By Celia Kitzinger, 20th March 2023
At a closed hearing by telephone, out-of-hours on Saturday 25th February 2023, Mr Justice Hayden granted an order that it was in P’s best interests to be removed from the home where she lives with her sister (Q) and taken to an emergency placement.
Mr Justice Hayden also approved an injunction against P’s sister saying that she must not prevent or obstruct that move.
The local authority, the Royal Borough of Greenwich, hadn’t told Q that they were making this application. She didn’t know that the hearing was happening and was not invited to attend. She is a litigant in person in ongoing Court of Protection proceedings and she was deliberately excluded from the Saturday hearing.
I didn’t observe this hearing. It was arranged at short notice, never appeared in any lists, and I doubt – even if I had known about it – that it was open to members of the public or to journalists.
The hearing I did watch, COP 13490547 on 6th March 2023 before Mrs Justice Arbuthnot, arose out of this earlier hearing and the events that followed.
What had happened after the urgent closed hearing?
Presumably the first Q knew about any of this was when officials turned up with the court orders on 1st March 2023 and took her sister away.
Counsel reported that it had all “proceeded peacefully and without incident or obstruction” and P was “not visibly upset” but “came with the social worker willingly and has settled in well” at the emergency placement – whose location has still not (at the time of the return hearing) been disclosed to Q or to other members of P’s family.
What precipitated the urgent closed hearing?
The woman at the centre of this case (P) is in her sixties. She has Downs Syndrome, a “significant” learning disability, and autism. She was described as “non-verbal and registered blind”. She was initially living with her parents, and then with her brother until 2018, when he couldn’t cope anymore. She was then in residential accommodation (with the Royal Borough of Greenwich) for a period, since when she’s been living with her sister – and the circumstances under which P moved from the placement to live with her sister are disputed.
Before the emergency hearing, there was already a case concerning P in the Court of Protection, before District Judge Grosse. It had started in February 2022 and concerned two matters:
1. an application from the local authority under s.16 Mental Capacity Act 2005 to determine P’s best interests in respect of residence, care and support (i.e. is it in P’s best interests to live with and be cared for by Q);
2. an application made by Q and her daughter (P’s niece) to be appointed as P’s joint Deputies for Property and Affairs.
Two days before the last hearing before the District Judge there was an “incident”. Q had been arrested on suspicion of assaulting a police officer.
And although both Q and her daughter had communicated with the court and the other parties ahead of the hearing on 23rd February 2023 (though they failed to attend the hearing) and they did not mention the incident or Q’s arrest. The local authority learnt about it from the police.
The police had interrupted Q’s grandson in the course of committing an alleged attempted robbery somewhere near the block of flats where P and Q live. He ran into their flat, pursued by the police, who were met at the door by Q who was “resistant” to allowing officers inside. When they did make their way inside, the grandson resisted arrest: he “fought officers, trying to assault them, screaming and shouting”.
Although Q had nothing to do with the robbery, it’s alleged (and she denies it) that she tried to assist her grandson in resisting arrest and that she “punched an officer in the face multiple times”. She was also arrested, and has been released on bail but has not been charged: it’s “under investigation”.
During this episode, according to the police, P was standing just inside the bathroom watching, and she appeared to be distressed: she was “visibly scared and rocking and shaking”. It’s also alleged that the grandson was keeping an exposed knife in the bedroom he was staying in.
When the local authority received the police report, they became seriously concerned for P’s safety, which is why they applied for the order to remove P, which was granted by Hayden J at the closed hearing on Saturday 25th February 2023.
The hearing of 6th March 2023
The key issue before the court was whether to authorise P’s continued residence in the placement (which is what the local authority and the Official Solicitor ask for), or whether to immediately authorise her return home (which is what Q wants).
And if the judge authorises P’s deprivation of liberty in the placement, then what is the plan for contact between P and Q (and the rest of the family)?
Applicant local authority
The applicant local authority (represented by Tara O’Leary of Cornerstone Barristers) said that P is “stable and settled” in her current placement. She’s “struck up a friendly relationship with another resident” and doesn’t appear to be distressed by being away from home. They don’t think it’s safe or in P’s best interests to return to her flat to live with her sister. They’re also concerned about visits from Q because, they say, when P was in another placement, Q simply took her away to her home unilaterally. “Given this history, and the strained relationship between the family and the local authority”, the local authority wanted to draw up a “contact plan” for supervised contact, and proposed to do so in the next 14 days. (The judge said that was a long time and asked them to sort it out within a week.)
Family
Two members of the family are in court: Q is a litigant in person and Q’s daughter is there to support her. Q has submitted a list of concerns about P being in care. She says that last time P was in care, she was neglected, assaulted, and abused: P suffered burns (she says) and possibly sexual abuse at the hands of staff she labels “institutional criminals”.
Apparently, Q’s submissions (which run to 100 pages or so) do not address the events of 21st February 2023. What she’s written deals mostly with “historic complaints and allegations” about P’s former care placement and accusations against local authority staff. The local authority disputes these claims.
When Q addresses the court, she focuses almost exclusively on her concerns about the alleged (“historic”) abuse. The judge establishes which care home this relates to and asks the local authority whether they can provide assurances that P is not currently in that care home or any care home associated with it. Ms O’Leary undertakes to find out about that.
Q’s daughter (R) does address recent events. She says it’s “really unfortunate, what happened” and that her son has agreed not to come to the flat except with his parents, not to stay overnight, and not to see P.
Judge: But the trouble is that on 21st February 2023, the police arrived to arrest your son. There was some kind of scrum, it’s said he was resisting arrest, and police officers noted P was shaking and was frightened by what was going on. That is not a safe placement – not at that moment. I appreciate that [your son] is being removed from the scene. And a knife! Whether it was on a kitchen surface or, as the police say, on a dresser in a bedroom. And then not to mention it to the court, not to write an email saying, “we’ve had some problems with the police”. In fact you were hiding it. That the police were arresting your son and grandson.
R: I explained it in a phone call to the social worker on the 21st and again on 24th and said I was happy for someone to come to the property.
Judge: But what about the court?
R: It didn’t come into our heads, to be honest.
Judge: But, I’m sorry!, there was a hearing on 23rd February in front of a district judge, so why not say to him-
R: We weren’t attending that hearing. We was never coming to the court. We wanted an adjournment to get legal representation. But they went ahead.
Judge: This incident is said by the local authority and the Official Solicitor to be the ‘final straw’. Before this there was you not granting access, non-compliance with court orders, refusing to sign a Working Agreement, you and your mother holding yourselves out as P’s Deputy when this wasn’t the case, requesting medical procedures inappropriately (to find out if P had been sexually abused), saying she had hepatitis, which she doesn’t. This is so upsetting for her. That’s not a stable place for her to live.
This was followed by the judge asking for information about which members of the (large) family would want to make arrangements for contact with P, if P were to remain where she is. She doesn’t really get an answer. Instead, Q and R talk about how much they love P, how difficult it would be for P to have her family visit and then go away and leave her there – and they describe activities they do as a family with P (including shopping and going to church regularly).
In a final plea to the court, R said:
“I feel completely awful over the incident with my son. P has really had a bad deal in this situation. I would like to reassure the local authority that P is not an orphan. Please will the court consider her coming back home. We’re happy for the therapist to visit. We want to work with the local authority and do feel that in future we could work together. I feel personally that P would benefit by getting back home to her bedroom and her community rather than starting all over again with people she’s not familiar with”.
Official Solicitor (for P)
Ms Alison Meacher, counsel for P via her litigation friend the Official Solicitor, said:
“We support the application that P should remain where she’s currently living. It is not a safe environment for her to live with Q, notwithstanding that she loves her very much. The difficulty we have is that statements about wanting to work with the local authority have been made at previous hearings but that is not what happens after the hearing. For example, the Working Agreement discussed in September and drafted by the local authority with counsel for Q, provided by Advocate on a pro-bono basis, was then not signed by Q. It was agreed, but she then did not sign it. There are other examples – e.g. the information sought by P’s deputy about P’s activities so that decisions can be made about whether to use part of P’s personal allowance to get a mobility car. It was explained to Q that information was needed so a decision could be made. The information asked for has not been provided. Then on 20th January there was a prearranged visit from the OS’s representative, and Q had agreed that she could have a small amount of time with P on her own – but she wouldn’t let her spend any time alone with P on the day. So, agreement is proffered at the hearings, and intentions are set out – which is of course very positive. And we would love to see them then seen through, but they are not seen through. Things are said in court, but that’s not what materialises afterwards.”
Counsel for the Local Authority again
Ms Tara O’Leary confirms that “the current placement is entirely unconnected to [the previous one]”. She also confirmed that (as the family have apparently requested) P has only female carers at the moment. The judge asked for a recital recording the expectation of the court that this would remain the case – at least in relation to “toileting and personal washing type care”.
She then said she wanted to “endorse every word Ms Meacher has said. The headline is the disconnect between what’s said in court and what happens afterwards”.
She also raised a missed appointment. It had been agreed that a social worker would visit with an Occupational Therapist to discuss access to the community, but when they arrived at the flat, nobody was home. “Q and R said they’d gone shopping to IKEA with P and hadn’t managed to get home in time – so it was a complete waste of time and resources. That was on 25th January, and that visit still hasn’t happened.”
Judgment
The judge found it was in P’s best interests to stay in her current placement while assessments take place, with an expectation of female carers and a contact plan required within seven days. She asked for a list of family members who ought to have contact and approved a timetable for witness statements, other evidence (including P’s wishes and feelings) and the date of a round table meeting. She encouraged Q to contact another solicitor who (the OS said) would be willing to take her on.
The next hearing will be before District Judge Grosse on 10th May 2023.
Reflections
It is obviously a very serious matter for a court to make an order against a person without giving them an opportunity to be heard. All the cases I know about – with the significant exception of Re A [2022] EWCOP 44 (which I’ve blogged about several times, including: “Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44“) have concerned ’emergencies’. They include, for example, the risk of P being taken out of the country for a forced marriage, or physically abused by a partner, or (as in this case) some other possible high risk to P’s physical and emotional well-being. The court decides it needs to act quickly to remove P and does so without alerting parties who might cause harm to P.
Given the history of this case, as presented by the lawyers – even bearing in mind the different version of that history presented by P’s sister and niece – I could understand why the court felt it imperative to act as they did.
Given that Hayden J was the author of the recent ‘Closed Hearings’ and Closed Materials’ Guidance [2023] EWCOP 6, it is not surprising that he seems to have acted in compliance with it – in particular by fixing a date for a full hearing as soon as possible after the closed proceedings, giving the excluded party an opportunity to attend. This was that hearing.[1].
My concerns about the way closed hearings were managed in Re A [2022] EWCOP 44 are largely inapplicable to this case. In this case, the family was informed about the closed hearing and the order resulting from it very shortly thereafter; the case was back in court for full consideration; and the intractable problem of the parallel open and closed hearings that plagued Re A does not apply to this case.
It seems to me a good example – as in other cases I’ve watched (e.g. “Forced Marriage Protection Order“) of the court balancing the requirements of open justice (with parties on an equal footing) with the imperative of protecting the vulnerable adult at the centre of the case, and acting quickly and effectively in P’s best interests.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings since 1st May 2020. She is on LinkedIn and tweets as @KitzingerCelia
[1] Hayden J ordered that a return hearing should be listed in the urgent business list on Monday 27th February 2023. That hearing was not effective because the local authority had been unable to locate P and Q. So the judge (Roberts J) had adjourned the return hearing for a week, until this hearing on 6th March 2023.
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