By Bridget Penhale, 28th June 2022
After reading previous OJCOP blogs on the circumstances of this case (the most recent is here, and there are two earlier ones) I was keen to attend this hearing (COP 13861341 before Mr. Justice Francis) on Monday 27th June.
It concerns a protected party (P) who has dementia and Parkinson’s Disease.
According to the previous blog post, 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 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 about contact and residence.” (When P can’t go home to his “abusive” wife: Another ineffective hearing)
P’s wife was contesting the order. She wants to remain living in P’s house, and will not voluntarily leave (despite being offered alternative accommodation paid for by her husband) and she wants unrestricted contact with P.
So, this hearing was expected to be a contested hearing, with a social worker giving evidence about W’s behaviour towards P – her abusive, coercive and controlling behaviour – in support of the local authority’s application.
I have a particular professional interest (from a social work perspective) in matters relating to older people and capacity, including those involving alleged or potential abuse. I was therefore interested to hear more about this aspect of the case, especially as abuse against older men happens less often than against older women. Much of my academic career has been spent working on issues of violence, abuse, neglect and exploitation, with a particular focus on elder abuse and intimate partner violence and older people. (For more information about these interests and selected publications check out my webpage.)
Gaining access to the hearing was relatively straightforward – an email sent the previous evening requesting access was responded to shortly before the hearing was due to begin. After a short wait in the ‘lobby’ I was admitted without any further checks.
The start of the hearing was delayed by some 40 minutes, without any explanation to the observers, and online observers were left watching a largely empty court-room and P, the only person visible on screen, as he waited for the hearing to begin.
In the event, once it started the hearing was brief and it again evidenced the work that can take place outside of a hearing, in the shadow of impending judgment.
Counsel for the applicant (Michael Paget), for the local authority, thanked the judge for the extra time before the hearing, and announced that a potential agreement had been reached.
The represented parties (the local authority, and P via his litigation friend the Official Solicitor, Sian Davies), who were in agreement at the previous hearing, had now slightly amended their position after discussion with P’s wife – the second respondent and a Litigant in Person – just prior to the hearing. And they had secured her agreement to an amended draft order.
So instead of hearing evidence and launching into a contested hearing, there was an agreed draft order to be discussed.
The original draft order had prohibited all contact between P and W, but this was now to be modified with the addition of “save by letter or phone contact and must seek a prior agreement from the applicant for any face-to-face contact”. There was also provision to undertake a review in three months to see how contact arrangements were working and to review P’s care package at home.
The judge was clearly pleased about this turn of events and, as he had been the judge in earlier hearings, was knowledgeable about the circumstances of the case and keen both to pursue and endorse the positive outcome.
The judge did not address P directly, other than to confirm that P could see and hear the proceedings from the outset, and thus P’s involvement was via his legal representative Sian Davies. She said she was “supportive of there being an agreed rather than an opposed order, because an imposed order brings with it the potential of it not being complied with. The OS considers there is a greater prospect of success if the order is agreed, rather than with an unwilling respondent”. She said that P currently receives phone calls from his wife “and that doesn’t appear to cause him any difficulty, so stopping phone calls may be a restriction too far”. She said that contact with his wife was also “in keeping with P’s wishes”.
It was pleasing to see the care Francis, J took to ensure the wife’s participation in the hearing (through her interpreter). This level of involvement was needed for the judge to satisfy himself that P’s wife was aware of, understood and in agreement with the terms of the order before a decision was reached by him to (as he put it) “give the order my blessing”.
Care was also taken to explain to P’s wife what the penal notice attached to the injunction that was to be made meant. The judge said: “I’m being invited to make an order which has a penal notice attached to it. The effect of a penal notice, if a judge were to decide that there had been a deliberate breach, could result in an application being made to the court, and in some very serious circumstances a judge can send someone to prison for breaching an order. Have you had that explained to you?”. She said she had.
The judge also explained that W would continue to have the right to seek legal advice and representation in future.
“I know on two previous occasions I encouraged you to seek advice from a lawyer – and it was made clear to you that the costs of that lawyer would have been met. When the review comes up that Mr Paget referred to a moment ago, you may then want to speak to a lawyer. If you do need a lawyer, or want a lawyer, then you should ask those representing P or the local authority or those managing his affairs.”
At this point the sound quality in the courtroom dipped but it seemed that W indicated that she might know someone able to offer her such representation in future (in a few months) to help resolve the issues.
The discussion about the order also included the Deputy’s difficulties in obtaining access to P’s finance through his bank (which led the judge also to make an order requiring the bank to comply).
The judge’s courtesy and his personable and human approach – yet with necessary attention to detail – was evident throughout this brief hearing.
This hearing took around 30 minutes and the judge concluded the proceedings by stating that he hoped that he would not see the matter before the court again (as this would mean that the issues were satisfactorily resolved).
I was left feeling somewhat less optimistic. Despite being a latecomer to this case, previous information (from blogs) had strongly suggested that this was far from being an easy and straightforward set of difficulties to resolve and that problems had been a long time in the making. For matters to have reached the Court in the first place indicates a certain level of intractability. The apparent ease with which agreement was eventually reached (as presented in the course of this hearing) appeared to me to be somewhat unlikely to be maintained in future. My unease was particularly in relation to knowledge and experience of issues relating to abuse, coercive control and contact arrangements.
I also felt a sense of an agreement being reached for a specific purpose but one that was likely to be far more difficult to put into practice and sustain than anticipated. I hope I’m proved wrong!
Bridget Penhale is Reader Emerita at the University of East Anglia, Norwich and an independent consultant on elder abuse, adult safeguarding and adult social care. She tweets @bpenhale
 We are not allowed to audio-record hearings, so all quotations from what was said in court are based on notes made at the time and are unlikely to be entirely accurate.