Sisters’ dispute over Deputyship – and a concern about open justice

By Daniel Cloake, 20th June 2022

Two feuding sisters (Ms J and Ms E) have asked the Court of Protection to pick one of them as a deputy after their father lost capacity to manage his finances following a series of strokes.

The hearing I observed was listed on the “Daily Hearing List” on the court’s website as follows: Friday 10 June 2022, Before District Judge GROSSE, 2:00pm COP 13824233, Directions, Property and Financial Affairs , Attended , PUBLIC HEARING WITH REPORTING RESTRICTIONS , time estimate 2 hours , Court 22.

The court heard that Ms J, whose identity is protected by court order, applied to act as a so-called Property & Affairs Deputy for her father in August 2021.  This would enable her to “do things like pay the person’s bills or organise their pension” 

Her father, P, is in his seventies and resides in a care home.  The court was told he enjoys listening to Reggae music when family come to visit.   

District Judge Grosse explained the use of the initial P to describe him “it’s the way the Court of Protection talks about persons who are incapacitated.  It’s not meant to be derogatory in any way”.

The exact details were not shared with the court, but it is understood that following the mother’s death in December 2021, there were “concerns” within the family about how Ms J handled the estate.  “The trust has broken down” is how Karen Reid, the barrister representing the sister Ms E, explained it.

She added: “Really this comes down to the lack of transparency that’s come from [Ms J].  That makes [Ms E] understandably suspicious as to what her intent is in becoming her father’s deputy.“

An incident that occurred at the care home, when both sisters visited at the same time, was also referred to.

DJ Grosse explained that the court had various options available in choosing a deputy but emphasised that “what the court has to consider is what is in the best interest of your father, not the parties: he is the number one”.

Appointing the sisters either on an individual or joint basis was considered along with the use of a paid professional known as a Panel Deputy. 

In support of her appointment, Ms J, appearing unrepresented (as a Litigant in Person), told the court that prior to the loss of P’s capacity she “was doing everything for Dadall I want is to make sure that Dad’s finances are looked after and there is something for his end of life.”

For the other sister, Ms Reid explained that her “client is willing to act as a deputy; nobody is saying she is not in a position to be able to act, to manage fairly limited affairs.  She is not interested in the money; she wants his care to be conducted properly…she would be ideally placed to act as his deputy“.

In handing down her Judgment, District Judge Lorna Grosse said that the “Court is required to consider the views of those nearest to P and to consult the family.”  She cited Section 16 of the Mental Capacity Act 2005 and explained that “the court has power to appoint a deputy if it feels it’s in the best interests of P.

The concern in this case is that there is friction in the family” and – after citing the decision in Re: BN [2015] EWCOP 11 (02 March 2015) –  DJ Grosse concluded that “where there is friction in the family the court should consider departing from a close family member” but “to have his estate [of £18k] really diminished by professional fees… is not in his best interests”.

Not only would P not want his funds depleted, “neither would he want his children squabbling … he would be very upset if he knew there was a difference of opinion in the three people he loves best in all the world” said DJ Grosse, including a brother, who was not present, in the picture.

As there are no issues in respect of the competence and integrity” of both of the sisters “but there are issues with the two working together”, the judge decided to appoint just one.  Explaining that Ms J had made the application, paid the fee, and “done a great deal of leg work in respect of her father, the court takes the view she should be appointed as the deputy.

The court would urge her to liaise with her siblings.  It’s really for the benefit of her father, if she can’t do it for herself.

The Judge concluded this 57-minute-hearing by telling Ms E to “just enjoy his last period of his life and be glad you’re not doing the donkey work.  It’s not great fun being a deputy.”

Open Justice

As seems to be normal at First Avenue House, some information about the issues before the court  was mentioned on the Daily Cause list.

I noted when I went into First Avenue House in Holborne, where the hearing took place,  that none of the COP lists were displayed on the board adjacent to the main entrance. This meant members of the public passing wouldn’t have seen there was a 2pm “PUBLIC HEARING WITH REPORTING RESTRICTIONS”.

Upon arriving at the COP Enquiry counter on the fifth floor, I was asked to sign a sheet confirming I had received the Transparency Order.  The first two rows contained the names of the sisters, and I was asked to put my name, reason for attending and my home address.  The sisters had managed to avoid putting their addresses down, a strategy I sought to copy – “I’d rather not put my address”.  “But this is a public hearing” came the response.  I still don’t follow the logic.  

I was told they would check with the Judge and a few minutes later I was approached by the Clerk in the waiting area who confirmed “you will need to provide an address to observe the hearing”.  We agreed that I could put my address on the second page so at least it wouldn’t be immediately visible to others. 

I have a few concerns about this and not just from the GDPR/data protection angle.

I take the view that any derogation to the principle of Open Justice can only be justified by the test of necessity, particularly a requirement which has been introduced, seemingly, without consultation or jurisdiction from an authority.  

Derogations to Open Justice can be a slippery slope and if it’s accepted that a home address is required to be given, then it’s a short step to having to verify the address with photo ID and a utility bill.

The then Master of the Rolls Lord Woolf warned against the erosion of open justice and that “the need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion” (§4 T (A Firm of Solicitors), R (on the application of) v Legal Aid Board [1998] EWCA Civ 958 (10 June 1998)

Further enquiries will be made with the court as to the source and justification of this supposed rule. 

Daniel Cloake is a blogger and news gatherer with a keen interest in Open Justice and the niche and the nuanced. This post was originally published on his own site, “The Mouse in the Court” (where you can read his many other blog posts).  He tweets @MouseInTheCourt

Photo by Robert Keane on Unsplash

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