say, however, that she had dealt with all the calls and paperwork for the house sale.
It was clear that neither Louise (P’s other daughter) nor Louise’s legal representative knew where P was living. The judge asked Kim for the address and contact details of P. Kim had to give these in Court. The judge asked how contact could be made with P. Kim advised she could only be contacted via her (Kim’s) email or her daughter’s mobile number. She then said that P is hard of hearing and struggles to use a phone. There was very little reference made to P’s medical conditions. Kim was adamant that she has mental capacity and said that all of the medical professionals supporting her currently agree with her on this. Later on, she did however, mention that P has a “mild cognitive impairment”.
The judge was very clear that declarations on the issues around P’s capacity and the LPA could not be determined today. The judge agreed part of the order, namely to preserve the property until at least the next hearing. He kept emphasising that the aim was to preserve the “status quo” while further directions are considered.
A directions hearing has been scheduled for 11th January 2021. The judge advised Kim to engage legal advice before this hearing. She said this was very short notice and it would distract from her caring role. The judge was firm that she needs to do nothing except get legal representation and that the evidence required will be outlined at the next hearing. He stated this would include Kim’s evidence and a capacity assessment of P.
It was an unusual experience and felt quite voyeuristic in one sense, especially as it involved private individuals, who were present, rather than professional bodies, such as local authorities or clinical commissioning groups. Teams is also an unusual medium for such formal proceedings. Many of us are getting used to Teams for daily work, and it is a testament to the Courts that they are also enabling this way of working in order to keep everyone as safe as possible during Covid restrictions. It has also allowed greater access to individuals based all around the country, to view proceedings. As someone based in the North East, it would have been extremely unlikely for me to access the Royal Courts of Justice otherwise.
Having worked in adult safeguarding for 8 years, I felt myself going back to that role, in the respect of the experiences I have had over the years of dealing with family disputes. Family disputes are always a difficult dynamic to work with and listening to Kim, I felt she was quite evasive. The way she starting bringing other issues into the Court, and not answering direct questions, was a technique I have witnessed over the years when people are trying to deflect from the matter in hand. I felt the judge was skilful at bringing her back on point, but feel this was due to his position. I can imagine that others who have worked with the family would not have been so successful.
I found myself empathising with Louise, who sat through the case and said nothing, especially as she did not know where her mother was living. As an observer with a limited amount of information, I was also conscious that I was only seeing part of the situation and that there will be many viewpoints on what has happened. The situation and facts are likely to be discussed throughout the proceedings in Court, therefore it is important to keep an open mind.
The situation with current family contact was one of the main areas, which stuck with me when the session had ended. At one point Kim said they had been doing video calls with family in England, but that P “entered the password wrongly too many times and locked the tablet”. From this, I surmised that contact between P and the rest of the family was no longer being facilitated – a family estrangement, which is sad all round and which no amount of Court action will likely remedy.
Kristy Regan is Senior Lecturer in Social Work at the University of Sunderland who previously worked in Adult Safeguarding for 8 years, as a Senior Social Worker then Team Manager. She is also a COP Visitor. She tweets @kristyregan13