By Celia Kitzinger, 12th July 2021[1]
Update: This judgment has now been published BU, Re [2021] EWCOP 54 (24 September 2021)
This case before Mrs Justice Roberts, (COP 13503831 heard on 6th – 8th July 2021) concerns coercive control and a planned predatory marriage (or civil partnership).
Evidence from an expert psychologist appointed by the court, Professor Dubrow-Marshall, is that NC has formed a coercive and controlling relationship with BU, the protected person at the centre of the case.
In a counselling journal (pdf here), Professor Dubrow-Marshall has described controlling and coercive behaviour as involving (for example) “isolating a person from their friends and family”, “monitoring their time” and “taking control over aspects of their everyday life, such as where they can go, who they can see and when they can sleep.”
Controlling or coercive behaviour in an intimate or family relationship is an offence under s. 76 of the Serious Crime Act 2015. The Statutory Guidance Framework describes it like this:
There’s a useful podcast by LawPodUK concerned with the issue of domestic abuse and coercive and controlling behaviour in the Family Courts here.
Issues in this case
The applicant in this case is BU’s daughter (represented by Parishil Patel QC and Ian Brownhill). She is asking the court to:
- make a declaration under s. 15 MCA 2005 that her mother lacks capacity to make decisions as to her contact with others
- make an order under s.16 MCA 2005 preventing NC from having contact with her mother and
- make an order (under the inherent jurisdiction) that no marriage or civil partnership should be permitted between her mother and NC – or, alternatively, a forced marriage protection order in those terms.
The other parties are BU herself (represented by Bridget Dolan QC via her litigation friend, the Official Solicitor), NC (as a litigant in person), and the local authority (represented by Laura Twist).
The age of BU is protected by the revised reporting restrictions “other than to say she is over 60“ (See footnote 1 for an explanation of the strikethrough text.)
BU was 69 at the time of the hearing. At a previous hearing (in November 2020) a final declaration was made that she lacks capacity to make decisions about her property and financial affairs. A professional Deputy was appointed to manage her significant assets – the revised reporting restriction prevents me from reporting even “the approximate value of BU’s estate or its source“, estimated by the financial deputy at the time of her appointment to be around £1.3 million, including a fairly substantial inheritance she received following her mother’s death in 2019.
These earlier court hearings were prompted by some very serious concerns about the behaviour of NC who had moved into BU’s home a year or so earlier. In Spring 2020, the police became involved as a number of banks and building societies reported concerns in relation to activities on BU’s accounts. Some of BU’s funds are now missing and others have been used to buy items (which the revised reporting restrictions prevent me from describing) a boat, a caravan, a pick-up truck and a van, all purchased in her name but apparently used by NC in part in the course of his activities as a self-employed builder.
NC was arrested, interviewed under caution and released with bail conditions not to contact BU or enter the street on which she lives.
In the past, NC has been convicted of more than twenty offences, mostly relating to fraud and theft. His most recent conviction was in 2002 when he was sentenced to 9 years imprisonment.
BU has a life-long learning disability (not formally diagnosed) and recent arterial disease of the brain. This affects her decision-making capacity in many domains, including managing her finances, but all parties agree that she has the mental capacity to decide where to live, what care to receive and, most significantly, she has capacity to decide whether to marry or have a civil partnership.
NC states that he is in a romantic relationship with BU and that he wants to enter into a civil partnership with her.
BU is very angry about the interference in her life – by her family and by the courts.
Because of the bail conditions imposed by the criminal court against NC she has been separated from him for a year, and is “desperately sad and most likely depressed” at being prevented from seeing him. She is angry about her family’s attempts to separate her from NC, and said that her “world collapsed” when she was prevented from seeing him. She wants to get her life back – including managing her own finances, living with NC, and forming a civil partnership with him.
The judge heard from BU in private at the outset of the hearing.
Protection vs. Autonomy
The Official Solicitor has reserved her position on where BU’s best interests lie until the oral evidence has been heard. She wishes to emphasise “the importance of respecting the autonomy and self-determination of BU in so far as this is commensurate with the need to protect her and to safeguard her interests”[2].
The Official Solicitor acknowledges that the evidence overwhelmingly supports the view that NC is “a confidence trickster whose long-term lifestyle appears to have involved repeatedly inveigling money from vulnerable people through coercive control and, at least on three occasions, blackmail”. Nonetheless, she considers that BU’s views should be relayed as clearly as possible to the court and the emotional consequences of her wish to live with NC being overridden should be properly considered. There is also a possibility (raised by Professor Dubrow-Marshall ) that BU and NC could be educated and counselled to better appreciate the coercive influence and power dynamics in their relationship and recast their relationship with those elements removed.
It is particularly significant that BU has been assessed as having the capacity to marry or form a civil partnership: for a judge to prevent any such union under these circumstances would be a draconian move and a profound interference with BU’s Article 8 right to respect for family life and Article 12 right to marry. The Official Solicitor points out that this would be “a significant step that requires the most compelling of justifications to be considered proportionate and lawful”.
6th July 2021
On the first day of the hearing, Parishil Patel QC presented a very useful opening summary of the case.
A Consultant in Old Age Psychiatry gave evidence about BU’s cognitive functioning and confirmed that she lacks capacity to make her own decisions about her finances and about contact – but that she does have capacity to marry or to form a civil partnership.
Then Professor Dubrow-Marshall gave evidence about BU’s “total reliance and dedication” to NC, which he described as “a trauma bond”, or “trauma-coerced attachment”. He said, however, that there is “a genuine bond of love and affection between them” and suggested that NC was “less than fully aware of the effect of his behaviour – like the boisterous kid in the playground who doesn’t know his own strength“. According to this witness, NC is more “negligent” than acting “with malice aforethought” and “needs to be more reflective about his influence“. This analysis is disputed by BU’s daughter who believes that NC intends to coerce and control and unduly influence her mother.
There will be further evidence from Professor Dubrow-Marshall on 7th July 2021, and evidence from lay witnesses. The plan is for closing submissions on the morning of 8th July 2021. I understand that judgment is likely to be reserved.
7th July 2021
After some “kerfuffle” about the transparency order (more on this later), the court continued to hear from witnesses.
Expert psychologist
Professor Dubrow-Marshall (whose evidence in chief was given yesterday) was cross examined on his evidence that NC is coercively controlling and exerting undue influence on BU. He talked about the “unhealthily dependent nature of the relationship”, saying, “he is her entire world… she is psychologically entirely bound up with him”. This means that BU:
“… believes she’s making these decisions willingly but they are in reality part of the trauma-attachment and she cannot make authentic decisions independently of him. Her true wishes are impossible to distinguish from NC’s”.
Nonetheless, Professor Dubrow-Marshall reported that NC and BU have “a genuinely intimate relationship that does involve a very close bond”. His assessment is that “NC is not cognizant, largely, of his influence on BU”.
Professor Dubrow-Marshall reiterated his view that counselling and psycho-education should be attempted (with both NC and BU) to support them in an effort to rebuild their relationship, without the elements of coercion and control. He was not optimistic about the success of this endeavour, describing it as: “a task as herculean as demolishing and rebuilding a house brick by brick”.
He also recommended therapy should involve BU’s family. At this point BU could be seen onscreen vigorously indicating her rejection of this idea.
Finance Deputy
The next witness called was the Finance Deputy, who reported some financial issues concerning the timeline at which NC had become more closely involved with BU and said that she did not accept that NC’s undue influence and moving in with BU at the time when he did was “coincidental”.
BU’s daughter
BU’s daughter was asked about how she first became concerned about NU’s involvement in her mother’s life and talked about early financial concerns, and NU moving in to her mother’s house. Anxious about what was going on, she had looked on the internet for information about BU’s business and found a Facebook group with complaints from customers. This led her to speak to four other women who’d been “preyed upon” by NU. A google search uncovered an incident when NC “went into a bank with a fake explosive strapped to him, so I was able to find a newspaper article about that. I was very concerned to find this type of person was in my mum’s house”.
She made it abundantly clear that she (and her sister) had previously had a very close relationship with BU.
Counsel for the daughter, Parishil Patel, read out the report of the social worker:
“BU appears to have completely turned against her family. Relationships are being destroyed because BU does not understand that her family are trying to protect her but feel that they are trying to control her and ruin her life”.
Because NC was a litigant in person, he was able to cross-examine BU’s daughter – which was a very uncomfortable experience to watch. He seemed very calm, controlled and unemotional (and – to me – rather menacing). It was often hard to understand where his questions were headed. He seemed not to have any idea of how BU’s daughter had experienced his involvement in her mother’s life. Counsel for the daughter intervened at various points where his questions were inappropriate.
NC
Counsel for the daughter opened the questioning by asking NC whether he accepted Professor Dubrow-Marshall’s assessment that he was coercing and controlling BU and subjecting her to undue influence. He replied that there was “a lot to take in” and that he needed to “think about it”. When the judge intervened to push him on this, asking whether there was a possibility in his view that Professor Dubrow-Marshall may be right, he conceded that “the Professor may be right”.
However, he continued to maintain that BU was being controlled and coerced by her own family, who were trying to get control over her money.
Asked again about the issue of the coercive control he allegedly exerts over BU, he said: “It’s a catch 22. If I accept coercive control it’s a first step forward to seeing BU again, but I don’t accept that I am doing that”. The judge said, “I am going to treat that as a retraction of your earlier evidence”.
He denied allegations of wrong-doing in relation to other women – including those contacted by BU’s daughter, saying that this was “a collective accusation and a false accusation”.
Patel: Are you saying that all these complaints were coordinated and
there was a sort of conspiracy to get you?
NC: Oh god, yes.
Patel: Oh you are?
NC: Yes.
He projected (from my perspective) an impression of someone who felt aggrieved and misunderstood – a victim of conspiracy. It was hard to know whether or not he actually believes this.
He acknowledged that he had breached the court order (and the police bail conditions) on multiple occasions by contacting BU. He also confirmed that he intended in the future to marry or to form a civil partnership with her.
8th July 2021
On this final day of the hearing, all four parties (BU’s daughter, NC, the local authority and the Official Solicitor) presented closing submissions.
Counsel for BU’s daughter (Parishil Patel QC)
Speaking for BU’s daughter, Parishil Patel QC said that she had brought the proceedings to prevent the continuing exploitation and manipulation of her mother. He invited the court to find, on the balance of probability, that NC was deliberately coercing and controlling BU and unduly influencing her.
“There’s a plethora of evidence” said Parishil Patel, “that NC is a man who, over a number of years, has shown a particular modus operandi in which he befriends vulnerable people, gains their trust, and then exploits them financially”.
He described NC’s evidence as the “wholly incredible” and “evasive” evidence of “a fantasist”.
“The overall tenor of his evidence was that there was a conspiracy by a number of very disparate people, all of whom had got together, all of whom, on his evidence, were lying, with a common goal to discredit him. But rather than this being evidence of a conspiracy, our submission is that this was evidence of his modus operandi of targeting vulnerable people.”
Following the evidence from the Consultant in Old Age Psychiatry (who gave oral evidence in court on 7th July 2021), BU’s daughter asks for a final declaration that NC lacks capacity to make decisions as to contact with others. This position had been previously accepted by the Official Solicitor, the local authority and BU’s daughter, but not by NC – who has now had the opportunity to cross-examine the Consultant.
It’s very clear from the attendance note (when the judge met privately with BU) that BU does want to have contact with NC, but this (said Parishil Patel) accords with evidence from Professor Dubrow-Marshall that “her wishes cannot be disentangled from his – that her being has been subsumed entirely into his”. He said that the court:
“… should place very little weight on BU’s present wishes as they don’t accord with her past wishes which, in accordance with s.4 of the Mental Capacity Act the court has to take into account. The evidence of BU’s daughter is that her mother wouldn’t even countenance someone who got themselves into trouble, let alone someone with the criminal history NC has. Nor would she voluntarily get herself into a position where she lost contact with her two daughters…”
The injunction against NC’s contact with BU should stay in place. However, bearing in mind the “casual way in which NC breached that order on 40 occasions between July and August last year” it is apparent that he is “quite unable to see the seriousness of breaching the order”. There is a risk that NC will breach it again, and either marry or enter into a civil partnership with BU. This could be prevented either under the inherent jurisdiction or via a forced marriage protection order. BU’s daughter asks for an order to prevent marriage and civil partnership with BU under section 63A of the Family Law Act 1996.
NC (litigant in person)
As he has been over the last two days of this hearing, NC was an articulate and fluent speaker who had clearly prepared carefully for what he wanted the court to hear. He said some “key words” had been mentioned in Professor Dubrow-Marshall’s evidence.
“The professor said that BU was lost in a totalisation state – that she’d been taken over by me”. He read out some dictionary definitions of “totalitarian”, including this one from dictionary.com
“These words were being used as a description of BU’s position”, he said. The judge intervened: “I think rather more-“ and NC interrupted to complete her sentence: “… of my behaviour”.
“This is not the case at all”, said NC. “BU has always and with some degree of certainty exercised her own will”. He went on to describe how he has “facilitated” BU’s decisions, but “BU has been the first to decide and the last to decide on all the decisions to be made. I just helped her.” He said that the couple had been “tested through the time of adversity and though we are hurt we are not fallen”.
The words “trauma-bond” (also used repeatedly in Professor Dubrow-Marshall’s evidence) is “definitely not the case in my life with BU”.
Judge: So you don’t recognise the Professor’s description?
NC: I recognise the description, but it’s not happening in our lives.
His explanation as to why BU was not answering questions about why she wanted to spend time with him was that she was protecting her privacy.
NC: She’s an extremely private individual with regards to her health, her finances, her home, her relationships and her family. And because of the arrest, and the investigations into her finances, her health and her mental well-being, all the facets of her personality and home life are being forensically scrutinised. She’s purposely not going into depth describing our relationship – which she’s perfectly able to – because that is the last bastion that is hers, that is private. She’s purposely not answering questions because it’s special to her, and she’s protective of that.
Judge: And you say that’s the reason for the superficiality of her answers.
NC: Yes. She’s protecting something private and personal.
He ended by offering a public apology to BU. He said he was sorry that her involvement with him (“my personality and my offending history”) had resulted in this invasion of her privacy: “I’m sorry your house got raided by the police. I’m sorry everyone is saying you don’t know your own mind”
The local authority (Laura Twist)
The local authority reiterated that they had “limited involvement” in this case. They “understand the concerns and think appointment of the Deputy and the bail conditions mean that any risks are sufficiently mitigated”. They have no objections to an order that BU lacks capacity to make decisions about contact, but will not supervise contact if it is ordered. They characterised their position as “neutral”.
The Official Solicitor (Bridget Dolan QC)
The Official Solicitor is charged with representing the protected party’s best interests – as distinct from what that person states they want. Bridget Dolan QC said that she “does recognise BU’s deeply held wishes and the affection she professes to feel for NC and he for her”. But:
… whatever his motives, and whether he intends this or not, there is coercive control and unhealthy dependency in which he’s substituting his mind for hers – and the court should not allow this to continue. No persons should be so controlled. BU should be given the opportunity to regain and exercise her own autonomy.”
The Official Solicitor did not support contact:
“The risk she is entitled to protection from is not only financial exploitation but also totalising control, and estrangement from her loving and supportive family. We accept that can only be achieved by separation from NC. We accept the recommendation for person-centred existential psychotherapy and education to assist her in coming to terms with the loss of the relationship, or to reset their relationship to one which does not involve extreme coercion of her by him.”
Stating that “NC showed complete contempt for the civil injunction and bail conditions” and that he shows “clear distain for the authority of the court”, the Official Solicitor was not satisfied that a civil injunction alone was sufficient to prevent NC from meeting with BU and forming a civil partnership with her. On those grounds, a Forced Marriage Protection Order (FMPO) should be considered. The Official Solicitor acknowledged that “this is obviously a very significant step to take in respect of somebody who has capacity to marry and expresses the wish to do so” and said that a FMPO can “only be used when a person’s will is being overborne by another person such that it destroys their consent”.
She referred to Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190) as an authority that a FMPO can be made when a person does in fact have capacity to consent to marriage and also to that that it was ‘unlikely in all but the most serious and clear cases’that an indefinite order would be appropriate (paras. 27 and 77). In fact, the applicant in today’s case was requesting a FMPO for one year and the Official Solicitor supported that as appropriate.
Finally, the judge said:
“I appreciate the need for a resolution of these matters for BU, for her wider family, and for NC. The issues involved here, and the gravity of the consequences for all parties but especially BU, are such that it would be wrong for me to give my decision without the reasons for it. I will endeavour to produce a formal written judgment before the long vacation.”
This means there may be a published judgment by 30th July (although it may be later than this). We will post a link to the judgment as soon as we know about it.
Update: The judgment
In her judgment, published on 24th September 2021, Mrs Justice Roberts reflects on the difficulty of making a decision that will prevent BU from seeing the man she believes offers her companionship and happiness and without whom she sees an “empty” and “bleak” future.
Nonetheless, she concludes that BU lacks capacity to make decisions about contact with NC because of the “corrosive and coercive nature of the control” he has exercised over her. She describes NC as “arrogant and narcissistic”. He has, finds Roberts J, “engaged on a deliberate and calculated attempt to subvert any independent decision-making on BU’s part”. The judge finds that “BU has indeed been manipulated by NC with deliberate intent to secure for himself a financial benefit.” She says: I am wholly persuaded by the evidence that he saw BU’s wealth as the means by which he could achieve not only financial stability for himself during her lifetime but also financial benefit after her death.“
She concludes:
“I am in no doubt at all that it is not in her best interests to be exposed to further risk of financial abuse and/or the risk of future manipulation by NC through the control he has exerted through his behaviour to date.“
Mrs Justice Roberts made a final order providing that there will be no contact between NC and BU, with a penal notice attached, because C “must be quite clear that any breach or attempted breach of that order may expose him to severe consequences if he is found to be in contempt of court and that may include a period of imprisonment“. Because NC has previously breached clear mandatory injunctions from the court, the judge also made a Forced Marriage Protection order and an injunction to prevent NC from entering into a civil partnership with BU without first obtaining permission from the court.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
[1] I originally posted this blog at 7.30am on 7th July 2021. I removed it from the site at around 9.30am when Bridget Dolan QC (who I had alerted to the blog post) informed me that I was in breach of a Transparency Order I hadn’t been sent. She then sent it to me and I revised the blog post to comply with the order she had sent me. However, when I logged on to the hearing at around 10.30am that morning, Bridget Dolan QC was making an application to the judge for an amended, more restrictive, Transparency Order that would make it an offence to report some of the information included in the blog post that I had revised to comply with the Order she had already sent me. The new restrictions in the amended Transparency Order related to the age of the woman at the centre of the case, the value and source of her assets, and also prohibited “any description of the vehicles” bought by her partner. Despite some apparent disquiet, the judge did approve this amended more restrictive Transparency Order on an interim basis, saying that she would hear submissions concerning the Transparency Order at the end of the substantive business of the hearing. I then re-revised my blog post and re-posted it later the same day with revisions as required by amended (and in my view, retrospective) reporting restrictions approved by the Court. I subsequently consulted with journalists Louise Tickle and Brian Farmer about what had happened and submitted a written statement to the Court, and then negotiated with counsel during the lunch break on the last day to arrive at an agreed solution which Bridget Dolan presented to the judge. The judge subsequently approved a less restrictive Transparency Order – in effect, removing the ‘retrospective’ restrictions. Rather than simply delete the version of this blog that was required by the amended (‘retrospective’, more restrictive) Transparency Order, I have used strikethrough text (like this) to show its effect. A forthcoming blog will discuss my concern that a retrospective Transparency Orders should have been entertained by the court. Note that the issue of reporting restrictions in this case is also covered in the judgment (paras. 108-110).
[2] We are not allowed to audio-record hearings, so quotations from the hearing are as accurate and I could make them but are taken from typed notes made during the hearing and are unlikely to be verbatim.
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