By Daniel Cloake, 19 January 2021
As a follower of the Open Justice Court of Protection Project on Twitter I took advantage of their daily publication of upcoming Court of Protection hearings and e-mailed in my request to observe this case.
Before MR JUSTICE COHEN
Sitting as a Judge of the Court of Protection
Monday, 11 January, 2021
At 02:00 PM
FOR HEARING IN OPEN COURT
COP 13677853 Re ‘P’ MS Teams Hearing
A previous hearing in this matter, held some 11 days earlier, had been observed and blogged about by Kristy Regan, a Senior Lecturer in Social Work at the University of Sunderland. Her well-written write-up entitled “A mother abroad and a family dispute”provided some useful background to the case and for continuity I intend to use the same aliases as she did for the parties.
Ms Sarah Haren, the barrister representing applicant Louise, helpfully summed up the background to this dispute at the beginning of the hearing. She told the court that in September 2020 Louise’s mum, who I shall call Ms P, was taken “in a surreptitious way” and with “no prior notice” from England to a European country by Ms P’s other daughter ‘Kim’ where they still remain.
Ms Haren explained that “within weeks of arriving in [Country] Ms P’s property was placed on the market” by Kim, under power vested by a Lasting Power of Attorney over Ms P. This led to Louise feeling “deeply concerned”.
We were then told that in November 2020 Louise issued an application for the return of Ms P back to the UK as “plainly she was a vulnerable adult”. Ms Haren further submitted that whilst there was “some evidence” Ms P lacked capacity there “was no expert evidence” and requested this be ordered as part of today’s directions hearing.
The judge asked Ms Haren what she considered the effect was of a “curious document” which purported to be a “professional witness report” written by Dr A and supplied by Kim. Ms Haren replied that she had only received the document that morning and had concerns about the admissibility of it. She submitted that the document should “carry little to no weight” and in any event “doesn’t avoid the need for a court appointed assessment of capacity”. Citing provisions within Section 15 of the Court of Protection Rules 2007 Ms Haren detailed their objections as follows:
- No record of a letter of instruction, No purpose of assessment
- All information came solely from Kim
- No record of what Dr A was told
- Nothing to record the experts understanding that the report was for court, or knowledge of his duty to the court
- No reference to medical or social services records
- No statement or record of tests used to determine her capacity or the result of those tests
- No record of questions asked or the form they took, eg open or closed
- No record of when or how long the assessment lasted
- No record of Ms P’s appearance during the assessment
- No consideration of Ms P’s vulnerability from influence; nor her capacity to litigate, or capacity to grant or revoke Kim’s Power of Attorney or to manage property or affairs
- Concern over Kim’s presence throughout the meeting
- And no indication that Dr A understood the context of these proceedings, ie a contentious hearing between sisters over welfare.
Stating that the “comments made on Dr A’s report are plainly valid” the Judge said he needed a proper assessment of Ms P.
In response to a question from Mr Justice Cohen as to the proposed way forward, given that travel between England and Europe is heavily restricted due to Covid, Ms Haren suggested that the assessment may have to be remote. In dealing with the accompaniment of Ms P by Kim it was advocated that the conduct of the assessment could be determined by the expert.
The court then considered the question of contact between Louise and her mother as it is understood none has taken place since the mother moved abroad some 5 months prior. A summery by the judge that it was “extraordinary they weren’t having daily communications” led to the following exchange taking place:
Judge: the idea these two should be locked into what may be very expensive and prolonged litigation is unfortunate … We have to find a constructive way forward through this. I don’t want to go into who’s right or wrong about it. Is there any reason why Louise shouldn’t speak to her mum a couple times a week? Just like the way we’re communicating with you now?
Kim: Mum hasn’t wanted to
Judge: At the very least she should have the opportunity
Kim: She doesn’t want to until this is resolved
Judge: But your report says she doesn’t want to lose contact.
Kim: Louise lives 15 minutes from [an airport], they can come here
Judge: Well if you leave things until they are resolved, I’d be surprised if that’s what your mother wanted. I hope you can enter mediation. An awful lot of suspicion would be alleviated if Louise has the opportunity to speak to her mother. Having expensive and emotional litigation is not the best way to reach a constructive conclusion.
Kim: We agree, this is not the road
Judge: Do you agree you should appoint a mediator?
* A few moment hesitation
This was surprising as Ms Haren had already told the court that her client had requested mediation, but the offer had been rejected by Kim. After some discussion, the parties agreed that the mediator should be based in England, rather than trying to find an English-speaking mediator local to Ms P. The judge suggested to Ms Haren that her client should “pick two or three mediators who would be able to start work reasonable quickly and who can be provided with the minimum of documents. A brief and neutral summery can be prepared for them. I do not want a ‘he says she says’”
Turning back to the issue of contact the Judge told Kim that “I expect you to facilitate your mother speaking to your sister twice a week” with the court ruling that communications should take place at 5pm on Wednesdays and Sundays unless otherwise agreed.
Mr Justice Cohen directed that he wanted a report from Ms P’s social worker and her GP and these would be paid at joint expense of the parties. They should report on Ms P’s capacity to deal with various issues arising out of the litigation, her vulnerability, an opinion on where she should live and their recent dealings with her prior to departure.
The Judge also said “Consideration will have to be given at the next hearing for representation of the mother. In the event of the capacity assessment suggesting that Ms P either lacks capacity or is a vulnerable person the parties must liaise with the Official Solicitor as to her representation“.
Responding to a request the judge replied that he was “not prepared to order that medical reports should be provided to the daughters” adding it was “wholly inappropriate … before I know whether she has capacity”.
It was at this point Kim became emotional saying “I’m delivering care to mum, and I can see what’s happening to her. I’m going to have to tell her about this”. The judge replied: “you’ve got yourself into this situation with horns being locked”. Upon realising that with the choosing of experts and report preparation etc the matter might not come before a judge until March, Kim added “what about mum, it’s her house and her decision. Where are we?”. The judge replied:
“The answer is you’re nowhere at the moment. Two sisters are at daggers drawn as to which country she should be living in. How can I decide? She might be being taken advantage of. We need to get the evidence in … I’m not making a finding on evidence that doesn’t currently exists..”
To provide a glimpse into what I’m sure is a complicated back story Kim stated it was a “misconception that this is a fight between sisters, we have to look at facts and the criminal investigation into fraud with late father”… “we have seen the film, she was filmed, she was filmed!”.
Well, do we have a daughter protecting her mother from the fraudulent activities of a sister or a daughter weaponizing her mother as ammunition to get revenge? Thankfully not a question I have to answer.
I am reminded of a section of text in barrister Sarah Langford’s excellent book “In your defence” discussing the unsatisfying conclusion of most divorce proceedings:
“My job has taught me to understand the power of the judgment; how a compromise will not grant the vindication that drives some people to court… It is not over until they realise that no one – not me, nor the judge, nor the law – is able to give them the release they so long for.”
It is difficult to see how any one party could ever win in a case like this, sadly I fear that whatever happens only losers will remain, albeit losers with a lot less money. I hope that mediation works out and both daughters get to spend quality time with their mother, time after all is precious and irreplaceable.
Hopefully, the parties will have some positive news to report to the court, on the first available date after 22nd Feb.
Daniel Cloake is a blogger and news gatherer with a keen interest in law and the justice system. This blog post was originally published on his own site, “The Mouse in the Courtroom” (where you can read his many other blog posts) here. He tweets @MouseInTheCourt