Disadvantaged litigants in person and a long search for a placement

By Celia Kitzinger, 14th April 2023

This very short hearing (just half an hour) interested me for two reasons.  First, it tells yet another story indicative of the horrendous pressures on social care in England, with suitable placements hard to come by.  Second, it raised for me some worries about the way the judge treated the parents, who were unrepresented parties (‘litigants in person’) in this case.

Background

It’s a recurrent theme. A vulnerable person is in unsuitable – even dangerous – accommodation, with care that doesn’t meet their needs.  Everyone agrees the current placement is not in their best interests and they should move somewhere else.  But there’s nothing else available.  And this goes on for months or years. 

The young man at the centre of this case (“P”) is a teenager diagnosed with a severe learning disability.  He also has epilepsy and glaucoma affecting his eyesight.  It’s reported that he can “exhibit challenging behaviours” and that he “requires a high level of support to meet his needs, currently 2:1 care”. 

The local authority, London Borough of Hammersmith and Fulham, made an application in June 2021 to determine where he should live after turning 18 and since then there have been many hearings – none I which I’ve observed, until now.

In April 2022, under circumstances that weren’t discussed in court, the local authority moved P to his current supported living placement “without court authorisation or the agreement of [P’s] family or his litigation friend. The local authority’s statement… addresses this move with an apology”.  He’s been there ever since and it’s not worked out well for him.

There’s been ongoing concern about care provision. By the end of 2022, after eight months in the new placement, there was “a marked deterioration” in P’s wellbeing – including two hospital admissions due to epileptic seizures.  The provider had no permanent staff and was relying on agency workers.  Faced with different and unfamiliar staff, P was refusing medication, activities and personal care. A safeguarding investigation found problems with staff knowledge about seizures and medication, the Official Solicitor has “serious concerns about the current placement”, and family members have been raising multiple concerns about the impact of poor quality care on P’s physical health. All parties have been agreed since November 2022 that it’s not in P’s best interests to stay at this placement.  

But there isn’t anywhere else for him to go.  

He’s been in a placement that doesn’t meet his needs for a year now, and clearly something needs to be done. Enquiries with appropriate placements within the borough have drawn a blank.  And the family are concerned about an out-of-borough placement. It would take P away from his familiar local area and make it harder for them to visit him. The parents are (separately) parties to this case as litigants in person.

The position at the beginning of this hearing was that the applicant local authority and the Official Solicitor have agreed that the search should now be broadened to consider possible out-of-borough placements.  But it turns out that the parents have not read the draft order so they’re in no position to agree (or disagree) with it.  I have some concerns about the way this was managed in court: the outcome of the hearing was that the judge ordered that out-of-borough options are now to be considered, without properly eliciting the parents’ views on the matter, despite their party status. 

The hearing

The hearing (COP 13796659) was listed for 2pm on Thursday 13^th April 2023 before Deputy District Judge Chahal, sitting remotely (via MS Teams) at First Avenue House in London.  

There were three observers, and (unusually) we were sent the Transparency Order in advance. It’s in the standard terms, i.e. we can report and comment on these proceedings so long as we don’t publish anything that “identifies or is likely to identify” P and his family members, or where any of them live, or their contact details.  

The parents were both in court, sharing the same screen and joined (on a different screen) by their interpreter (for a Central Asian language).  His sister, fluent in English, and articulate in her interventions, was also present.

The applicant party, the London Borough of Hammersmith and Fulham, was represented by Darren Ward of 5 Pump Court. The young man at the centre of the case (P) was not in court in person. He was represented, via his litigation friend the Official Solicitor, by Gemma Daly of Doughty Street Chambers. The parents were (separate) litigants in person (i.e. each of them was party to the case, but neither had a legal team).  

There was some faffing around before the hearing started to ensure that the parents had video and audio access, and then some issues to resolve with the interpreter, who spoke a different version of the same language as the parents, with variations in pronunciation, grammar and vocabulary.  It was established that this was unlikely to cause problems – and the judge did check on this when the hearing started, a few minutes later than listed.

Although the judge acknowledged the presence of observers by referring to the Transparency Order and reminding us that we were not allowed to record the hearing, she did not ask the applicant for an opening summary, and nor did she provide one herself.  This is not in accordance with the memo from the former Vice President of the Court of Protection, which reads: 

… a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing. Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context. (as reproduced on the Mental Capacity Law and Policy blog) 

Sometimes when judges forget (or don’t know about) the need for an opening summary, one of the barristers will step in helpfully to provide one anyway (as Ben McCormack did in a case I blogged recently).  But that didn’t happen here, and so it was hard to follow what was happening especially in the first half of the hearing.  Failure to provide opening summaries undermines the judicial commitment to transparency.

The facts provided in the beginning of this blog post only began to emerge towards the end of the hearing, and many of them are taken from the Position Statement I requested and received from the Official Solicitor. (There was no response to my request for the local authority’s Position Statement.) Especially in the absence of opening summaries, but also as a general practice, it is worth googling the names of the lawyers at the beginning of the hearing, obtaining their emails, and then contacting them right away to ask each one for their Position Statement.  A Position Statement is the document prepared in advance by each (represented) party, laying out the background to the case and the position they take now on what should happen next and the order they want the judge to make.

In this hearing, the draft order had been agreed in advance between the local authority and the Official Solicitor – but not with the parents, who said they hadn’t read it.  I expected the judge to call a short adjournment so that the parents could read it and/or have it explained to them via one of the lawyers, but instead the judge explained very briefly what was in it and said they could read it after the hearing.

“It outlines further steps to take to progress the case –  so there are further documents disclosed and further searches for a residential placement, with the case coming back before the court at the earliest available date after 29^th May.  And I’m going to ask someone for the Official Solicitor to run through the order with you after the end of this hearing so that you’re aware of its content. The important thing is that there’s now agreement, it seems, that there will be a wider search for a placement, including out of borough, which is a very welcome development, I think, that will assist in taking matters forward.^[1]”

The judge then said that “unless there’s anything further, I will ask for the order by 10am tomorrow” and seemed ready to end the hearing, without giving the parents the opportunity to express their (possibly divergent) views about the draft order that had been agreed by the other parties.  I’m fairly sure, from what happened next, that the parents did indeed have views about out-of-borough placement options, and this was the place in the hearing where they should have been able to share them. But they were not invited to do so.  I found this somewhat concerning – especially as the parents are litigants in person. It didn’t seem fair.

Fortunately, Gemma Daly (counsel for P via the Official Solicitor) intervened with a “practical point” about the searches that would now (assuming the order were to be approved, as the judge had already indicated it would be) extend out of borough.  She raised a concern about whether and how family could travel to get to any new proposed placement, and recommended consultation with the parents about this.  The judge then asked “Does anyone know if the parents drive?” (I don’t know why she didn’t ask them directly via the interpreter) – and was told the father did.  At which point P’s sister intervened  – in my view, very helpfully since she corrected my misapprehension at this point (which might also have been the judge’s misapprehension) that her father would be able unproblematically to drive her mother to visit P.

“Can I just say something in regard to the driving part.  My parents are actually today attending a funeral, which is why they are here together.  But they are separated.  Dad does drive, but he only visits P about once a week.  He is at work during the day.  Mum does not drive, and she is the person who visits a lot.  Sometimes I drive Mum there, but I am at work so I cannot always do that.  At the moment there is a convenient bus route for Mum to visit P.  I am just putting that out there.”

The judge responded by saying that in considering proposed new placements, ease of family visits would be “one of the issues that will be taken into account in determining P’s best interests”, but that it was “not determinative”. She suggested that the social worker (who I think was also in court) should discuss with the mother how the transportation issues would work in relation to putative placements, and said “these are very much practical issues which I hope will be capable of resolution if the parties are able to discuss them fully and frankly”. But as far as I know there is nothing in the order that says anything about the way in which the widening of the search for a placement should take account of the mother’s ability to visit. If there had been, surely the judge would have said so as a way of reassuring the family at this point.

Reflections

From what I heard, and have since read in the Position Statement from the Official Solicitor, I absolutely understand the need for the search to be broadened out-of-borough, since P’s current placement is clearly failing to meet his needs.  But it’s also, presumably, in P’s best interests, for his mother (and other family members) to be able to visit regularly – and it’s his mother who seems to have been picking up some of the problems with his care at the moment, and is likely to be an important person in supporting him with the transition to a new home and new carers.  

There has been some resistance from the family to moving P out of the borough.  Earlier this year, they apparently “refused to visit the out of borough available placement due to its location” – so I’m troubled that they were not given the opportunity to express their views on the “agreed” order during this hearing.  

I’m really uncomfortable that the parents, two parties to this case, were apparently caught by surprise in this hearing: they had not read the draft order^[2], were not offered a short adjournment to do so, got only a very cursory summary of it in court, and were not given the opportunity to comment on the key issue in the order concerning widening the search to out-of-borough placement options.  I don’t suppose expressing their views would have made a difference to the judge’s decision to widen the search in this difficult situation, but the parents should have had an opportunity to express their concerns and those concerns should have been properly addressed in the hearing and taken into account in the order.

If one or both parents had benefited from legal representation, I’m certain the judge would have provided their lawyers with a slot to raise concerns about the order agreed by the other parties – and maybe the lawyer would have been able to ensure something went into the order about giving full consideration to the mother’s ability to visit in selecting between possible out-of-borough options (if, in fact, there turn out to be any options).  This seems to me clearly one of those situation where litigants in person were at a disadvantage, and the judge did not provide the kind of support for them that I’ve (repeatedly) witnessed in other Court of Protection hearings. Usually, in my experience,  judges go out of their way to help litigants in person. In this hearing, it felt as though they were side-lined. It also seemed not in accord with the usual display of empathy I see from Court of Protection judges engaging with litigants in person – in this case, with an obviously devoted mother whose commitment to visiting her son seemed to be treated as a potential impediment to effecting his best interests.  Despite my sense that they were not treated as they should have been, neither parent showed any upset or anger at what was happing in court (as far as I could tell).

The barrister representing P (via the Official Solicitor), Gemma Daly, played a wholly positive role in these proceedings in relation to the family litigants in person^[3].  She raised early on the point that the parents had not agreed to the order (“I haven’t received a response from them about it”) and she alerted the court to the problem of family transportation to visit P – after the judge had indicated she was ready to approve the order and end the hearing without giving the parents the opportunity to express their views.  She also asked about using the existing video-platform link to discuss the order with the parents once the observers and judge left (the benefit of this, presumably, was that the interpreter and P’s sister would remain and participate) – and that discussion was just beginning as I left the hearing. But of course, by that time the judge had approved the order without hearing from these two parties.

So, this was a troubling hearing both because it exposed the shortcomings of social care and because it raised – at least for me – concerns about procedural fairness for litigants in person.  In my view, this hearing (which lasted for only 30 minutes of its scheduled hour) would have better exemplified what I have come to expect from the Court of Protection if time had been taken during the hearing itself to provide a fuller explanation of the ‘agreed’ draft order to broaden the search out of borough, and if the parents, as litigants in person, had been given the opportunity to address the judge and explain their views about that. As the judiciary’s Equal Treatment Handbook says: “When parties do not get the outcome they would like or expect, it is particularly important that they feel they were fairly treated, fully heard and fully understood.”

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings.  You can follow her on Twitter @KitzingerCelia

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^[1] _{Quotations from the hearing are based on touch-typed contemporaneous notes and are as accurate as I can make them, but are unlikely to be exactly verbatim.}

^[2] _{Counsel for the Official Solicitor said the draft order had been sent to the parents, but the parents said they hadn’t read it, without giving any reasons. So I don’t know why they hadn’t read the order. It may have been that it was sent only in English and their English was not good enough to make sense of it without an interpreter, or simply that the legal language was baffling, as it often is even for first-language English speakers.  I’m also guessing that the order was sent only the day before the hearing (the Position Statement is dated 12^th April 2023, the day before the hearing, which leads me to think the draft order may also be of that date). Their daughter told the court that her parents were at a funeral on the day of the hearing, so they may simply not have opened their emails or had time to read what was sent.  I wonder, too, if they’d been represented, whether their lawyers might have asked for an adjournment due to the funeral – it must have been a stressful experience to attend both the court hearing and the funeral on the same day.}           

^[3] _{There is useful guidance for lawyers on dealing with litigants in person: https://www.lawsociety.org.uk/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers  The Equal Treatment Bench Book (for judges) also has a chapter on litigants in person.}