By Anonymous, 7th June 2021
Editorial note (Celia Kitzinger): It is a great privilege, as co-director of the Open Justice Court of Protection Project, to find that families caught up in the Court of Protection sometimes contact us – asking whether we can arrange for someone to observe an upcoming hearing, or simply wanting to make sure their story is heard. This blog is written by a mother who was in touch after I observed (a small part of) a hearing at which she was a litigant in person. In conversation, I asked how the experience of being a litigant in person compared with a previous hearing, seven months earlier (November 2020) when she’d had legal representation. She told me she had already written an account of that experience shortly after the earlier hearing. She’d circulated it among her friends, but not sent it to lawyers or to the judge. When I read it, I was very troubled by how alienated she felt from the whole hearing, and how – despite having legal representation – she had understood very little about what was going on. I asked for permission to publish it (lightly edited to maintain confidentiality in line with the requirements of the transparency order, and with a new opening paragraph) because her account bears witness to some of the challenges the court poses for families of protected parties. The subsequent hearing, in May 2021, was a hybrid hearing at which there were several public observers, including Katharine Shipley who wrote a blog about it, including what this mother told me about her experience of that later hearing.
This is a factual account of my experience of the Court of Protection in November 2020 as it was for me. Being involved in court is very strange – nothing like this has happened before. I gave up work when I had my children but I trained as a nursery nurse and worked in a children’s home for a time.
I have written this anonymously because I have a transparency order saying I cannot write under my name – although I have no secrets and nothing to hide, and my daughter is unaware and cannot be hurt by publicity. I would prefer to use my own name, and my daughter’s name, but I cannot. To learn that a ‘transparency order’ actually means enforced lack of transparency is preposterous.
It was the second hearing about my daughter, Lillian (not her real name) who has profound learning disabilities. She was taken into temporary respite care in 2017 when I had to be admitted to hospital, but has not been allowed to return home – for nearly three years at the time of this hearing. So I applied to the Court of Protection to try to get her back home.
The first hearing was in 2019. On that occasion I sat alone all day with my solicitor in a waiting area. The lady barrister I had then kept coming back and forth across a crowded area to see me. Then we were shown into court for about 10-15 minutes or so in the afternoon and my barrister stood up and gave a few people’s names – after which we all left the court and went home. There was a group of strangers in court who I did not know. I did not understand what was happening then, and I do not understand what was happening at the next hearing, a year later (or why there had to be two hearings).
The November 2020 hearing was supposed to be over three-days, but only the first day happened. I found the whole experience to be very unsettling. I am deliberately not making criticism or expressing opinions about what happened, as I have never been to court before they took Lillian, and so have nothing to compare it with. Was my experience unusual? I don’t know.
I did rather feel that I was an onlooker at someone else’s social event – but maybe that it always how it is.
Meeting my legal aid barrister
I was asked to arrive in the court building for 10.00am to meet the barrister who was representing me. We had once spoken by telephone some months ago and he was a different barrister from the one in 2019. My original solicitor had left the practice and was replaced by another who did not attend the court.
I arrived at 9.30 and was shown to a waiting area. He came straight to me when he arrived, and we went to a side room with a large window and light blinds for some privacy. He shut the door for the same reason. We agreed to take off our masks and sit at distant ends of a long table. The barrister was actually extremely pleasant to me and seemed to be very supportive of me. He asked me some questions he wished to clarify about Lillian.
Other people were coming and going outside the window all day long and soon there was a tap on the door, he stood up to open it, put his mask on, and spoke to them. Some people went into the adjoining room beside us. They were part of our court hearing. We continued to talk about the issues concerning Lillian and more interruptions followed. Every time he had to grab and use his mask, stand up and open the door. Sometimes he went out into the waiting area to talk.
Gradually he was gone for longer periods and was out of sight of the window. One time he came back and said he had met the judge and was very impressed by his attitude to our case. I had the impression there had been a meeting of several of them.
Two ladies came to the door to see me one time when he returned and he told me they were acting for Lillian.
My barrister started to give me advice about issues to do with the court case and the way he felt the judge would be thinking. He was persuading me to accept certain matters in order to make progress. I believe he was spending time in the adjoining room with Lillian’s legal team, and he was telling me that they were willing to be accommodating. At one point he was telling me how greatly impressed he was with the judge and the way the judge was thinking. I am not sure exactly when that was as the barrister was leaping up, down and leaving so often. I just sat there.
At one point he said we were due in court at 1.00pm.
Nearing 1.00pm he said that he was desperate for a sandwich as he had been up since 6.00am and asked if he could get me anything. I said no thank you and he dashed off. I have no idea where he had to go for that. Not seeing the sandwich being eaten I don’t know if he ever got one; but I became aware that he might be in the room next door with the other legal team. It was well after 1.00pm when he came back to talk to me. Then another call at the door and this time he seemed to be called urgently and rushed off.
He was gone for quite a while and when he came back, he was telling me the judge wanted to make plans about me visiting Lillian and arrangements were being made between everybody, and there would be another hearing.
I asked when we would be going into court and he told me that it had happened and was all over. I was shocked.
He then asked if I wanted to talk to the care manager of my daughter’s care home. I don’t know what she was doing there or what she was doing in court. I did not, but I said yes. She very smoothly talked at length about my concerns and how they wanted to deal with my concerns and how they understood my concerns. No mention of Lillian. I stayed silent. I don’t need to be told about my concerns. When she stopped, she asked me ‘did I have any thoughts?’ I just looked at her. As she waited, I said ‘I am here for a court hearing, not for having any thoughts.’ Then I told her that she needed to sort out Lillian’s spectacles and her long delayed blood test. I told her I expect those two demands should be met. Then she left the room.
Towards 4.00pm my barrister asked me if I would like to go home. Surprised I said that surely, I was expected to stay all the time? He told me they were waiting for ‘the court’ to tell what would happen tomorrow and they were preparing documents. I asked what he meant about tomorrow. He said that the court case was all over and I may not have to attend the next day. On that day one of my care assistants was meant to attend the court and had been in contact with the solicitor. I asked what about her and he said that she probably would not be required. I was stunned and said I must text her right away because she had taken a day’s leave to attend and would be preparing. I did so in front of him.
He spent some more time in the other room then came to tell me all was finished; I would not be attending the next day and they were waiting for a document and then some printing. He started to pack his bag, showed me the confusing way out of the building and then ran to get his train.
I had sat on that chair from 10.30am until 4.30pm and had not even stood up in that time!
I don’t understand what was decided at the hearing. I did not get anything like a bit of paper saying “This is what was decided at your court hearing”. I don’t understand why there is another hearing planned for next year. Throughout these months between now and the next hearing my belief is that Lillian is not being given the care that she needs and is not being protected. I just want my daughter to come home.
Concluding Note (Celia Kitzinger)
After reading this account of the earlier hearing, I looked through the court documents to which I’d been given access (as an observer at the May 2021 hearing) to see if I could learn more about what happened. I discovered an account in the Position Statement provided by the CCG for the hearing on 10-12 May 2021. Lillian’s mother had also been provided with this Position Statement as part of the whole court Bundle which she was sent as a litigant in person – but of course this constitutes an overwhelming amount of paperwork in complex legal language. Here’s what it says:
The Official Solicitor’s statement for the May 2021 hearing adds the following concerning the November 2020 hearing:
I have shared this account of what happened that day with Lillian’s mother. She wrote back:
“The barrister did tell me the general idea that the judge presumed that visits to my daughter by me would be automatically of value. But that was when I presumed we had not yet been ‘in court,’ and I would be able to answer and explain to the judge why such theories may not apply to her. Even then the barrister was also bouncing between the rooms and the other lawyers etc. so there was no real conversation. And that still ignores the basic fact that decisions were being made by outsiders without listening to and questioning me as Lillian’s mother.”
It is easy, in my experience for lawyers to over-estimate how much members of the public understand of what is happening in court about matters that intimately concern them and their families. The language and processes are part of lawyers’ everyday work but alien to the rest of us – and can be especially hard to make sense of when we are anxious and under stress.
To find out what happened at the third and final hearing, read the blog post by Katharine Shipley.