By Celia Kitzinger, 25th March 2022
The young woman at the centre of this case has “a notable story for someone who’s only in her early twenties – there’s a staggering amount of social and personal problems that P has dealt with in her very young life” (said Ben McCormack of Garden Court North Chambers, representing P via the Official Solicitor). The judge said later that although “Mr McCormack’s word was ‘notable’, I’d suggest ‘harrowing’ might be a more accurate description of it”.
She has a history of drug use, self-harm, self-neglect, homelessness and being exploited financially. She’s at risk of sexual exploitation, assault and rape – having previously reported being forced into sex work by people she calls “friends”. She’s made six separate allegations of rape. She’s been pregnant and had a baby who was taken into local authority care. She has a history of criminal offences, including shoplifting and threatening people with knives, and has served prison sentences.
She’s been said to have “complex emotional needs and emotional dysregulation” and a “probable learning disability” – but it’s not entirely clear that these (uncertain) diagnoses qualify as ”an impairment of, or a disturbance in the functioning of, the mind or brain” (s.2(1) Mental Capacity Act 2005) sufficient to trigger the Mental Capacity Act. More questions have been asked of the expert clinical psychologist who examined her, and produced a first report in December 2021. An updated report is awaited, but there is no agreed submission date for this, and some concern about the delay in his response about when he can complete this work.
The question has been raised as to whether the case should transfer to a High Court judge – partly because of borderline capacity issues (and the possibility that the local authority might seek to use the inherent jurisdiction), and partly because of the complexities raised when someone is believed (albeit here on an interim basis) to have capacity to engage in sexual relationships but not to have capacity to make their own decisions about contact.
So far, though, the case remains with a circuit judge, His Honour Judge Andrew Berkley, in Manchester Civil Justice Centre.
On the day of the previous hearing, just over a month earlier, P was moved from prison to a new specialist placement with a very restrictive care package. It includes: two staff with her at all times, trained in restraint and de-escalation techniques; use of a security vehicle for transport outside the placement; restrictors on windows; security alarms throughout the property; no access to an internet-enabled phone; and vetting of phone calls and visitors.
She’d been invited to attend court today to share her views about her placement and care package with the judge.
But she’s gone missing.
On 18th March 2022, five days before this hearing, she “absconded” from the placement.
She asked to go outside for a cigarette, staff accompanied her into the garden, she climbed over the garden fence – and when they tried to physically restrain her, she kicked them in the face, made it over the fence and disappeared. She’d said she wanted to go to live with her boyfriend in another city and police believe that’s where she’s gone.
So, instead of the predicted court hearing focused on how she was “settling in” to her new home, the court is asking for a full explanation of how she was able to abscond, and an urgent review of her care plan.
The two hearings
I’ve watched two hearings in this case (COP 13836522), the first on 22nd February 2022 and the second on 24th March 2022.
There’s a longer history of hearings, all (I believe) before HHJ Berkley, going back to October 2021.
The court has already found (for the purposes of s. 48 of the Mental Capacity Act 2052 (i.e. as interim declarations) that there is reason to believe that P lacks capacity to conduct court proceedings and to make decisions as to her residence and care, and contact with others – although (according to Ben McCormack), “on any view, she’s close to the borderline of having capacity to make decisions”.
The hearing on 22nd February 2022
The very restrictive care plan, and a new placement, were approved at the hearing on 22nd February 2022.
P didn’t attend this hearing because it was held on the very day of her release from prison and there was, said Ben McCormack, “some uncertainty about when the van was turning up, so we didn’t know quite when- there were too many moving parts”.
The judge asked why the application to approve this very restrictive care plan was made “urgently” on the very day of P’s release from prison, given that (he said) “when I read the care plan put together on 10th February, it was clear that this young person was going to be released on 22nd February – so the authorities have known she would be released today for about two weeks“.
There was no satisfactory response to that question and the judge remarked that “the local authority needs to reflect on that”, not least because “an earlier hearing, in advance of the day of her release, would have enabled P to attend the hearing” (as she has in the past, making – according to the judge – “colourful contributions“).
The judge approved the care plan because he had “absolutely no doubt that while these restrictions are at the highest level of restriction, they are necessary and proportionate to the level of risk this young woman presents“. He had, he said, “been made aware at previous hearings of the extent to which P will utilise all means of communication available to her (whether her own devices or not) to contact people who present grave risks to her – including the serious risk of death“. This new placement and care plan was to attempt to prevent those contacts and also “to prevent [P] from absconding from the placement or in the community” (according to the local authority Position Statement).
The plan was to invite P to attend the next hearing to “see how she responds to the new situation”. Her counsel suggested that hearing should be “in a week or two”.
For the local authority, Arianna Kelly of 39 Essex Chambers thought that would be too soon. For the first two weeks, she said, P would be “settling in”. She suggested that it would be best to have a roundtable review in about three weeks and then return the case in court in four weeks’ time, as this would result in “a more meaningful review”.
The judge, who had met P at previous hearings, said: “I share Ms Kelly’s time scale that the matter should be brought back in 3-4 weeks. My experience of this young woman is that there may be a honeymoon phase and things will become more difficult as days pass.” This turned out, with benefit of hindsight, to have been an unfortunate decision. He did add, though, that “if a more urgent hearing is required… that remains within the ability of the lawyers to make an approach to the court”.
The hearing on 24th March 2022
At this hearing it was apparent that things had gone badly wrong. Not only had P absconded, but there had been “internal miscommunication” about what was happening on the ground.
Counsel for the local authority (Arianna Kelly) reported in her Position Statement that P had absconded on 18thMarch but “was returned by the police”. At the beginning of the hearing, she offered an “unreserved apology” for this error of fact.
Counsel for P via the Official Solicitor (Ben McCormack) correctly stated in his Position Statement that P “did not in fact ever return home. She has thus been away from the property for five days and nights without either her own lawyers or (seemingly) the local authority’s legal team being aware of that fact”. He expressed “major concern” that she should have absconded without her own legal team being notified until after 5 days had elapsed, just before this hearing. It was of great concern, he said, that P had talked openly (on 17th March 2022 – the day before she left) to her solicitor and care staff about wanting to go to live with her boyfriend – and it seems that’s exactly what she did, the following day. The care provider did not immediately notify the local authority social work team or its safeguarding team. “It would have been better,” said Ben McCormack,“if that information had come to us earlier – within hours of her jumping the fence”.
“What these incidents reveal (at best) is a lack of communication between the care agency and the local authority. That cannot be good for [P]. Urgent steps must be taken by the authority to ensure that the care staff are aware that key information that goes to [P’s] wellbeing needs to be shared with the local authority.” (Ben McCormack).
On behalf of P, Ben McCormack made three key points:
- The court and parties need a proper explanation of what has happened since P ran away. (The probation service also needs to know, as she was in breach of an order)
- The local authority needs to think about, and explain, what’s going to happen when this young woman is brought back unwillingly and locked up again. “Someone has to plan for this. How is it sustainable? What are the plans for her to see her boyfriend? He might be a terrible influence. He might be a nice lad. Nobody knows. She lacks capacity to decide on contact, so somebody has to decide on her behalf. How can someone add a bit of sparkle to her life? Looking at the carers’ records, she does a lot of smoking, and a lot of cleaning, and not much more than that. When she’s brought back, there has to be some strategy for making life better for her, to see whether she could be persuaded that it’s a bit better for her to stay there – without having to drag her off the top of a fence and get kicked in the face for the privilege of doing so.”
- The case should come back for an urgent hearing. “Minds are focussed and evidence is obtained when a lawyer has to be back in court. We would like it to be in person, in a courtroom with P having the opportunity to be able to attend. She said last week she didn’t want to. She’s physically very well and could attend court if she wants to.”
The judge accepted all three points. He was concerned that this information about P having absconded (and not returned) had not been made available sooner, and emphasised “the significance of effective communication in respect to the situation of a young woman as vulnerable as P”. He was “gravely concerned” about the risks P was now exposed to and said “I need to understand, as do all parties, how this situation has arisen” and asked for a “speedy explanation”. He also decided to issue a direction to the clinical psychologist whose answers to follow-up questions are pending, that he should respond by 3 weeks today.
The next hearing is planned for 2.30pm on Friday 1st April, probably an attended hearing in Manchester – with an invitation to P to attend in person.
At the centre of this case is a young woman who “absconded” from a house with locked doors and windows, monitored day and night by people trained in restraint, because she simply didn’t want to be there.
She’s evidently extremely vulnerable to exploitation and abuse but, as Munby J put it, “What good is it making someone safer if it merely makes them miserable?”
I don’t know if P was happier before she was locked up – first in prison and now in her placement. Maybe not. Maybe her own decisions didn’t lead to a happy life, any more than the decisions of the court on her behalf seem to have done. But she is clear that she wishes to be free of restrictions and allowed to leave the placement – despite what the Official Solicitor says are “real and significant risks” to her in doing so.
The tension is between, on the one hand, P’s autonomy and freedom, and on the other keeping her safe from harm. As Ben McCormack put it, “she’s been locked up for her own good, but she doesn’t like it”.
This is a classic dilemma for the Court of Protection – posed here in a particularly acute form, not least because this very vulnerable young woman seems to be close to the borderline for capacity to make her own decisions.
Much may now depend on ensuring that the placement is attractive to her not just because it is “safe”, but because it offers her opportunities for a more fulfilling life, including her right to have personal relationships with other people.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
 We are not permitted to audio record court hearings. Quotations are as accurate as I can make them, based on contemporaneous (touch-typed) notes, but they are unlikely to be verbatim. The words quoted here were said by Ben McCormack in his very useful opening summary to the hearing of 22nd February 2022.
 It also seems that (contrary to the restrictions approved by the court in the order of 22nd February 2022), P had acquired an iphone, and it seems likely that she used it to make the arrangements to abscond.