By Claire Martin, 8 February 2023
The hearing I observed, in person at Newcastle County Court, was about whether Mrs Lioubov Macpherson, who is the mother of a protected party in Court of Protection hearings, should receive a prison sentence for breaching court orders.
She has been ordered not to post videos and images of her daughter (FP) on social media and to take down material she’s already posted. She had refused to comply.
Lioubov Macpherson believes that her daughter is being mistreated at her current placement – in particular that one of the medications her daughter is being given causes the psychosis it is supposed to treat. Her social media posts are designed to demonstrate the nature of her concerns to members of the public. She wants, she says, “ to show the distress that my daughter suffers daily, because so-called professionals keep my daughter in deliberately induced illnesses to suit the agenda that she lacks mental capacity“. She refers to her daughter’s treatment as “torture” (all quoted in the judgment, Sunderland City Council v Lioubov Macpherson  EWCOP 3).
Some of the material she has posted shows her daughter’s face (usually pixelated) but often it’s just her voice – because the contact between them is now limited to phone conversations and it’s those that she records. Members of staff at the placement are sometimes audible too, because they are monitoring phone conversations to prevent certain topics being discussed between mother and daughter. She had also named her daughter’s care home in some of her posts.
At an earlier hearing, Mr Justice Poole said that it was ”demeaning to FP and a breach of her right to privacy to film her and then post recordings for others to see”. She had been ordered to remove video and audio recordings from You Tube and any other social media platform, whether posted privately or publicly, by noon on 30 June 2022. She had not done so, and since a ‘penal notice’ had been attached to the order, she was now in court.
Background to the case
Prior to the hearing I observed, there was a hearing on 28-30 June 2022, before Mr Justice Poole. It concerned the following (from the judgment):
“The challenging issue for the court to determine in this case is whether it is in the best interests of a vulnerable 36 year old woman, FP, …… to be deprived of direct contact with her mother, [Lioubov Macpherson], with whom she wants to have contact, for a period of at least five months. [Lioubov Macpherson’s] behaviour forms the basis of the Local Authority’s application to prohibit contact with her daughter for a long interim period, and her behaviour as an unrepresented party made it very difficult to manage the hearing of the application before this court. [Lioubov Macpherson] showed no respect for the authority of the court and no appreciation of the need to ensure a fair hearing for all concerned.” (§1, SCC v FP & Ors  EWCOP 30)
The outcome of that hearing was that Luba (the shortened name she goes by which she tells us she is content for us to use in blogs) and her daughter were restricted to one half-hour supervised, telephone call a fortnight, for a period of five months. Luba was restricted in terms of the content of conversation with FP. As mentioned above, there was also a court order for Luba not to video- or audio-record FP (or any staff) or publish any recordings on social media and to remove those she’d already posted. This judgment was to be reviewed in December 2022, and was adjourned until the hearing we observed on 16th January 2023.
I read Mr Justice Poole’s judgment prior to attending court. HHJ Moir’s judgment has not been published – and it was on this judgment that many of Poole J’s findings relied. So I don’t know how HHJ Moir reached her judgment. I believe that judgment may be published in due course (as requested during the course of the hearing by Celia Kitzinger).
The full background to this case is available in Mr Justice Poole’s earlier judgment of 30 June 2022, SCC v FP and others  EWCOP 30. It relies on HHJ Moir’s judgment which made various findings against Luba which she continues to dispute (e.g. that she has an “enmeshed relationship” with her daughter, that their interaction displays “high expressed emotion” and that “the dynamics of the relationship” have a negative effect on FP leading to “increased agitation and a decline in her mental health” (§3 Poole J quoting from HHJ Moir’s judgment). This is why the court has restricted Luba’s contact with FP to phone conversations only, and care staff are supposed to terminate contact when she talks to her daughter about the harm that she believes her daughter is suffering at the hands of those charged with caring for her.
According to the judge, who watched the recordings that Luba posted on social media:
“The published recordings disclose conduct that is harmful to FP. The Defendant manipulates conversations with her vulnerable daughter and feeds her the line that she is being harmed by those caring for her and by her medication. Since FP has paranoid schizophrenia and believes she is being persecuted, the line fed to her by the Defendant is particularly dangerous to the mental health of her daughter.” (§54, Sunderland City Council v. Lioubov Macpherson  EWCOP 3)
A journalist’s account of the case is also published here (“Sunderland mum spared jail over ‘bizarre’ claims about daughter’s care”).
I knew that Luba would be in court and that she was now represented by Dr Oliver Lewis. (She’d had legal aid representation from a solicitor at the previous committal hearing, but she’d represented herself at all or most of the other hearings in the case.)
FP (Luba’s daughter) was represented, via her Litigation Friend the Official Solicitor, by Joseph O’Brien KC. Sunderland City Council was represented by Simon Garlick. Luba’s husband, ST, was also a respondent but was not at the hearing.
Arriving at Court and Finding the Right Courtroom
The hearing was listed for 2pm. I attended the hearing with Celia and on her advice we arrived at Newcastle County Court at 1pm. This was to allow plenty of time for the security process. I didn’t know what to expect. In the foyer were two airport-style body scanners and a conveyor belt with trays for belongings. Everything had to be put into those trays before walking through the body scanners.
My bag had to be emptied and items searched. I had got items in my bag that had to be taken away until after the hearing – a brush with a mirror (glass being the offending object) and a pair of tweezers. When I walked through the scanner, it beeped – I am still not sure why. A security official used a scanning wand to check I was safe to enter. Then I could take my bag and check-in my offending items by signing them in and getting a ticket to collect them later. This all took around 20 minutes – if the queue had been longer this could have taken a considerable amount of time. I made a mental note to always leave lots of time in future.
We hadn’t even found the correct court room yet. I assumed that would be a straightforward matter. Once through security, we spotted several rows of A4 notices on a board on the wall. They had the different courtroom numbers and cases being heard, with judges’ names and hearing numbers. Mr Justice Poole was not listed. What to do? A security guard suggested going to the first floor where courts and a reception desk were located. ‘Ask there’ he said.
The reception desk on the first floor was empty. The listing boards on the first floor also didn’t include the hearing we were looking for. There were people walking about – some looked as if they were trying to locate their court room (like us!), others looked like lawyers (dressed in smart dark suits) and were walking considerably more quickly and with purpose. There was a conspicuous absence of people whose job it was to ensure everyone knew where they were going. Perhaps these jobs don’t exist – or perhaps it was lunchbreak? We managed to intercept one person, a lawyer I think, who said she was really not sure but pointed us to a waiting area.
The waiting area also had boards with listings, but ours wasn’t on these either. Celia attempted to identify whether the lawyers from the hearing we hoped to observe were in any of the six small consulting rooms (with small windows in them) leading off the waiting area, but was unsuccessful. Celia went off on a hunt and returned with a very helpful court official who explained that, for some unknown reason, the hearing we were observing had not been listed anywhere in the building. We were in the right place though and the courtroom we needed was adjacent to the waiting area.
At that point, we saw Joseph O’Brien, counsel for FP, arrive. Then we knew we were definitely in the right place.
The court official gave us the revised Transparency Order (though she first had to rip off part of the back page as it had accidently been printed with names of the people whose names we weren’t allowed to report). This was very helpful: we often don’t get Transparency Orders at all, despite requesting them (and nothing much has changed on that front in the last couple of years, see: “Transparency Orders”). The language is frightening, perhaps necessarily so. It tells us that if we ‘disobey’ the ‘injunction’ forbidding us from reporting certain details we ‘may be found guilty of contempt of court and may be sent to prison, fined or have [our] assets seized’. It also says we have the right to ask to have the order ‘varied or discharged’.
In fact, that is what the experienced journalist, Brian Farmer, had done in this case. He had written to the court saying that, in his view, the Practice Direction for committal hearings had not been complied with, either at the previous committal hearing or at this one. On both occasions, he said, the name of the person who might be sent to prison (the defendant, in this case Luba) should have been included in the public listing.
The Open Justice COP Project has reproduced Brian Farmer’s submission, along with an account of what led up to it and an earlier letter from both Brian Farmer and Celia Kitzinger expressing concern about the listing of Luba’s 8th December 2022 committal hearing (See: “Committal hearings and open justice in the Court of Protection”)
Poole J accepts that Luba‘s full name should have appeared in the list for the hearing of 8th December 2022 (§33 Sunderland City Council v Macpherson  EWCOP 3 (20 January 2023)). He had, at that point, made no order that it should be redacted. However, he subsequently did make an order restricting publication of Mrs Macpherson’s name, and extending the Transparency Order to cover the committal hearing – and so this hearing, on 16 January 2023 was listed without her name – which (as Brian Farmer points out) doesn’t seem compliant with the Practice Direction.
In committal hearings, the name of the defendant should normally be publicly available and there should be no reporting restriction preventing journalists or members of the public from publishing the defendant’s name. In the rare and “exceptional” circumstances where the court decides to make an exception and withhold the name of the defendant, there is a procedure to be followed (which includes notifying the press) which had not been followed here.
The court official asked me to sign a form that confirmed that I had read the Transparency Order. The form asked for an address which surprised and somewhat alarmed me. In remote hearings we are not asked for our addresses – but of course the court already has our email address (because that’s how we request the link to observe). It’s not clear to me why the court needs the address of an observer: I put an address at which I can be contacted, but not my home address.
It struck me, having read the previous judgment, that there was an inevitability to the fact of this committal hearing taking place. The judgment clearly outlines Luba’s strongly held beliefs, opposing FP’s diagnosis of paranoid schizophrenia and challenging the medication she is on. Knowing about Luba’s sustained attempts to garner public support for her cause via social media, when that injunction was put in place, it seemed predictable that she would not desist. Therefore, it seems axiomatic – given the injunction – that this application (to commit Luba to prison) was something that Sunderland City Council would have to pursue. So, here we were.
The judge entered via a separate door to the rest of us, a door at the back of the courtroom, behind the ‘bench’ (an elevated seat). The court clerk sat in front and below him on the same level as the rest of us. This physical hierarchy of the court works to establish the judge as a higher authority. We all have to look up to the judge’s chair.
Having said that, I thought that Mr Justice Poole, whilst commanding authority, conveyed a sense of approachability and reasonableness. He had certainly read all documents and had a grasp of the matters at hand, perhaps enabling him to convey an atmosphere of calm and containment.
He explained to the court that the hearing scheduled for 8 December 2022 had been adjourned to consider sentencing at this hearing. He said: “The defendant has admitted twelve breaches of the injunctive orders” (this was disputed by Luba).
Poole J then detailed the considerable complexities to be addressed, such as whether Luba had admitted to the breaches and how to proceed if she now wished to withdraw that (alleged) admission; the fact that Sunderland City Council confirmed it did not serve the injunction papers to Luba personally (as required) and, therefore, whether an adjournment should occur; the content of the Transparency Order and whether Luba’s name had to remain secret; and whether or not an appeal was still possible, given the history of the case.
After hearing from Simon Garlick (counsel for the Local Authority) Poole J. said that he’d already decided to ‘vary the order in order to permit the sharing of [Luba’s name]’. Having received the submission from Brian Farmer, all counsel were agreed that there was no reason to depart from the Practice Direction in that respect. Luba’s husband can also be named, as can Sunderland City Council. This meant that we can name Luba in our blogs and link to the previous judgement, without fear that we might be in breach of the order by ‘indirectly’ identifying FP.
Simon Garlick then went on to address which of the video-recordings Luba had posted on Facebook and YouTube were being pursued by the local authority as breaches of the court injunction, and thus contempt of court. He said the videos were still accessible on the internet.
Throughout this initial address, Luba sat very still and quietly. This was in contrast to how the judgment described her demeanour at the hearing in June 2022, at which Luba was unrepresented. It must have felt very difficult for her to feel heard and able to convey the importance of her views without legal representation. I wondered whether having representation at this hearing, in the form of a very experienced human rights barrister, was helpful for her to feel that someone had her best interests as a priority. Maybe this enabled her to listen to proceedings. It did lead me to think that, no matter how articulate and in possession of solid arguments we might think ourselves, the services of a barrister are likely to be invaluable, should we find ourselves in court.
The next part of the hearing entailed Oliver Lewis, counsel for Luba, presenting her case. He informed the judge that ‘there has been some progress’.
“I have persuaded my client to remove the Facebook page videos that name the care home. That is progress. I’m in the middle of discussions with my client, trying to persuade her to see that if the court finds that these do amount to contempt, then the nature of the possible sanctions include a prison sentence and she could face immediate imprisonment. I’m desperately trying to avoid that. I’ve explained it would be much easier for me to persuade the court not to send her to prison if she were able somehow to remove the videos. My Lord, we’re not there yet. My client’s position is that she sees herself (along with her husband) as the only person who is looking out for [FP], who is being tortured. She believes her daughter is being tortured and that the court has just not seen it. She disagrees with many of the orders from the court and sees it as her role to keep fighting for justice. So my client and I have discussed what kind of renegotiated outcome might be possible for the court to agree – such as an independent person, a psychiatrist or other expert to conduct a medication review. Because one of her chief complaints is that P is being tortured because she’s on the wrong medication. I have suggested that as something that other parties might be able to agree with. I am in the middle of that discussion with my client. I have tried to explain that it would be a better outcome for my client that she remains free and not in prison and in contact with [FP]. Her position is that her life has already been ruined, so has [FP’s] and her husband’s, so what does it matter if she gets sent to prison.”
A couple of times, Oliver Lewis turned to check things with Luba and at one point she said ‘… if I breached, I’ve got very good reason’. We learned that, in the previous two hours, Luba had removed the Facebook material naming the care home – but many other posts and video-recordings remained, including some which had recordings of care staff. Oliver Lewis requested a short adjournment to further discuss the issues with his client. I could see that he was working very hard to try to enable the court to find a reason not to commit Luba to prison.
When we resumed, Oliver Lewis raised a number of other points on behalf of his client including:
- a possible Court of Appeal application (but it transpired that permission to appeal had already been refused)
- the fact that FP’s capacity to consent to being recorded (and to those recordings being made publicly available) has never been assessed (her mother says she has capacity and does consent and therefore the court has no jurisdiction to prevent this), and
- that Luba had not, in fact, admitted the breaches (as stated in the published judgment) and that any apparent admissions were made by her solicitor without instruction (this claim seems later to have been withdrawn).
Keeping the focus on the protected party [FP] – even in this committal case – the judge expressed his own concern that “In this case I do have evidence that [FP] is aware that her mother may face prison and I can take into account the impact on her of knowing, if it transpired, that her mother had gone to prison.”
There was a break of around 30 minutes, until 4pm. The judge had previously said he had to leave the court by 4.30, so this was cutting things very fine. I have often witnessed judges trying their best to come to a resolution during a hearing, and, when pressed for time, over-running to achieve this goal. So many hearings are scheduled close to each other in time, and the whole system seems perpetually pressed for time and court space.
When the hearing resumed, Oliver Lewis said he was pleased to report that “All the videos on Facebook have been unpublished and are no longer available“, He also said “I have explained to Mrs Macpherson what an ‘admission’ means in law, and she’s instructed me that she has signed saying that she admits to uploading videos. … In our skeleton argument … we are not seeking to withdraw the admissions on the 8th December but to explain why she breached them.”
There was further discussion about what Oliver Lewis was seeking on behalf of Luba. He was very clear, notwithstanding other issues (such as seeking appeal), that his “job today is to ensure my client stays out of prison“. If the court were to decide on prison, he would be seeking an adjournment of the case. Oliver Lewis argued that ‘prison is too much for this breach’.
“My main point is that, now there’s no ongoing breach and we’ve fixed the problem – albeit I acknowledge there was a breach until today – this case has been fraught with emotions and the love for FP by her mother and vice versa is very important for both of them and the main point that the court in my submission should focus on is FP’s wishes and feelings. Although a committal decision is not a best interests decision, this is the Court of Protection, and should make a decision that is in line with her best interests… Sending her mother to prison would be contrary to FP’s wishes and feelings and cause a drastic deterioration in her mental health.” (Counsel for Luba)
Oliver Lewis cited the case of Theresa Kirk, who was sentenced to prison for contempt of court. In that case, Theresa Kirk had moved the protected party (her brother, MM) out of the country to prevent him being placed – in accordance with the court’s determination of his best interests – in a care home in England. She firmly believed she was protecting him. Her permission to appeal the committal was successful. Lord Justice McFarlane, in his judgement, said:
“I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it.” (§27 Devon County Council v. Kirk  EWCA Civ 1221)
I can see the similarities between the two cases. In Luba’s case, though, the ‘ultimate purpose of her incarceration’ was not really clear to me, especially in relation to any material impact on FP’s welfare.
Other committal hearings that we could find, mostly involve actions in contempt of court that are arguably worse than Luba’s. For example:
- P v Griffith  EWCOP 46 (02 October 2020) – forging court documents
- M, Re  EWCOP 42 (18 August 2016) – taking P out of the country (to Portugal) when ordered not to do so (this is the case referred to above) – and the successful appeal Devon County Council v. Kirk  EWCA Civ 1221)
- Derbyshire County Council v Danby  EWCOP B22 (15 April 2014) and Whiting, Re  EWCOP B27 (13 December 2013) and North Yorkshire County Council v Elliot – contact with P in defiance of a court order
My sense, at this point, was that no one, really, wanted to impose a prison sentence on Luba. However, the injunction not to make and post videos of FB had been (seemingly predictably) breached. The court was in something of a Catch-22. It had used its injunctive powers to try to prevent what it deemed were harmful videos of FP (and her carers) being made and shared on social media, I assume in the hope that this would be a deterrent for Luba.
Yet, as seems starkly clear from previous hearing and as Luba herself stated in this hearing, she believes she has ‘good reason’ to make and share these videos. This presents the court with a dilemma – to send her to prison (which would mean no contact with FP at all, likely a very distressing scenario for both mother and daughter) or not to send her to prison (thus rendering the injunctive orders toothless). (A fine was briefly considered and led to a short adjournment, but turned out not to be practicable.) I thought that Sunderland City Council had backed itself into a corner.
Counsel for Luba said that sending Luba to prison would be ‘futile with no useful consequence apart from signalling the court’s displeasure’. Further, Luba cares for her 71-year-old husband and there would be no care available were she imprisoned. He said that Luba’s own view was that her life has been ruined already and that sentencing her to a term of imprisonment would serve no useful purpose whatsoever, especially when she’s agreed to remove videos and taken sensible suggestions as to how case might progress. He continued:
“In my view, justice would not be served by sending my client to prison. It would be a wrong decision and signal to families of adult children who have disabilities that – of course everyone must obey a court order – but it would have a chilling effect on campaign groups and would mean that court is not taking into account the trauma that bringing up a disabled child has on Mrs Macpherson and her partner. A suspended sentence would be most appropriate. Contact would continue and there would be no effect on [FP’s] mental health.”
Joseph O’Brien (for FP via the Official Solicitor) said in court: “I don’t want a deterioration in her [FP’s] mental health. A young girl who loves her mother. I would not wish her mother to go to prison for something she understands her mother is doing for her.”
In the confines of the court, with her counsel imploring her to remove the offending videos from social media, Luba complied. I began to think, though, that she might start to feel differently when back at home, with restricted contact with her daughter, and still firmly of the belief that the care and treatment she is receiving is harming her.
Poole J expressed this concern later in the hearing: “My concern is that if a sentence is imposed but suspended, then if your client has not reflected on what she’s done, she needs to understand what the consequence would be“.
Would justice ever be served by sending Luba to prison for posting these videos? I have not seen the videos. In the hearing we were told that Luba would engage FP in conversation about her own (Luba’s) worries about her care, in a leading manner, which would then distress FP. For example, Poole J described one video of a telephone call between them in which Luba says to FP ‘I think you are in big, big danger, something is going on’. FP replies ‘I need a doctor’ and Luba says ‘Good girl’, to which FP replies ‘I think I am going to be killed’. Evidence has been presented that FP is often distressed after contact with Luba.
I sat in court wondering how on earth this can be resolved. There seems an unbridgeable chasm between the judicial, mental health and care systems’ views on the one hand, and Luba’s views and beliefs on the other, which Poole J. acknowledged were ‘sincerely held’. The diagnosis of paranoid schizophrenia (applied to Luba’s daughter) is contentious and disputed. There are no laboratory tests to diagnose it and it has been criticised conceptually by some scholars and social justice campaigners (see here and here). How do we differentiate Luba’s views from those potentially shared by many others, including within mental health care and research?
One thing Poole J said when giving his judgment was that Luba’s beliefs are ‘bizarre’ and that, although ‘sincerely held’, there is ‘no justification for acting on them’. I thought this was a curious statement. In his judgment, Poole J. said:
“The Defendant’s conduct has therefore placed the court in an invidious position. If she is imprisoned for her deliberate and repeated breaches of court orders designed to protect her daughter, the fact of the imprisonment may well cause distress to the very person the court has sought to protect. A sanction other than imprisonment risks sending a signal to the Defendant and to others that the court will tolerate deliberate breaches of its orders.” (§59 Sunderland City Council v Macpherson  EWCOP 3 (20 January 2023))
The final judgment was that the breaches ‘justif[ied] a custodial sentence of 28 days’. Noting the potential impact on Luba’s husband, Poole J. suspended the sentence for 12 months, on the condition that Luba does not further conduct herself in breach of court proceedings. She also has a right to appeal this judgment.
Observing a hearing in person (as opposed to remotely) was a really good opportunity to see the nuts and bolts of how hearings are conducted, the nuances of non-verbal communication between the various people in court and the feel of being in a place where justice is done. All of that is lost when only faces are on a screen on my computer at home. Just being with other people is really quite a nice experience. What is lost though, to an observer at an in-person hearing, is actually seeing the faces of all the people there, apart from the judge and their clerk. Observers sit at the back (or at least in this courtroom we did) and, along with everyone else, face the judge.
I can understand why many judges and counsel prefer in-person hearings. Particularly for counsel, their role isn’t just stating a case, it is a performance as well – and elements of that performance disappear when they are reduced to a cell on a 6-square screen, or via telephone. I wonder what Ps and their families and supporters think? Do we know? That would be helpful to understand. When is it helpful to have an in-person hearing, and when not – from the perspective of Ps who are able to express a view? P is, after all, the focus of the work of the Court of Protection. In a recent blog that Open Justice Court of Protection has published, with P’s own account of his hearing (a first for the project), it seemed that, although the outcome for JH was a good one for him, his experience was that his hearing had been ‘sprung’ upon him: “I was told the Judge would call me at 9am on Tuesday, the next morning. At this point we still didn’t realise that it was an actual hearing as I was told it was just a chat with the judge. … I felt angry that it had been sprung upon me“.
I don’t think the court proceedings were ‘sprung’ upon Luba, although it was clear from the discussions in the hearing that she had enlisted the services of Oliver Lewis pretty hastily. I felt privileged to observe how Luba was supported by her barrister in what was, essentially, a stand-off between her and the system. I observed him speaking to her respectfully, checking things out, using non-verbal communication to reassure her throughout the hearing. This is in parallel to taking the role of presenting her case to the judge. It is one thing putting forward an argument, it is another supporting (at the same time) someone quite vulnerable (as well as potentially confrontational due to a firm belief that they are doing the right thing). Oliver Lewis himself was accompanied by a junior colleague who sat beside Luba throughout, so she had two people officially in her corner. Perhaps care and support enabled her to refrain from interrupting proceedings as she had done in previous hearings. I have observed litigants in person (LIP) in previous hearings (one hearing I observed had eight LIPs!) and thought how hard it must be for people, unfamiliar with court proceedings, there due to a difficult, contentious and usually emotionally charged reason, to know (and therefore follow) court etiquette.
The judgment: what else could the judge have done? I agreed with his decision. Given that the penal notice route had been taken, he had no option. Luba had, albeit late in the day (and with some persuasion from her counsel, and clear explanation of what might happen if she didn’t) removed all of the video and audio recordings from public platforms. My understanding was that this left him with a bit of wriggle room and he could suspend the sentence.
However, I am left wondering whether Sunderland City Council would do anything differently, were they able to rewind the clock and do it all again. Listening to the reasons for not incarcerating Luba (mainly so as not to distress FP, as well as enabling her (Luba) to continue to care for her husband) I couldn’t really understand why the recordings (and their publication) had been part of the injunctive order. FP did not know (or the court thought she did not know) about the recordings – she therefore did not know they had been posted online. That is not to say it wasn’t an intrusion into her right to privacy (Article 8 rights); though Luba would contest that claim: she believes that FP has capacity to decide to be recorded and share those recordings and that FP had consented. What seemed more harmful to FP though (from the Council’s perspective) was Luba’s influence and what they described as ‘manipulation’ of FP. It felt as if they had got themselves into a pickle over the recordings when maybe it is the contact (i.e. the actual experience of FP) that should be the focus. Luba was still allowed contact with FP, and I couldn’t understand how threatening Luba with jail would foster a situation where she might temper her conversations with FP? Surely it is more likely to inflame her views and become more entrenched in her position.
Oliver Lewis was trying to explore whether Luba would accept an independent assessment of FP, from a clinician acceptable to her. I did think this was a sensible line of enquiry, to potentially mediate the relationship between Luba and the system, with the aim of enabling their (Luba and FP’s) relationship to continue with less external control over time. Of course, there is a possibility that Luba would accept no assessment that did not accord with her view of FP’s difficulties. You could, though, say that about ‘the system’ too!
I have heard judges talk about what can be done legally, not necessarily having to be done. There are always decisions to be made. I am not convinced that turning down this road was the right route to take. Especially given Luba’s fierce certainty of her position.
I really hope Luba manages to stick to the court order and not breach her suspended sentence so that she and her daughter can spend time together that they can both enjoy.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin