By Kristy Regan, 6th January 2022
This long-running case (COP 13677853) concerns Mrs P, an 80+ year old widow who’s been living in a European country at an unknown address with one of her daughters, “Kim” (all names are pseudonyms), a litigant in person.
The applicant is Mrs P’s other daughter, “Louise” (represented by Sarah Haren of 5 Stone Buildings).
According to counsel for Louise, Kim had taken Mrs P “in a surreptitious way” and with “no prior notice” from England to a European country where they remained at the point of the first hearing, and “within weeks of arriving in [Country] Mrs P’s property was placed on the market” by Kim, under power vested by a Lasting Power of Attorney for property and finance over Mrs P. This led to Louise feeling “deeply concerned”.
Louise had made an application to the Court for an order to return Mrs P home to England, to preserve her property until her capacity to make her own financial decisions is determined, and to suspend the powers under the LPA.
I’d watched this case back on 31st December 2020 before Mr Justice Peel and blogged about it here. At that hearing, Kim reported that her mother’s house had been put on the market and an offer had been accepted – she said by Mrs P, although she herself had dealt with all the calls and paperwork for the house sale.
It was unclear whether or not Mrs P had capacity to manage her own affairs. The judge did not make any declarations about her capacity or the LPA but 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 subsequent hearing (on 11th January 2021) was blogged by Daniel Cloake here. At that hearing (before Mr Justice Cohen), Kim had supplied a “curious document” purporting to assess her mother’s capacity to make her own decisions about her property and affairs. This did not, said the judge, avoid the need for a court-appointed assessment of capacity, and he made an order for this to be carried out by Mrs P’s social worker and GP. The judge also made orders for Louise and her mother to have contact twice a week. There was also some indication that the parties might agree to mediation.
The hearing I observed and am reporting on here was on 23rd November 2021, nearly a year after I first observed a hearing in this case.
I gained access to the 10am hearing at 9.58am. It was a strange experience as there was only myself and a court official there, and I was asked which parties were attending! It was certainly not what I was expecting and quite perturbing. I waited with camera and microphone off for a good half an hour before people started to arrive. The judge’s clerk when naming participants also directly introduced me as a public observer and checked that people knew I was there. This was a departure from my last observation, where I was totally ignored, and it definitely added to the sense of voyeurism. In my notes I have written “awful, tempted to press leave meeting”.
The case today was being heard by Mrs. Justice Theis and there was a helpful round of introductions. I have again used the pseudonyms Louise and Kim, for the applicant and respondent. The only people who were invited to leave their cameras on were Mrs. Justice Theis, Sarah Haren QC (representing the applicant Louise), Ruth Hughes (representing Ms P via the Official Solicitor (OS)), and Kim (who was again a litigant in person).
At the start of today’s proceedings, which turned out to be a pre-trial review, Ms Haren helpfully provided an introduction and update, which included reference to the transparency order (I haven’t seen a copy of this).
From this introduction it was clear that events have moved on considerably.
Mrs P has been living back in England with Louise since September 2021. She has been visited by an agent for the Official Solicitor and is receiving medical treatment for her health conditions. A professional deputy has been appointed to manage Mrs P’s property and affairs.
I have absolutely no idea how Mrs P came to return to England, and at a few different points in today’s proceedings there was opaque references to not “raising the temperature”1 and “not wishing to cause upset”. My take on this was that none of the parties wished to go over the matter of how Mrs P came to return to England again, to avoid causing emotions to rise in the room.
The hearing today was referred to as a pre-trial review. The website www.justice.gov.uk describes a pre-trial review as being held if:
“the case is complex or the trial is expected to be lengthy. The aim is to make sure the trial will proceed efficiently, particular areas of dispute being identified and narrowed down as far as possible.”
The aim of today appeared to be to plan the final hearing which would determine where Ms P should live long term – unless she is found to have capacity to make this decision herself. All parties appeared to agree that it was unlikely she does have capacity for this, but a number of reports are awaited; one from Mrs P’s doctor, one from independent expert Dr Chris Danbury, and one from an Independent Social Worker (ISW).
Kim, again acting as a litigant in person, submitted a letter yesterday to the Judge which was referenced in the proceedings. I gleaned from the discussion that this document referenced financial abuse and historic concerns, and also named individuals who Kim wants to call as witnesses in the hearing.
All parties were asked by Mrs. Justice Theis to agree on the focus of the hearing. This was agreed by counsel for Louise and for Mrs P to concern whether it is in Mrs P’s best interests to live in England or abroad with Kim, and arrangements for contact (presuming Mrs P lacks capacity). Kim also agreed with this focus but said she wants the case to be presented “fairly” and with the opportunity for witnesses to be heard.
From an observer perspective, the issue of witnesses seemed to be the area causing the parties to feel that the case may not proceed efficiently. Mrs. Justice Theis said that a lot of the witness statements appear “historical and not relevant to the current situation” and that the Court needs to deal with the current evidence. She suggested the parties produce a list of witnesses after the reports are completed, and if there is a dispute about this then she will deal with this “on papers” before the hearing.
There then commenced a long discussion about a timetable for reports and responses, before the final hearing was agreed to take place on 10th and 11th February 2022.
Highlights of this discussion included the barrister for the OS stating that there is a possibility that it would be in Mrs P’s best interests to move back abroad with Kim, therefore they didn’t want too much time to elapse.
The timings of the doctors and ISW reports were also discussed, and the building in of a ‘round table’ or ‘shuttle diplomacy’ to be convened by the OS. I surmised this was a type of mediation which occurs outside of the Court room in a bid to reach agreement before the hearing (google confirmed this view).
A timetable was set out by the Judge and she asked whether the parties agreed it. Counsel on behalf of Louise, felt it was “tight, but should work” and counsel for Mrs P concurred.
Mrs. Justice Theis then went to Kim and carefully outlined the whole timetable again, ensuring she understood what was planned. Kim’s response was to ask again if the Judge had read her letter (submitted yesterday). Mrs. Justice Theis said she’d read it “slowly and carefully”.
It was at this point Kim threw in what I perceived as a total curveball.
She stated that she was not seeking her mother’s return. Kim said she feels she has “handed the baton on” to Louise (who she kept referring to as her mother’s “other daughter”, rather than as her sister). Kim said that her mother had a lovely time with her abroad, but she cannot ask it of her to travel back. Kim said her mother needs to be made comfortable and her wishes to be respected. Kim went on to say that when her mother had been living with her, she’d been disorientated to place.
I think it’s safe to say that as an observer I was not expecting this at all!
Not knowing some of the events surrounding the case, such as how Mrs P came to be back in England, I couldn’t say whether this was an expected or unexpected turn of events. I was interested to know however how the parties would respond.
Counsel for Mrs P said that sometimes Kim suggests she is happy for her mother to remain in England and at other times this changes.
Again, the subject of how Mrs P came to be back in England was obliquely referenced, with the comment about not wanting to “ raise the temperature”.
Counsel for Louise advised that if Kim is not going to provide an option for Mrs P’s return, then there isn’t an alternative option for the court to rule on. In this case the applicant would not be happy to go ahead with the two-day hearing, due to the expense to Mrs P from experts and the hearing itself.
Counsel for Mrs P pointed out that the OS may recommend that it is in Mrs P’s best interests to return to live with Kim and they don’t want to prejudice this potential outcome.
The response to this from counsel for Louise was that it was hard to see how the OS could come to a different view if both sisters were in agreement about Ms P’s best interests.
I did find it curious that the Official Solicitor suggested that they could find it in Mrs P’s best interests to return abroad if the option was not actually ‘on the table’. In the case of N v ACCG  the Supreme Court confirmed that the Court of Protection could only decide between ‘available options’ and jurisdiction is limited to decisions Mrs P could make if she had capacity. If Kim had withdrawn the offer of care for her mother, then in my view, there is no alternative and no dispute (short of an argument that Mrs P should be cared for elsewhere, such as a care home). I felt that perhaps the main issue was that Kim may later change her mind.
Mrs. Justice Theis advised that it was now the Court’s job to make a decision. That it involves striking a balance to see if a decision can be reached while not draining financial and emotional resources. The Judge felt it would be worth having a round table when the doctor’s report comes in (as it is already expected). Counsel for Mrs P felt they also need the ISW report.
The Judge requested a meeting in December to confirm the parties’ positions. This is before the ISW report is due. If there is agreement then the Court can be advised via a paper application and the hearing can be abandoned. As the Judge pointed out, there are decisions being made about best interests all around the country, but they don’t end up in Court. If, however, agreement is not reached, then the parties can revert to the timetable previously discussed.
Mrs. Justice Theis asked the applicant counsel (for Louise) to draft an order today outlining the positions. She advised Kim that is important for her to consider her final position away from the Court, but she “strongly encourages and supports” the parties to come to an agreement.
The Judge’s final words were that if agreement is reached “emotional energies can be released for providing care and support for your mother, rather than being focussed on court proceedings”.
As an observer I sincerely hope that agreement can be reached, for the sake of all parties.
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
1. All quotations are as accurate as possible but as we are not allowed to audio-record hearings, they are unlikely to be verbatim.