By Celia Kitzinger, 25th June 2022
The protected party at the centre of this case (P) has dementia and Parkinson’s Disease. He’s in a care home and he wants to return home. The difficulty is that his wife, who lives in the house of which he is sole owner, is (allegedly) abusive and subjects him to coercive and controlling behaviour. She also impedes the delivery of care to him.
The applicant local authority is asking the court to make orders that P’s wife ( W ) must move out of the house, and that her contact with him should be restricted. The local authority believes that it’s in P’s best interests to live at the property, but not with W – whose influence over him is such as to overbear his capacitous decisions on contact and residence.
The hearing I observed (COP 13861341, before Sir Jonathan Cohen, 13th June 2022, via MS Teams) was supposed to be a final hearing.
Neither got off the ground, largely because of concerns that W was disadvantaged by not having legal representation. It was also obvious that a remote hearing would not work well due to interpretation issues.
W was not represented at this hearing either – because she’d declined the offer of legal representation (to be paid for by her husband’s Deputy).
In fact, she wasn’t initially planning even to attend it.
When the case was called on at 10.56 (a 26-minute delay caused by “unavailability of staff at the court”), W was not in court, and nobody knew where she was.
Although W was eventually located, and she joined the hearing with her interpreter shortly before noon. the hearing was abandoned shortly before 1pm as it was agreed that it could not be effective. The judge said:
“I’m sorry for P, and sorry for all the professionals involved, that as a result of W not attending court, and not telling people in advance that she was not attending court, that we are now going to have to put the case over.”
The failure to hear this case, for the third time, means that P remains in the care home instead of returning to his house as both the Official Solicitor and the local authority believe is in his best interests. He’s been in the care home for nearly 6 months now.
The next hearing – again, a “final” hearing – will be in-person (or ‘hybrid’, i.e. in-person, but with only P attending remotely from the care home) at the Royal Courts of Justice on Monday 27th June 2022.
What went wrong?
It was very unfortunate – though nobody’s ‘fault’ – that arrangements for hearing this case were changed at short notice such that it was moved from an in-person to a remote hearing (and from a full-day hearing to a half-day hearing).
This was bad news for the case, for which specific arrangements had been made to ensure an in-person hearing (and an all-day hearing to allow time for the interpretation).
According to counsel for the applicant local authority (Michael Paget of Cornerstone Chambers) the plan had been that this hearing would be in person, in the Royal Courts of Justice, before Mr Justice Hayden.
Then, on the Friday before this Monday morning hearing, parties were notified that Hayden J was tied up with a part-heard case: the hearing would instead be before Sir Jonathan Cohen. It would be held remotely because, as Cohen J explained at the beginning of this hearing, he was working from home due to “isolating following COVID-19”.
The solicitor for the local authority sent a letter, translated into W’s own language, by way of a process server, delivered at 7.50pm on Saturday evening. It explained the changed arrangements and asked W to attend Mr Paget’s chambers instead of the RCJ.
The plan was to provide her with a conference room and a computer link in chambers so that she could attend the hearing on the video-platform (instead of via telephone as previously). As counsel for the local authority said, “face to face would be most appropriate and it’s unfortunate that it was modified, but a video-platform is the next best option”.
The interpreter had also been asked to go to Cornerstone Chambers, so that she would be present in the same room as W to enable interpretation to run more smoothly (see previous blog for the problems of interpretation at earlier hearings).
But at the start of this hearing, neither W nor her interpreter had arrived at Cornerstone Chambers. The interpreter was on the video-platform, but was not able to say where W was.
The judge asked a member of the court staff to “check whether she’s in the RCJ – outside Mr Justice Hayden’s court or outside my court”, adding: “Can someone explain to P what is going on – he must be wondering what on earth is going on”. (P was on the video-link, attending from the care home).
At 11.06, we received the news that the staff member had not found W outside either courtroom.
“She may be at Number 15 [P’s home]” said counsel for the local authority. “So, the next step is for someone in my team to go there”.
There was then some discussion about how long that would take and that’s the point at which it emerged that – contrary (as I understand it) to the original plan – the hearing was listed only for the morning, and Sir Jonathan Cohen had another hearing at 2pm. The hearing was adjourned for half an hour (until 11.45am) in the hope that W could be found.
Cohen J seemed sceptical that W’s non-attendance could be attributed to these changed arrangements.
“It wouldn’t be satisfactory going ahead with this case when there’s an absence and there’s been a change of circumstances – though whether the change of circumstances has anything to do with her absence is another question.” (Judge)
Deciding that a hearing today would be ineffective
At 11.45, W was on the platform, as before via phone and as before without any other channel of communication with her interpreter.
There was then a wait to get the interpreter back online. The hearing resumed at 11.59am.
It was established that P’s wife was “attending via phone at the property” (i.e. Number 15, P’s house).
The judge asked her why she had not attended the hearing at the listed start time. (His method of questioning was unusual compared with other judges I’ve watched in that he often addressed the interpreter directly, referring to W as “she”, instead of speaking directly to W through the interpreter).
Judge: (to interpreter) Can she tell us please why she was not available at half past ten.
Wife: Half past ten today, do you mean?
Judge: That is when the hearing was due to take place.
Wife: Because I told them that I don’t have money to travel to the court and someone gave me a card to withdraw some money but when I tried to withdraw the money, there was no money on the card.
Judge: (to counsel) How are we going to deal with this, given it’s now 12 o’clock and I have another case coming in at 2pm for an hour, and everything is being interpreted in a manner that means everything is going to have to stop for W.
Wife: I’m sorry about that. That’s because I didn’t have money so I could not travel there. I didn’t have another choice.
Judge: Can we have an effective hearing?
Paget: The hearing can’t be effective, and it’s suggested it be relisted as soon as possible for an attended hearing.
Judge: That won’t deal with the problem of interpretation. It’s not an effective use of time if every time you say something there has to be a break while there is a translation.
Paget: Yes, My Lord, it will be slow, but that is a consequence of having an interpreter, and that has been factored in in asking for a one-day hearing. We would ask for it to be relisted in short order.
Judge: How are we going to avoid the problem next time of her saying she doesn’t have the money?
Paget: We don’t accept that, but we can make sure she has a taxi organised, so that if she chooses to, she can attend.
Judge: Will she be coming alone or will someone from the local authority escort her.
Paget: We can arrange for a taxi to be organised or make an alternative practical arrangement like local authority personnel going with her. She may not want that, but we can offer it.
Judge: Madam Translator, can you interpret that.
The judge then asked Sian Davies, counsel for P via his litigation friend the Official Solicitor, whether she also “accepted this matter will have to go off” (i.e. not be heard today). She did – and added that it should be listed as an attended hearing (or hybrid, so that P can attend). “It wouldn’t have made the slightest bit of different if it hadn’t been changed, would it?” said the judge. Counsel’s response was tactful.
Davies: Unfortunately, we haven’t had the full day allocation, for reasons I’m sure are understandable. The Official Solicitor reluctantly accepts this hearing is not able to proceed today. W is disadvantaged by being on telephone, and interpretation makes it complicated. This is a matter of concern. P wishes to go home, and further delay is not consistent with the wish he’s expressing. But for practical reasons as outlined, the matter can’t proceed today.
P’s daughter, who was also present (but not a party) was asked for her views and said she agreed with the Official Solicitor. “I would like to proceed quickly, because my father would like to move, but I see why we can’t today”.
Legal representation for W
While the court was waiting as the judge’s clerk contacted Listings to see when another day could be found to hear this case, Sian Davies raised the issue of W’s legal representation.
W had said at the last hearing that she did not wish to have legal representation, despite the fact that the local authority, in its role as P’s interim Deputy, had confirmed that it would fund it.
The local authority had given W a translated letter explaining that she should seek legal advice and providing the contact details of specialist firms (who would be paid by the Deputy). She has declined.
“The fact that this matter has been adjourned gives her the opportunity to reconsider”, said Sian Davies, “and I would invite the local authority to confirm that funding is still available”. “It is”, said Michael Paget, for the local authority.
The judge checked whether the funding was for advice only, or for advice and representation (the latter) and then engaged with W (via the interpreter).
Judge: Let me ask you, W. You were offered the chance to obtain legal representation. Would you like to have legal representation at the next hearing?
Wife: No, I prefer everything simple.
Judge: Well, it’s perfectly simple having a representative speak for you, and it’s being offered to you without you having to pay for it.
Wife: I know about that, but I am receiving lots of support from the government and I don’t want to waste the money from the government. If I need help, I will ask.
Judge: You’re not wasting money from the government. (To the interpreter) It’s a matter entirely for her, but most people benefit by being represented.
Wife: Yes, I understand that. I know. I understand everything and I also understand what I am doing and where I am. For that reason, I would like to say thank you to the people who are supporting me, and thank you to the family who are taking care of my children.
Judge: I’m not sure I understand the answer in relation to representation.
Interpreter: “I understand everything and I also understand what I am doing and where I am. For that reason, I would like to say thank you to the people who are supporting me, and thank you to the family who are taking care of my children.”
Judge: (to interpreter) The question I asked is whether she would like to have a solicitor and barrister to speak for her.
Wife: My answer is no.
Arranging the next hearing
“My clerk comes bearing news”, said the judge.
The clerk reported there were two possible dates for the next hearing: 23rd June or 27th June.
It turned out that there was only one witness to be called – the social worker – and there was then some delay as her availability on one or other of those dates needed to be ascertained. It wasn’t straightforward to reach the social worker since it was she who had travelled across London to the property where W is living to enable her to join the hearing. (“She’s in transit, is she?”, asked the judge. “I’m not sure…” said Michael Paget.)
While attempts were being made to contact the social worker, the judge outlined what he wanted included in the order.
Judge: I want a recital that [Social Worker] is anticipated to be the only witness, other than [Wife]. I assume the daughter hasn’t filed a statement? [No.]. I want a statement that a final declaration has already been made as to capacity. And a recital that this hearing has been frustrated by W not attending the hearing, and having only been ascertained to be at home shortly before midday, claiming that she did not have the funds to attend in central London. There will be an order that the local authority must make arrangements for transporting W to the RCJ for her to arrive at the RCJ by 10am on whatever date it is. And that the second respondent [W] must attend, and that if she does not, an order may be made in her absence. If only I can be told on what date.
Paget: I’m sorry I haven’t received that confirmation yet.
And then the confirmation came through from the social worker. The next hearing would be on 27th June 2022.
The judge repeated for W’s benefit the information that the local authority would arrange “an Uber or a taxi or some other means of transport to get her to the hearing and will likewise provide her with a means of money to get back at the end of the hearing”. He added, “I am ordering that she attends the next hearing. If she does not attend, then she will be in breach of a court order. I think it would be sensible for the local authority to make sure W knows the identity of the court number the day before. Simply dropping someone at the RCJ is not necessarily an easy experience for those who are completely unfamiliar.”
The wife’s response was to protest that she “was never against the law – it was just because I didn’t have money” and to say that she needs more money. “Everything is broken. I need support in terms of finance on a daily basis. I know what I am doing, where I am going. The only thing I want support with is to open my husband’s bank account so I can use it for my daily essentials.”
P himself also spoke to the judge saying, “W needs money, and I don’t need money. Can you get her some funding?”. (He also asked to see the bundle of documents before the next hearing.) The judge said: “I understand your concern about your wife not having any funds and that will be a subject of discussion with the local authority to sort this out”.
The judge ensured that W knew the name of the interim Deputy and how to contact them for money.
He also urged the parties to make sure that the court has booked an interpreter for 27th June 2022 (to attend in person in the court).
He was clearly concerned to do whatever he could to ensure that the next hearing – unlike the three preceding it – should be effective.
I was dismayed to witness a whole morning of court time before a Tier 3 judge with so little achieved.
The cost to the public purse of this ineffective hearing (and the two ineffective hearings preceding it) included the time and labour of: a senior judge, two barristers, two solicitors, a social worker, an interpreter, a care home worker (supporting P’s access), a court clerk and court staff.
The cost is not only financial.
P remains stuck in a care home he doesn’t want to be in and which nobody thinks is in his best interests.
The judge at this hearing was clearly frustrated.
The barristers displayed meticulous forbearance but were obviously disappointed (given what had happened at the previous two ineffective hearings) to find themselves yet again in an MS Teams hearing with wildly unsuitable arrangements for interpretation.
The solicitor for the local authority seems to have done everything he could (in terms of contacting W and trying to arrange for her to attend via video-link from chambers) – and this must have involved some frantic work over the weekend. All that effort to no useful end!
It was pretty clear from the outset that the revised arrangements for this hearing were not going to work. It’s deeply unfortunate that it was ever transferred from an in-person to a remote hearing.
It’s all very well to say, as the judge did, that this hearing wouldn’t have worked even if it had been in person as originally contemplated, since, in his view, W would not have attended the RCJ for the same reasons she failed to attend the video-hearing via a link in chambers. But the late change in arrangements makes it hard to hold W solely responsible for the ineffectiveness of this hearing.
The next hearing will no doubt be a slow and frustrating process, not just because of the need for time-consuming interpretation, but also because of W’s decision to decline the offer of legal representation.
I have not heard anything from her which amounts to an effective argument for her position – which I understand to be that she wishes to live with her husband in what an earlier judge in this case referred to as “the matrimonial home”.
If W had a legal team representing her, counsel would no doubt mount an Article 8 argument about the way in which the draft order interferes with her (and her husband’s?) right to family life.
Counsel for W would also have the opportunity to challenge the allegations against her that she has abused P physically, emotionally and financially. These allegations form the basis of the applicant local authority’s “pattern of behaviour” document, which is relied upon in support of its application for an injunction excluding W from the property. (“Controlling or coercive behaviour” is defined legally as taking place “repeatedly or continuously” and courts may look for a “pattern of behaviour” established over a period of time rather than a few isolated incidents.)
There has so far been very little said in court about this alleged abuse. I think the social worker will give oral evidence about it at the next hearing, and there was some discussion (at a previous hearing) about the opportunity for W to cross-question the social worker’s evidence. It is apparent that cross-questioning a witness is something W is ill-equipped to do as a Litigant in Person, and that the opportunity for a fair trial would be massively improved if counsel could do this on her behalf. But since she has refused legal representation, that won’t happen.
In an earlier blog post about this case, I reflected on the importance of “Fairness in court for a Litigant in Person”. I quoted from the Equal Treatment Bench Book to illustrate the responsibility judges have, when faced with unrepresented parties, to ensure that they are treated fairly. In my experience, judges do this exceptionally well, but it’s time-consuming and involves a great deal of work from judges and counsel alike.
In my view (I said) “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 in this case, that’s been tried – and it’s failed because W has declined legal representation.
When W said she didn’t want lawyers because she “prefer[s] everything simple”, I was immediately struck by how complicated her decision will make the next hearing, both for counsel and for the judge.
Assuming, of course, that she attends.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia