By Celia Kitzinger, 12th June 2022
At the hearing I observed (COP 13861341) before Mr Justice Francis on 18th May 2022, the applicant local authority was asking the court to make orders that P’s wife must move out of the home where the couple had lived together for many years, and that her contact with him should be restricted.
The Official Solicitor supported the draft orders.
It was clear that P’s wife does not want to move out of the house, nor does she want her contact with her husband restricted.
Unlike the other parties, P’s wife did not have legal representation. She was a Litigant in Person (LiP)[1].
I often see family members in Court of Protection proceedings without legal representation.
The Equal Treatment Bench Book covers a wide range of issues relating to fairness in court and provides specific guidance for judges on how best to ensure that Litigants in Person are treated fairly[2]. The guidance recognises, of course, that some Litigants in Person choose to represent themselves (e.g. because they don’t trust lawyers, or believe that they will do a better job themselves of putting their case across §2), but also, crucially, that most Litigants in Person in fact have no choice in the matter: they cannot afford to instruct a lawyer and do not qualify for legal aid.
Here are some extracts from the Equal Treatment Bench Book which highlight the importance of fairness in court for Litigants in Person.
Fair treatment is a fundamental principle embedded in the judicial oath and is, therefore, a vital judicial responsibility. […] Treating people fairly requires awareness and understanding of their different circumstances, so that there can be effective communication, and so that steps can be taken, where appropriate, to redress any inequality arising from difference or disadvantage. This Bench Book covers some of the important aspects of fair treatment of which all judges should be aware, making some suggestions as to steps that judges may wish to take, in different situations, to ensure that there is fairness for all those who are engaged in legal proceedings in our courts and tribunals.
§ 1 and §4, Equal Treatment Bench Book
Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.
§10 Equal Treatment Bench Book
For a discussion of the potential difficulties in communicating with people from different cultures and/or who speak English as a second language, see the sections on ‘Communicating interculturally’ and ‘Language interpreters’ in chapter 8. Those sections consider communication with witnesses, but difficulties are likely to become more acute when a person is also presenting his or her own case, without any representative to mediate cultural and linguistic understanding.
§21 Equal Treatment Bench Book
Judges must be aware of the feelings and difficulties experienced by litigants in person and be ready and able to help them with the court process…. […] LIPs commonly feel at a profound disadvantage. The aim of the judge should be to ensure that the parties leave with the sense that they have been listened to and had a fair hearing – whatever the outcome.
§17 Equal Treatment Bench Book
Sources of outside help and information for LIPs : Some litigants in person are unaware of the explanatory leaflets available at the court, or of the lists of advice agencies. Citizens Advice has an informative online information system, and local Citizens Advice offices may be able to offer assistance with case preparation. Advicenow also has a useful collation of resources on its ‘Going to court or tribunal’ website page. While these possibilities may be flagged up to LIPs, it is important not to overestimate the availability and extent of voluntary sector assistance. Advice agencies have been subject to severe funding cuts, both to grants and to legal aid income, in recent years. LIPs are likely to have difficulty in getting prompt appointments or finding the level of specialist expertise needed. The experience of trying to find help without success can itself be very demoralising.
§18, Equal Treatment Bench Book
In this post, I’ll look at how this hearing unfolded with particular reference to how the judge embodied through his actions some of the relevant principles of the Equal Treatment Bench Book quoted from above, and the challenges in doing so.
What was the hearing about?
The local authority was making two applications to the court: one under the inherent jurisdiction of the High Court (more on this later), the other under the Court of Protection.
The first was an application for an injunction against P’s wife ( W ) ordering her to move out of his house in two weeks’ time. This is because P would like to move back home (he’s currently in residential care) but she is alleged to have abused him. The injunction also requires her to permit access to professionals between now and then, so that they can make the accommodation suitable for P to move in.
The second was an application to make declarations – on the basis of an expert capacity assessment that wasn’t disputed – that P has capacity in relation to residence and care, but lacks capacity to make decisions about his property and financial affairs, and about contact with his wife. (He also lacks capacity to conduct these proceedings and the Official Solicitor is acting on his behalf).
On the basis that P lacks capacity to manage his finances, the applicant local authority also asks for appointment of a Deputy to deal with his property and affairs – and also an ‘interim’ Deputy to be appointed urgently so that matters can progress until a panel Deputy is approved by the court.
On the basis that he lacks capacity in relation to contact with his wife, the applicant local authority asks that P’s contact with his wife should be restricted in his best interests.
The Official Solicitor (acting on behalf of P) supports these applications.
As became clear during the hearing, although P’s wife, W, was content for a Deputy to be appointed for her husband, she opposes the injunction requiring her to move out of the home she shared with her husband for many years (although by the end of this hearing there was some indication that might change), and she opposes restrictions on her contact with her husband. She does not accept evidence that she abused him.
P’s wife was multiply disadvantaged in this hearing.
- Unlike the local authority and P, she did not have legal representation, i.e., there was no barrister in court to speak for her.
- She is not a first language English speaker, so she was reliant on interpretation during the hearing and translation of documents into her own language (which had not been done, although some translated summaries had been sent)
- She had not been sent copies of the up-to-date draft orders
- She had not been included in the pre-hearing discussion at which these orders had been discussed and agreed by the other parties
- She was attending the hearing via phone when the other parties were using the video-platform, so had no access to visual cues accessible to others.
- She was angry and upset, and displayed some fundamental misunderstandings about the basic legal principles of the Court of Protection.
Background
The protected party (P) is in his seventies and has Parkinson’s disease and dementia. He’s been living in a care home since December 2021 and would like to return home to a property of which he is the sole owner and the local authority is considering whether a return home with a package of care in place would be feasible. The presence of W in the property is “a significant barrier” (says the Official Solicitor) because it poses issues “in relation to P living without abuse, and with successful delivery of care”.
Counsel routinely referred to P’s home by its street address (I’ve pseudonymised it as “Number 15”), presumably as a more neutral designation than alternatives such as “the matrimonial home” (used by the judge at one point) and “my house” (used by the wife, via the interpreter).
The local authority is of the view that, despite having capacity to make his own decision about where to live, “his free will is being overborne” by his wife who has been accused of abusing him – physically, emotionally and financially. This means that he is a “vulnerable adult” as described in case law (e.g. Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 and Re SK [2005] 2 FLR 230).
The Court of Protection cannot make best interests decisions in situations where a person is deemed to have capacity to make that decision for themselves (even if the decision is an unwise one). But the High Court can do so, under its “inherent jurisdiction” if the person is a “vulnerable adult”. This includes cases where a person is at risk from other people (e.g. from domestic abuse, undue influence, coercion or control) but “chooses” to remain in that situation while being apparently able to understand, retain and weigh (s.3(1) Mental Capacity Act 2005) the information relevant to their decision – or at least their inability to do so cannot be said to be caused by “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005): in other words, they have capacity to make the decision that puts them at risk of harm. The inherent jurisdiction has been described as “the great safety net”, (Re DL [2012] EWCA Civ 253) used by High Court judges to fill the gap left by the fact the Mental Capacity Act only applies to those lacking mental capacity applying the test in ss.2-3 of that Act. (See the excellent ‘shedinar’ by Alex Ruck Keene on the inherent jurisdiction here and a downloadable pdf from 39 Essex Chambers here).
So, although P would like to return home and has capacity to make that decision, the local authority is of the view “this cannot happen” while his wife is living at the house, or continues to have access to it. “If he were to [return to Number 15] with W in occupation, it would compromise his well-being. That is because of his will being overborne by W as part of their relationship. Even though he’s been living away from her for a couple of months, it isn’t a situation where his will has become entirely independent.”[3] (Counsel for the LA)
They have applied for an injunction under the inherent jurisdiction of the High Court to exclude W from P’s property and to restrict her contact with him.
The proposed property and affairs Deputy appointed to manage P’s finances will be able to offer short-term financial assistance to W if she can’t arrange alternative accommodation. In the long term, one option is for P’s house to be sold and separate accommodation to be purchased for husband and wife: that’s an option that P himself has sometimes said he wants to happen, but has at other times been less keen on. His consistently expressed wish is to return home to Number 15 (sometimes to live with her, sometimes with her living elsewhere).
Up until today’s hearing, W has (say the local authority) been “obstructive” and “refused to take part in proceedings or comply with court orders”.
By way of a little additional background, W is P’s second wife, whom he met while travelling in Asia. They have two daughters of secondary school age who have been removed from their care because W “poses a serious risk of harm to the children”. P also has an adult daughter (with whom his ex-wife lives), and he’d lived with her for some months after he moved out from his own house due to W’s behaviour.
The hearing
The applicant local authority was represented by Michael Paget of Cornerstone Barristers, and a social worker was also present.
The first respondent, P, was represented (via his litigation friend, the Official Solicitor) by Sian Davies of 39 Essex Chambers. P was also present at the hearing – with his camera on, seated on a red High Back chair in his care home, apparently alert but impassive throughout.
The second respondent, P’s wife, W, was a litigant in person, attending with her interpreter.
When the judge joined, there were (brief) introductions as to who was in court, and their roles. Although the judge greeted P (“Before we go on, I can see P sitting there too – hello can you hear me?”) he did not greet W, who was attending via phone and so was not visible on the screen.
And there was no opening summary at the beginning of this hearing. I initially struggled to work out what it was about. I imagine that W was completely at sea (despite the translation) when listening to Michael Paget’s opening remarks.
The challenges of interpretation
At the beginning of the hearing, Michael Paget (for the applicant local authority) checked that the judge had received the Position Statements from the represented parties. He then said that there was “a further iteration of the draft orders following a pre-hearing meeting and I can send these through shortly”. I gathered that an order for W to leave Number 15 had been amended from a week from today to two weeks from today, and it had been agreed that the local authority should be appointed as an interim Deputy (pending appointment of a Deputy by the court) in order to manage immediate financial matters such as ensuring utility suppliers at Number 15 are paid, that the house has access to the internet and so on.
After each paragraph of speech from counsel, the interpreter translated everything into W’s language, and the court waited while this was done. At previous (remote) hearings I’ve watched, the interpreter and the person for whom they’re interpreting have both appeared on the video-platform with their mikes off, and have had a separate channel of communication open to them (e.g. telephone or WhatsApp). (For a description of how this can work, see British Sign Language Interpretation in the Court of Protection). This means that the court doesn’t experience the interpreter’s version, which is going on behind the scenes. In this hearing, because only the one channel of communication was open for W, we all listened to the interpreter throughout the hearing.
What struck me was how long the interpreter’s version was compared with the original English. The judge also commented on this (“it seems to take twice as long in your language”) and the interpreter explained that sometimes there is no direct translation so she had to explain the meaning of words in roundabout ways. (“Thank you for explaining”, said the judge). This also meant the interpreter occasionally used English words, which for English-speaking listeners, jumped out of the flow of an otherwise unintelligible translation.
The judge smiled during the course of one (fairly lengthy) translation and hastily accounted for this by saying “it always amuses me when we get an English phrase in the middle of a [foreign language] sentence – so ‘Court of Protection’. That’s all I was smiling about, nothing else”. I recalled this comment when I read this paragraph in the Equal Treatment Bench Book:
A thoughtless comment, throw away remark, unwise joke or even a facial expression may confirm or create an impression of prejudice. It is how others interpret the judge’s words or actions that matters, particularly in a situation where they will be acutely sensitive to both.
§21 Equal Treatment Bench Book (my emphasis)
A contested injunction to vacate Number 15
The first task the judge addressed was to determine whether he was having to make a decision that everyone basically agreed about (certainly the applicant local authority and the Official Solicitor were in agreement) or whether one party – P’s wife – disagreed and so the hearing was “contested”.
Was W objecting to moving out of Number 15 or was she willing to leave the property as the draft injunction required her to do?
Counsel for the local authority said: “until today ,W has taken no active steps in proceedings, and the Official Solicitor and Applicant have had no comfort that she would be willing voluntarily to vacate the property or voluntarily amend or restrict her contact with P.”[5]
The judge asked, “Does that mean I’m hearing a contested injunction this afternoon?” and counsel for the local authority said “I think so – subject to what W says. It might be she’s willing to give undertakings, but the Official Solicitor and the Applicant would not be comforted by undertakings at this stage in the proceedings, given the history of the case.”
The judge did not then immediately ask W whether or not she was willing to vacate Number 15. Instead, he asked counsel a series of questions which seemed directed to ensuring that W was not disadvantaged by her role as a litigant in person.
He pointed out that there were written witness statements providing evidence for the position of the local authority, but the local authority said that it did not propose to ask for oral evidence in court. The judge pointed out that W may wish to cross-examine on the statements.
It then emerged that W had not seen a copy of the Order the local authority was asking the judge to make.
Judge: How can I deal with a contested injunction if the respondent doesn’t know what you’re asking for?
Counsel for LA: She does know what we’re asking for, but she doesn’t know the precise wording. She doesn’t have internet, so we’ve been hand-delivering papers to her.
At this point, Mr Justice Francis addressed W directly, and the following exchange took place (Bear in mind that the judge’s questions had to be translated into W’s first language, and W’s responses were then translated into English.)
Judge: Mrs W, can I ask you this question. Do you agree that from 1st June you should not be allowed to occupy or visit Number 15?
Wife: No.
Judge: Do you want to live there with P or on your own?
Wife: (crying) Of course I want to live there with my husband and children. This is my family. I don’t have a solicitor. I have not had enough money to buy food. My phone has been stopped. I don’t have money to pay for it. We have legal marriage, so why? Tell me why!
Judge: (to counsel) Legal aid – is it merit-tested or means tested? Would W be entitled to legal aid or not? I am troubled that she doesn’t have legal representation today. Translate please.
Wife: (crying) I am a human being. I am not an animal. I have child with my husband. After each day this matter seems to get more serious. I am not a bear. Why do I have to be away from my husband? Why keep saying untrue things about me? If my husband cannot remember, I can look after him. I am not some stranger walked into his life. He asked to marry me and he is my husband.
Judge: (to applicant counsel) Balancing fairness for both parties, how am I to meet the requirement for fairness towards W if she’s not represented this afternoon?
Counsel for LA: These proceedings have been afoot for some time and she’s been aware of these proceedings. It’s very good news for the court that she’s now engaging. She’s had the whole of 2022 to engage with the issues in this case, her relationship with P, and her occupation of Number 15. W has decided to engage at this late stage with the proceedings, but it’s clear from what she’s said thus far that she’s not engaging with this issue. She’s engaging with historic issues relating to her children that are not germane.
Judge: If I don’t make the order this afternoon, where does P live?
Counsel for LA: He’ll continue to live at the care home. (Confirmed that he was not being asked to leave.) The court has a choice whether to make orders today, or a short-order return date if W wants to challenge the applicant’s evidence that P is at risk in her company. W has failed to engage at all with those assertions and is in denial that they have happened or are likely to happen. She does not recognise the wishes and feelings of P, or the court decision that it is not in his best interests to have unrestricted contact with her. We’re not confident that if the court does indulge her to give her additional time with an in-person hearing that that will assist in putting forward any case whatsoever against the manifest evidence that has been provided by the local authority and is supported by the Official Solicitor. P has been living in a care home where he shouldn’t be for months now. It won’t make a dramatic difference if you don’t make the order today, but it’s completely sub-optimal and unsuitable for him.
Judge: What do you say are the prospects of- Is there any benefit to P if he and W live in the same house together, or do you regard that as untenable and unsafe for him?
Counsel for LA: The latter.
Judge: (to W) If I put this case off for a few weeks, are you going to be able to get a lawyer?
Wife: It will be impossible. Because I don’t have money for taxi, I don’t have money to eat. Everything in this house has broken – microwave, oven, fridge, washing machine, even the bathroom, the internet. My phone is not working because I have not been paying the bills. I need people to help me find a solicitor because it’s not going to work for me if I have to do it myself.
Judge: Has anyone done a survey of the property to find if it’s suitable?
Social Worker: I visited the property yesterday. Everything appears in good order. The fridge and the cooker were working.
Judge: If I make the order you’re seeking, you’re satisfied that with P’s money she could rent somewhere in the notice time that she’d have?
Counsel for LA: Yes.
Judge: Mrs W, do you want to ask questions of any witnesses if I proceed to hear the case this afternoon.
Wife: This is a small trivial matter. A trivial family matter. This is not a corporation that requires witnesses. We don’t need witnesses for this kind of case because it’s a family matter. The ladies who come to the house, sometimes they are happy-happy, sometimes they shout at me. I am a human being and I retaliate. I raise my voice. At first it was my children not being well, then my husband not being well. All fabricated. When husband is not well, he needs wife to look after him. When not quite clear in the head, everyone would need to have a spouse by their side – to look after you so when you’re unwell, under the weather, you have someone there to rely on. Why did the ladies who came to my property not allow me to give explanation? As soon as I left my property, they took my husband to the nursing home. In [country of origin] I own a company, okay? I am a company director, so I haven’t brought my money over. I am not a maid. The whole thing has been exaggerated by people who are not listening to me. They’re not on my side, so they have invented things and expected me to follow.
For me as an observer, this answer (and the exchange leading to it) revealed significant problems in W’s understanding of the case, and its legal framework, and indeed of the procedures and processes of the Court of Protection. She doesn’t understand the role of witnesses in this court, or recognise that it has jurisdiction to make judgments about “family matters”. People are often surprised and shocked to learn that once a family member loses capacity, “next of kin” cannot make decisions about them, and that the state – in the form of professionals and sometimes the court – takes over that role. For people from cultural backgrounds which place great emphasis on “family”, this must be particularly challenging.
The judge asked counsel for the local authority how he should proceed.
Judge: Mr Paget, where do we go from here? I’m sympathetic to P’s position, but I also have to consider Mrs W’s position.
Counsel for LA: Her indirect answer, if we take it that [the Social Worker] was one of the women who visited her, is that the evidence is ‘fabricated’, ‘invented’ and ‘exaggerated’. So, she’s clearly contesting that evidence. Balancing fairness, she should have the opportunity to give her evidence.
The judge then turned to the Official Solicitor.
Judge: Ms Davies, I’m very troubled about this – because if moving P back into his own home is the right thing to do, then the sooner the better. Having said that, W presumably has matrimonial rights to live in the property. Ms Davies, what do you suggest I do? Make the order today or put it off for the possibility of W being represented?
Counsel for P: The first point I’d make is one that Mr Paget has already made the court aware of. Proceedings began in December last year. This is the first hearing W has attended. Not only has she not attended, but she’s not engaged with proceedings. My client doesn’t want to be in a care home. It’s not being suggested on anyone’s behalf that W should be made homeless. Alternative accommodation arrangements will be made for her. There are clearly serious issues to be resolved and it is a matter of concern that W regards these issues as “trivial”, because the Official Solicitor considers them to be very serious.
Judge: The parties are married. It’s a matrimonial home where they lived as a couple. I can’t ride roughshod over her rights and say, “oh well, she’s got somewhere else she can go”.
Counsel for P: It’s a difficult balance. There is a disadvantage for W in being a Litigant in Person. I’m not able to say with certainty that she’d qualify for legal aid, but it would seem on the face of it she’d qualify for representation. She doesn’t say she’s attempted to secure legal advice and been unable to – which is consistent with her until very recently not engaging with these proceedings.
I was perturbed that the Official Solicitor seized on W’s use of the word “trivial” – by which I heard her as meaning “family-not-corporate” – to undermine her position. This didn’t seem fair – especially since “trivial” was in translation anyway. She also used W’s lack of legal representation to emphasise (again) that W had not been “engaging with these proceedings”. I heard this as casting aspersions on W in an unnecessarily adversarial manner. The judge did not comment.
What was clear was a shared concern that W should have access to legal representation if at all possible – and a potential solution was arrived at later in the hearing.
Court of Protection Order to limit contact
So far, the discussion had been about the draft injunction (under the inherent jurisdiction) requiring W to move out of Number 15. Counsel for the local authority now raised the matter of the orders they were seeking under the jurisdiction of the Court of Protection.
In response to the judge’s questions, Counsel for the LA said that – just as with the previous Order – W had not seen the Order the applicant was seeking from the judge. This really is troubling, and the judge again raised issues of fairness.
Counsel for LA: Mrs W hasn’t had an opportunity to comment on the Court of Protection draft order, with the invitation to appoint a panel deputy and to restrict her contact (as a best interests decision) with P.
Judge: When did W first see the Court of Protection Order?
Counsel for LA: She hasn’t seen a copy of it. She was aware of what we were seeking in Court of Protection proceedings – although she was not aware of the additional interim Deputy issues.
Judge: Has she been sent a copy of either draft order – either in English or in her own language?
Counsel for LA: No.
Judge: If you were representing W in these proceedings and you were being asked to comment on an order you hadn’t seen at 3.30pm, you’d be saying it wasn’t fair, wouldn’t you.
Counsel for LA: I would if it was a long and complicated order, but it’s short and can be explained to her.
This exchange was followed by (what I experienced as) a long and complicated explanation of the contents of the Court of Protection order from Counsel for the local authority. I was not sure of what some of it meant myself, particularly in relation to the financial deputy.
Judge: When did W get notice that the local authority was seeking these other orders – not about the house, but all the other orders.
Counsel for the LA: 25th March or shortly thereafter
Judge: (to W) Do you agree you had notice on 25th March or shortly thereafter
Wife: I have received quite a lot of paperwork but all in English. Please say to the court they have to be in [Asian language] otherwise I can’t read them.
Counsel for the LA: We sent a cover letter explaining the substance of the order and that has been translated – but not the order itself. (Refers to pages in the bundle which show they’ve done this).
At this point I was struck by how exhausted the judge looked. He took his glasses off and rubbed his eyes.
It does seem to me pretty basic on any understanding of fairness that all parties to a case, including a Litigant in Person, should have received the relevant Position Statements and draft Orders, before the hearing – in a form they can understand and with enough time to read them. I’ve watched several hearings where Litigants in Person have not received draft Orders and have had to rely on explanations of them in court, or speed-reading during a brief adjournment. I understand, I think, how this can happen, but it is surely a self-evident problem when considering equality and fairness in court.
The judge then took it upon himself to explain the draft Order – apparently recognising that counsel’s explanation of it would have been unintelligible to W.
Judge: So, the first thing is the appointment of a Deputy. I don’t expect W knows what that means. What we’re talking about now is whether I should make an order appointing the London Borough of Hillingdon to take control of your husband’s financial affairs. Is that something you can agree to or not?
Wife: I agree, because I know my husband is living in there, not being able to look after his cards. However, I want to ask the court what will happen to me. How about my spending?
Counsel for the LA: There is authority under the Deputy order to pay reasonable living expenses and, if required, rent for W.
Wife: To me, all I care about is for my husband and my kids to be safe. Those things are the most important. Everything else is temporary only.
Counsel for P: P’s view is that he would want his wife to be looked after financially. That is in accordance with his wishes and feelings.
At this point, with the clock obviously ticking and a busy schedule, the judge said:
Judge: We can’t do this piecemeal or we won’t get through it. I will make declarations that P lacks capacity regarding litigation, financial affairs and contact with the second respondent. Secondly, I’m going to make an order for a panel Deputy. Mrs W herself has indicated that she agrees that I should do that, and it’s plain from everything I’ve heard and read that I need to make that order.
I didn’t hear him say that he was going to make the order that it was in P’s best interests not to have contact with W, or that he wasn’t going to make that order. I don’t know what the judge decided on that.
There was then a discussion of dates for next hearings, with consideration of whether it should be in-person, remote or – as was decided in the end – hybrid (so that P could attend remotely). The judge fully consulted W about this – she said she didn’t have a preference.
Foreshadowing the issue to be addressed at the next hearing, the judge then asked W the key question about whether she would move out of the property, so that P could return there.
Judge: Mrs W, let me ask you this. If P is able to fund you to live in a rented property, are you willing to live in the rented property and for him to live in Number 15.
Wife: I am quite easy on this. It’s not important. I can survive without eating for one day, maybe two days. So long that my husband and kids are well.
Judge: I’m not talking about food. I’m talking about accommodation.
Wife: I told you. I mean I am not fussy on this. Whatever. Staying somewhere, eating something, these things are not important.
Judge: (to counsel) Once you have the Deputy appointed, you may be able to come to some arrangement and she might move out. If the Deputy and W come to an arrangement, because she says she’ll be fine with that, then you will get what you want without a further hearing.
Legal representation for W
The judge then mooted the idea that he should list the hearing for “one morning next week, in the hope that you might have been able to crack this by the route I’ve suggested”.
Counsel for the local authority agreed – and the judge reminded him that “there is a huge problem with language and understanding. If you are to do a deal with W, you have to produce documents and use language and concepts she can understand”.
He then checked that W had understood that no decision had been made today about her occupation of P’s property (she said she understood) and encouraged her “in very strong terms to get some legal advice”. He mentioned Citizen’s Advice (see §18, Equal Treatment Bench Book), and commented on how “unavailable” legal aid is “in situations like this” and that as a consequence, “the system works much more slowly and much more cumbersomely and to the disadvantage of people like P”.
He then raised a possible solution to the problem of representation for W, asking counsel for the LA: “What are the prospects of the Deputy being prepared to make money available to get legal advice from a solicitor qualified in Court of Protection work to advise W?”.
Counsel agreed to explore this as a way forward: “the Deputy is governed by best interests at every stage. It would be in P’s best interests for W to have legal advice.”
One final issue was raised by Counsel for P – the matter of professionals having access to Number 15, so that they can ensure it’s suitable for P to move back in. On checking with W, she said she “agreed” and was “content” for this to happen and the judge asked for a recital to be added to the order that she’s agreed to permit access (“not a formal undertaking, because that creates legal difficulties”).
The judge ended the hearing by addressing Mrs W.
“Mrs W, what I’ve tried to do, I’ve tried to walk the difficult line between protecting P and protecting you. And I’m very grateful to you for making the agreements that you have. And what you’re being asked to do now is consider moving out of Number 15 once you’ve got enough money to live somewhere else. And I’m going to list this matter in another remote hearing, like this, so we can all meet and agree that this matter has been resolved.” (Judge)
He checked that an interpreter would be provided for in the draft order for the next hearing, thanked the interpreter, and concluded: “With understanding and patience, I think we’re going to get there”.
Fairness?
In my view, the judge did virtually everything he could, within the parameters of the time constraints, to treat P’s wife fairly as a Litigant in Person.
Most importantly, he did not issue the injunction ordering her to move out of “the matrimonial home” – hoping instead that she would agree to do so once he’d authorised the local authority to act as interim Deputy, so that the local authority could “make a proper offer to W to enable her to live elsewhere” (i.e. living expenses and accommodation).
If that doesn’t happen, or W doesn’t accept this offer, the case will be back in court but hopefully, next time, with legal representation for W, paid for by P if necessary.
The solution to the problem of unfairness for Litigants in Person must be to stop them being Litigants in Person by ensuring they get legal representation – but with cut backs in legal aid (which disproportionately affect members of BAME groups and women, i.e. people like W) this can be impossible.
That’s why the Equal Treatment Bench Book is so important, as increasing numbers of Litigants in Person come to the courts, in offering guidance and support to judges about how to deliver “fairness” when the parties before them are starting from such unequal positions.
Observing this hearing showed me how difficult it is to do that, even with a judge very clearly oriented to matters of fairness and to the inequal resources of the parties before him.
It isn’t unusual for me to see the guidance on “fair treatment” from the Equal Treatment Bench Book being put into practice. Whenever there’s a Litigant in Person in court (which is often), I see judges doing their very best to ensure that person feels comfortable, understands the procedure, and feels able to participate.
In many hearings I’ve observed, the Litigant in Person takes a position which is supported by either the local authority or by the Official Solicitor (or by both). In such cases, the inequality they face is less starkly apparent. But here, the Litigant in Person was on her own, opposing Orders agreed by the other parties.
This case stands out for me as particularly challenging not only because of the multiple ways in which W is disadvantaged and the absence of support from other parties, but also because her interests, as a Litigant in Person, are diametrically opposed to (what the other parties agree) are P’s best interests.
She wants to remain in Number 15 and to have unrestricted contact with P. They say it’s in P’s best interests for her to leave Number 15 and for her contact to be restricted.
So, the judge is forced to juggle two key principles.
On the one hand there’s the primary commitment to acting in P’s best interests that is central to the work of a Court of Protection judge – which means (according to the represented parties) that he should issue an injunction against W so that P can go home. There was no effective position to counter that application.
On the other hand, W has not been able effectively to present her case to the court. She doesn’t have legal representation, hasn’t seen the Orders in advance and doesn’t understand the legal principles at stake. There hasn’t been a fair trial. And so, to issue the injunction would seem to violate the “fundamental principle” of “fair treatment” that is a “vital judicial responsibility”.
Postscript: The subsequent hearing (on 8th June 2022) was observed by social worker (and aspiring barrister) Mollie Heywood whose blog post you can read here (A short hearing and a failure to agree). In essence, there was no agreement reached and so a contested hearing is listed for 10.30am Monday 13th June 2022 before Sir Jonathan Cohen (via MS Teams).
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
Photo by Elena Mozhvilo on Unsplash
[1] It became clear that she had not previously played any part in these proceedings and counsel had not initially expected her to be present in court today: she had told them that she might return to her country of origin (in Asia) while the proceedings were ongoing, but had not in fact done so.
[2] There are also resources for Litigants in Person here: https://www.judiciary.uk/you-and-the-judiciary/going-to-court/advice-for-litigants-in-person
[3] Direct quotations from the hearing are as accurate as I can make them, but we are not allowed to audio-record hearings and so they’re based on touch-typed contemporaneous notes and are unlikely to be verbatim. At this hearing, however, advocates were asked to speak slowly to help the interpreter, and there were many gaps in the proceedings while the interpreter translated what had been said, and occasionally asked for repeats or clarifications. This means it was also easier for me to get down what was said with greater accuracy (I believe) than I might otherwise have achieved.
Promoting Open Justice in the Court of Protection 
I don’t understand the role of the Court of Protection here. Can they really deprive a married woman of her residence rights in the matrimonial home? I would have expected that to be a matter for a divorce court. And, if I find it hard to believe that the COP has this authority, how much harder must it be for someone who doesn’t even know the English language and in whose culture such a thing would certainly be alien?
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