Fact-finding hearing: “Little short of outright war”

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By Celia Kitzinger, 24th July 2023

Update: This hearing was adjourned due to illness of Lead Counsel for the Applicant on Monday 31st July 2023. The hearing will continue on the next available court dates: 6th October and 9th October 2023. The father will finish giving evidence (he was part way through being cross-examined) and this will be followed by evidence from the mother and the grandmother. Information about how to observe the hearing will be available on our home page nearer the time.

Fact-finding hearings are rare in the Court of Protection. We’ve previously published only two blog posts about fact-finding hearings: one before HHJ Tindal (“Abuse and coercive control? A fact-finding hearing and exoneration“) and another hearing that was adjourned part way before HHJ Lopez (Fact-finding, ‘magnetic importance’, and the consternation of colleagues: A final hearing adjourned).

Fact-finding hearings arise when one party makes allegations against another that are of significance and will impact upon decisions that need to be made – like where the vulnerable person at the centre of the case will live, or the contact they will have with family members. 

In this case (COP 12975950), the ICB (Integrated Care Board) – with the Care Home – is making serious accusations against the family. And the family has made very serious accusations against the Care Home. When one of the witnesses referred to “a breakdown in communication“, the judge – Mr Justice Hayden – intervened to say it was “something rather more serious than that“, describing it as “little short of outright war between carers and the family“.

The carers say the parents have been intimidating, threatening and challenging to staff and used rude or abusive words to them (thereby breaching injunctive orders from a previous hearing).  

They say both parents and the grandmother have tampered with their daughter’s medical equipment, including the equipment used to deliver oxygen, suction and feeding, and that they’ve placed her at risk of harm by interfering during her medical care.

There are counter accusations from the father, supported by the mother and grandmother.  He says that staff at the care home have placed his daughter at risk of harm by failing to provided proper care.  He says they’ve not properly maintained her airway and lungs, her oxygen supply, her tracheostomy, or feeding tubes.  He says they’ve failed to ensure she has adequate equipment which is properly set up, and that they’ve failed to maintain her personal hygiene, have used unsafe secondary ventilator settings, and failed to administer essential medications.  

These are all very serious allegations – both those by the Care Home and ICB against the family, and those by the family against the Care Home.

The outcome of this hearing will be that the judge, Mr Justice Hayden, will decide the facts of the matter – and those “facts”, as determined by the judge in accordance with the civil standard of “balance of probability”, will have a profound impact on future decisions made for P: on where she lives, who cares for her, and the time she spends with the three closest members of her family.

The young woman at the centre of the case (referred to as “G” in earlier judgments, so that is the initial we’ll use in our blog posts) is 28 years old with a progressive neurological condition. She is in a low awareness state, has a tracheostomy and ventilator, and requires skilled 24/7 care.  She moved from Hospital (where she’d been for the previous 14 years) to a Care Home in mid-August 2022.  Clearly, things have not gone well in the last 11 months.

Her family wanted her to come home rather than move to a care home, but in a previous judgment (in December 2021)  Hayden J ordered she should move to the Care Home because an immediate move home was “fretted with risk” and “might set G up to fail” so that then “she would have no further chance to return to her parents’ care“.  The move to the Care Home was intended, initially, as a step-down from hospital care “to smooth out the transition to any return home” (from the December 2021 judgment, Re G [2021} EWCOP 69).

An unusual feature of this case is that G’s father has made audio-recordings on his telephone when he has visited his daughter in the Care Home.  Some of these have been played in court.  They provide powerful contemporaneous evidence of what was said on particular occasions  – listening to them helps to determine who said what and whether or not (for example) a family member was screaming or shouting at staff, whether they were “rude”, how long it was before someone reported a fault with equipment, and so on.  Memories and records of these events provide one source of evidence. The recordings provide another.  There are also contemporaneous – usually handwritten and initialled – care records maintained by the Care Home, which provide another source of evidence about what happened.  Some of these care records have been displayed on screen in the course of the hearing.

The hearing is taking place in a courtroom in the Royal Courts of Justice.  There is also a video-link and some people are participating remotely.  This includes G’s grandmother (for the first part of the hearing) and some of the witnesses.

The lawyers are all in the courtroom and the barristers are easily recognisable as such because they are wearing wigs. If you join a few minutes before the hearing starts, you’ll often see them putting them on (sometimes their jabots, too) – and complaining about them being “itchy”.  Their instructing solicitors sit behind them, usually alongside their clients. Both parents are in the physical courtroom.  So are some observers (right at the back) – and sometimes the PA journalist, Brian Farmer, appears for parts of the hearing.  He wrote an article about the case after the first day of the hearing which was published in The Independent: “Parents and grandmother accused of ‘tampering’ with woman’s medical equipment”.

The barristers addressing the judge (so-called “Leading Counsel” in this case) are:

If you click on the links, you’ll see photos of them – though they look a bit different dressed up in court (“robed”). 

The grandmother does not have a legal team. She appears as a litigant in person, which is why she is able to cross-question the witnesses (whereas the lawyers do the cross-questioning for the parents).

Other people visible in court if you join by video-link might include: 

  • Olivia Kirkbride, Junior Counsel for the ICB and the Care Home
  • Benjamin Harrison, Junior Counsel for G via her litigation friend the Official Solicitor – He’s sometimes visible in court when he’s helping witnesses find the right page in the bundle of court documents.
  • Francesca Gardner, Junior Counsel for G’s father
  • Nicola Kohn, Junior Counsel for G’s mother.

They are “junior” only in the sense that they are not (yet) KCs – “Kings Counsel” – i.e. those barristers (or solicitor advocates) and who’ve been recognised for excellence in advocacy, who are seen as leaders in their area of law, who generally take on more complex cases requiring a higher level of expertise.  Junior counsel have a very important but less visible role to play in this hearing, and they support senior counsel (the KCs) in court – for example by finding the correct material or references as witnesses are examined, allowing senior counsel to focus more on formulating their questions.

The witnesses – so far including the Safeguarding Lead, some health care assistants, the clinical lead from the care home and some nurses –  are sometimes in the physical courtroom, and sometimes on the remote link. There are more witnesses from the care home still to come. Both parents and the grandmother will also give evidence.

Each witness is ‘sworn in’ or asked to make the (non-religious) ‘affirmation’ that they will tell the truth.  Each has submitted one or more written statements and is asked to confirm they are true, and to make any corrections.  Then they are questioned about what they’ve said to “test their evidence” – and sometimes their statements are compared with what they or others wrote at the time in the care home records,  or with an audio-recording. It’s clear from watching that this is a very stressful experience for them. The judge is trying hard to reduce their stress and explain to them how the process works.

The evidence and questions are focussed around a few specific events.  For example, there have been some occasions when G’s oxygen was not reaching her and there are different views about how that came about. There was an occasion when G was transported from hospital back to the care home with a cracked piece of ventilation equipment: the nurse says it was a “hairline crack”; the father has a photograph (which was displayed on screen) showing a piece of equipment completely broken through.  On another occasion, the parents returned late from a day out with G and the night nurse asked them to hand over G at the front door rather than admitting them into the Care Home: she alleges that G’s mother shouted at her and (deliberately?) injured her foot with the wheelchair by continuing to push G’s wheelchair into the building.

Transparency matters

The judiciary, lawyers and staff of the Court of Protection are deeply committed to transparency.  

But the Court of Protection doesn’t always deliver on the aspiration to transparency, and our blog posts continue to chart the multiple problems of access experienced by would-be observers over the last three years – both in relation to access to the physical courtroom for in-person hearings (where staff have told us that the hearing is not taking place or have stopped us from entering the courtroom, or there have been “PRIVATE” signs on the door) and in relation to remote access (quite often because nobody responds to our email requests for the link – or they don’t respond in time).

Unusually – this has never happened before! – Mr Justice Hayden has given permission for me to share the MS Teams link for this hearing with anyone who wants to observe – just email via openjustice@yahoo.com.  So far, I’ve personally sent out the link to nearly 30 people.  You can also ask the Royal Courts of Justice staff to send it out (which is the normal route to gain remote access):  Email: rcj.familyhighcourt@justice.gov.uk  

But I have run into a transparency problem in relation to this hearing. Ten of the observers have written short contributions for a collective group blog about their experience of the hearing so far. This is ready to publish, and I had intended to post it today. It’s all ready to go.

On the verge of pressing the “Publish” button, I had a crisis of confidence because of an incident that occurred earlier this year in relation to another blog post we published about a different, but also (at the time) ongoing, case before Mostyn J. That blog post contained some strong opinions, and after it was published Mostyn J informed me that we may have been in breach of ss 1 and 2 of the Contempt of Court Act 1981 – because (he said) there was a not insubstantial (but real) risk that the course of justice in the proceedings would be impeded or prejudiced, in that the mind of the court may have been subconsciously influenced on reading the post. I removed the blog post immediately – but the episode caused a lot of anxiety and distress. And it has left its legacy.

The ten bloggers who’ve written about this hearing before Hayden J have some strong opinions – about the efficacy of the cross-examination, the reliability of the witness evidence, the approach of the judge. The hearing is ongoing. I dare not risk publishing without being sure that I’m not in contempt of court, And I cannot risk exposing the ten bloggers to being in contempt of court either. So I’ll press the ‘PUBLISH” button only when I get some reassurance from lawyers that I can go ahead.

This transparency business comes with risks – both for the courts and, obviously, for us as observers.

But don’t let that stop you from observing this ongoing hearing – and drafting a commentary on it which we can publish after the hearing is finished, if not before.

For more background to the case, see these two previous judgments: Re G [2021] EWCOP 69 and Re G [2022] EWCOP 25.)

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 460 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia