Moving towards transition from children’s to adult services

By Claire Martin, 14 September 2023

John (not his real name) is 17 and will be 18 in three months’ time. He used to live with his adoptive mother but (since 2021) has been living in a Gateshead Local Authority placement where he is supervised 2:1 by carers. 

I didn’t find out anything about John’s difficulties or diagnoses during the hearing (but filled in some gaps in my understanding when I read the Position Statement from the OS) other than that he can present with ‘challenging behaviour’, but he is said to be very happy at his home. He has to move out though, because the home is for children and he will become an adult soon. 

This case (COP 14067800) has been before the Court of Protection since 12^th May 2023, but the first hearing I observed (remotely) was before HHJ Burrows on 17^th August 2023. This is how it was listed. 

It was a case management hearing, which means current issues are reviewed, parties’ positions are submitted to the judge, orders are made and plans for future or final hearings are decided. 

A Note on Accessing the Court

This was one of the best organised hearings I have observed. HHJ Burrows was sitting at First Avenue House, the home of the Court of Protection, in London. The hearing was remote, via MS Teams at 10am. I received the link, and the Transparency Order, at 9.40am. 

Both counsel (Sophie Hurst for John, via his Litigation Friend the Official Solicitor; and Stephen Williams for Gateshead Council) were on the link when I was admitted. The court clerk checked with counsel whether any other people were expected (John’s Social Worker joined by telephone some time later) and then checked that I could hear and that I had received the Transparency Order. He said the judge had asked whether I wished to stay on for his 11am hearing. I couldn’t stay on as I had a prior commitment, though I was pleased to have been asked. 

John

When HHJ Burrows joined the video-platform, he checked with counsel whether others would be joining and then said: “Dr Martin is very welcome to join us. I haven’t received a Position Statement from the Local Authority. I have one from Ms Hurst. …. For my benefit and also for Dr Martin please outline what this case is about”.

Counsel for the local authority explained: 

“This case concerns [John] a 17-year-old, 18 on [X December 2023]. He was previously living with his adoptive parents and then due to […] rising aggression and behaviours […] he was detained under Section 2 of the Mental Health Act and then in March 2021 detained under Section 3. Care proceedings in 2021 resulted in [John] residing in his current placement – he is the sole resident at the placement since 2021, [which is] a registered children’s home. The Local Authority has blocked out the other vacancies – it can cater for 3 or 4 [children] – but he’s the sole resident presently. He turns 18 in December. He will need to leave then or shortly thereafter. I have been informed that he can remain for a very short period of time, but the Local Authority is taking steps to identify a placement for him before he turns 18. He is supervised 2:1 in the current placement and to and from school. He attends year 13 [and] he’ll be there until 2024, July. [He has] reduced supervision of 1:1 […] staff have had to restrain him on occasion […] they are trained in NAPPI training […] have had to administer PRN [‘as needed’] Methazine medications. He is restricted in using computer equipment, to aid good sleep and a good routine. There are restrictions in place, the doors and windows are locked.”

Counsel for John via the Official Solicitor helpfully sought permission to share her client’s Position Statement with me, which has enhanced my understanding of John’s needs. Counsel for the local authority likewise sought permission to share their Position Statement, but I have not received it to date. 

John has a condition called Fragile X of a type that is associated with learning disability, ADHD and global developmental delay. He has been deprived of his liberty since December 2021, when he first moved from living with his adoptive mother, and a care order was made for him to live in his current home. By all accounts (according to his counsel), John likes living where he is, is very sociable, gets on well with his carers and is happy and settled. This was clearly important, given that John’s life will be changed completely not long after he turns 18. 

What was the court being asked to do?

It wasn’t clear to me at first, what the court was being asked to consider. HHJ Burrows needed to clarify this point:

Judge: [to Stephen Williams, counsel for LA] What are you asking the court to do?

Counsel for the LA  described issues to do with identifying an appropriate place for John to move to. 

Judge:  Does he have to leave the placement when he’s 18?

Counsel for LA: There is no issue in terms of registration. […] The Local Authority is effectively booking out the entire placement, which could cater for more than one resident. Equally, and more importantly, the Local Authority acknowledges that remaining in a children’s placement is not in [John’s] best interests in the long term. We are taking appropriate steps to identify properties.

So, it seemed the main issue, from the Local Authority’s perspective, was finding somewhere for John to live. All parties agreed that John lacked capacity to make this decision himself, as well as decisions about his care needs. However, the Official Solicitor requested that the Local Authority provide capacity assessments for financial decisions (John’s mother currently acts as appointee, but wishes to be removed from this role), as well as use of social media and the internet (which are subject to restrictions in John’s care plan).

John’s Mother

I was wondering why, given that she had been mentioned a few times, John’s mother was not at the hearing, or a party to proceedings. HHJ Burrows asked about this during the hearing: 

Judge: [John’s] mother is not present today and you said she’s not indicated a wish to be involved in proceedings. How much has she been involved in the early stages of the planning?
Counsel for the LA: I don’t have instructions on that … [he passed the query to John’s Social Worker, who had joined the hearing by telephone] 
Social Worker: My understanding is that she DOES want to be involved in all aspects of planning and I thought she would be joining today.
Judge: Have efforts been made to involve her?
Social Worker: I was in touch with her last week. Apologies if that hasn’t filtered through.
Judge: I am rather glad now that I didn’t just make the order in the absence of a hearing. It’s vital that this lady is involved, not only in care planning but in these proceedings and she needs to know about these things for his future life. I am surprised she’s not here. This is perhaps an oversight by somebody who should have put her in touch. Let’s carry on and see where we get to. 

Counsel for the LA later addressed the lack of planning to ensure John’s mother was part of the court process. He said that ‘urgent enquiries’ would be made of John’s mother, ‘as to whether she wishes to be a party’. I thought that HHJ Burrows’ response to this was heartening: 

Judge: I’m not talking about her being a party [….] obviously we can consider that, but she obviously wants to be involved. It’s very common for parents and close relatives having access to all of the papers and having access to me, as if she were a party. Sometimes parents are a bit cautious about the court, as if we are adjudicating about their parenting. She’s been through care proceedings which must be AWFUL and I want her reassured that the purpose is not to judge her and we will benefit from her knowledge and experience. [Judge’s emphasis]

Counsel for the LA: Yes, we will contact her. You will see she’s submitted evidence.

Judge: Yes I have read it.

Counsel for the LA: You have my apologies that I haven’t granted her permission to submit [further statements.] I would suggest giving her two weeks to respond [about proposed properties for John to move to]. 

Judge: No doubt the Official Solicitor will wish to respond, but they will wish to see what the mother has to say. When you say ‘statement’ it can just be a letter to me, it doesn’t have to be formal, if she wants to talk to me at the hearing that is fine. I want to make it more user-friendly for someone who might be intimidated by the court. 

That felt like a breath of fresh air. I wondered how many other parents and relatives are afforded this sort of compassionate understanding of what it’s like to be faced with engaging with the judicial system, and efforts made to adjust the ‘intimidating’ processes and etiquette. 

Capacity for Sex

A brief but interesting discussion took place about John’s age, sexual development, current situation and decision-making capacity in relation to sex. 

Counsel for the Local Authority was discussing the ‘PBS Plan’ [Positive Behaviour Support Plan] in relation to John’s ongoing care needs. His current plan was devised in 2021, by CYPS (NHS Children’s & Young People’s Service). 

Counsel for LA: CYPS will confirm with [care provider] that the plan is sufficient and whether the school [has addressed] sexual relationships, he has had some….

Judge: What? Sexual relationships?

Counsel for LA: No apologies. Education about this. He’ll be 18, he’s looking forward to going to clubs and bars, ‘picking up chicks’ in his language….

Judge: Is there evidence he doesn’t have capacity for sexual relationships?

Counsel for LA: It’s not yet assessed. There’s no suggestion of an assessment about capacity for this yet [this was also agreed by the Official Solicitor]. We are more looking to see what the school can provide, and also to see if he is even indicating an interest in this …. [Counsel’s emphasis]

Judge: But presumably it’s an important part of care planning. He’s expressing an interest in women … he may want to have sex with a woman today. What would you do? [Judge’s emphasis] 

Counsel for LA: Well, it’s not been expressed as present. It’s been described as bravado. He’s expressed a wish to meet girls. The Local Authority is keeping it under close review.

Judge: Yes, but he’s entirely under the care of the Local Authority and any development needs to be [….] sexual relationships should be moving towards the top, if not occupying the top, of the agenda. 

I was thinking the same thing, really. The judge was anticipating a situation that could change rapidly.  It didn’t sound as if the Local Authority knew what sexual and relationship education John had received, yet he was talking about going to clubs and ‘picking up chicks’. An aspect of life that is not restricted for John is contact with others (confirmed by the Official Solicitor’s Position Statement). 

Counsel for John later addressed this issue in her submissions: 

“Sexual relationships. This something we sought to explore in the round table meeting, given he is interested. On exploring further, we were told he has never acted on any comments – he has a favourite character in Coronation Street who says things like this [‘picking up chicks’]. We understand his needs are more sensory than looking for a partner. We understand that this is to be kept under review, see what happens over the next year. It isn’t the case he hasn’t had the opportunity to explore this if he wants to – he’s a very social young man. The Official Solicitor is satisfied about the plan over the next year.”

Both the Local Authority and Official Solicitor are therefore in agreement that a capacity assessment for sexual relations is not currently needed and will be kept under review.

The Outcome

HHJ Burrows invited final submissions from both counsel and asked whether (by the end of November) the court would ‘likely be in a position to formulate, approve or see enactment of a transition plan?’. 

The Occupational Therapist is visiting potential properties and will whittle this down to two or three appropriate places, which John will then be invited to visit. A statement of John’s wishes and feelings will be drawn up for the court. Then there will be a further (remote) hearing, with HHJ Burrows who will be sitting in Manchester, on 30^th November at 10am to decide whether further evidence is needed. 

A note on transparency 

It seems to be increasingly common for statutory bodies to request that their identities are kept secret. As members of the Open Justice Court of Protection Project, we often ask for this reporting restriction to be ‘varied’ (i.e. changed), to enable us to name them. See, for example: Is he deprived of his liberty? (Plus a request to vary the reporting restrictions – again); Varying reporting restrictions to name Kent County Council in “shocking” delay case).

I had received the Transparency Order (which is the court injunction stipulating what can and cannot be reported) and it did indeed prevent identifying where John lives – but not (explicitly) the name of the local authority.

The public listing – see the start of this blogpost – for this case had named Gateshead Council (which is why I was interested in observing the hearing, because I work in Gateshead). 

HHJ Burrows took the bull by the horns (for which I felt very relieved): 

“The second question – to both of you [counsel] – the Local Authority is identified in the list. We have an observer today – I can see no conceivable reason she should be prohibited from mentioning that Gateshead is the applicant in this case. There’s no reason for that is there?”

Counsel for LA: I have no instructions otherwise.

Judge: It’s on the public list. The horse has bolted in this case. For Dr Martin’s benefit, there is controversy at the moment about identifying public bodies. I can see no reason why not to identify in this case. 

The judge asked that he receive the Order ‘by tomorrow please’.

 And that was the end of what was a very efficient (44 minutes’ long), and very human hearing, which (although I did not – yet – learn a great deal about John as a person or his wishes and feelings) did keep ‘P’, and his mother, at the centre of the court’s focus. I formed the impression that this was entirely because HHJ Burrows made sure of it. 

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