“I’ve said my piece” – a social worker on long-term sick leave, a lack of communication and a frustrated judge

By ‘Anna’ (daughter of a “P’), 8th March 2024

I had tried to observe a hearing before District Judge Bland a few days before this one, but due to problems with technology, I hadn’t been able to, as I wrote about here. I was pleased, therefore, that I was able to observe this hearing. This was a very short hearing, only about 20 minutes long, but it shed light on some of the issues impacting the Court of Protection today: open justice, the use of technology, a system under strain, and the voice of P.

The case, COP 14141370, on 19^th February 2024 before District Judge Bland, sitting in Lancaster, was listed as follows:

As it was listed as a hybrid hearing, I knew that there would be a video link, as well as an in-person hearing.  There were some problems with the listing though: two hearings were listed for 10am and the one hour hearing (the one I wanted to observe) didn’t have any descriptors to tell me what the hearing was about.

I emailed the Manchester hub, as instructed on the listing, a couple of hours before the hearing was due to start. I asked for the link to observe the hearing, the transparency order associated with it and what time the hearing would be starting. (Hearings can be deliberately listed for the same time, as Daniel Clark has written about here.)  Unlike the previous time when I hadn’t had a reply, this time I received a reply from the Administration Officer, 45 minutes before the hearing, informing me that my request had been sent to the Judge and that both hearings were currently still listed for 10am. I was sent the Transparency Order (TO) 25 minutes before the hearing, which stated that the hearing would consider ‘where P (the protected party) should reside and their care arrangements’, and ‘whether to vary or terminate a standard authorisation’. The TO also said that the hearing should be listed as ‘where P should live’ and ‘authorising a deprivation of liberty’ but that judicial instruction had not been followed: there was nothing in the list to indicate what the hearing was about.. Fifteen  minutes before the hearing was due to start, I was sent the link to join by Lancaster court staff.

I clicked to join the video-platform shortly before 11am and was held in the waiting room until just before 11.15. I was then admitted, and could see the coutroom, but almost immediately I received a message saying ‘removed from the meeting’. This gave me a dilemma  – had I been removed deliberately? I wasn’t sure what to do. After a couple of minutes hesitation, I decided to rejoin and it was just as well I did – the hearing had not started as they were waiting for me to join. (After the hearing had ended, I looked at my emails and I found one from the Court Clerk asking me to rejoin as I had ‘dropped off’ the call).

I couldn’t see the judge, as the camera was pointing into the main courtroom but somebody started speaking to me directly, calling me by name, and I worked out it was the judge. He told me that there had been a delay letting me into the hearing so that he could ask the other attendees whether anyone objected to me observing the hearing. (I don’t quite understand why that was necessary as it was listed as a public hearing.) He asked me if I was with the ‘Transparency Project’ and I replied that I was with the Open Justice Court of Protection Project. He then asked counsel for P to provide a short summary, which is best practice in accordance with guidance from the former Vice-President of the Court of Protection, Mr Justice Hayden.

I must admit that I was a bit flustered at this point due to the glitch gaining access to the hearing and I wasn’t fully able to concentrate on the summary. I have observed a few hearings now but it can still be nerve-wracking. I felt bad for having held up the hearing, even unintentionally, as I’m aware of how busy everybody is. I tried to listen to what was being said, as well as trying to figure out who everybody was. It was a hybrid hearing, and it was quite difficult to hear what was said in the courtroom clearly[1].

I could tell Counsel for P was Mel Leeming, as she had a name board in front of her. She was in the physical court room, as was P, a man sitting next to her. I gathered that this was a s.21A appeal concerning P, who was objecting to his current care arrangements. There had been a hearing on 13^th November 2023 but further evidence had been deemed necessary. The case was waiting for a report from an expert, Dr O’Donovan, which was expected by 4th March 2024. There would be a review meeting once this report was received, in time for the next hearing.  It wasn’t clear to me what the report was for but I’m assuming it was to do an assessment of the capacity of P to make decisions about his care and residence, from the subject matter listed on the TO.

Ms Leeming also stated that P wanted to be able to manage his own finances, so there needed to be a capacity assessment for this as the current assessment was outdated. She stated that Dr O’Donovan would also be asked to assess that by May 2024. Ms Leeming stressed ‘P wishes to be more independent’. She mentioned a hearing on 4/6/24 and P was asking for all people to be there in person, although she recognised that this would be difficult for the local authority. The Local Authority (LA) was the London Borough of Haringey and of course the courtroom was in Lancaster, quite some distance away. I assumed that the two people I could see on camera were linked to the LA in some way. This hearing was a case management hearing.

Next to speak was Elizabeth Mottershaw, of Garden Court North Chambers, who I gathered was Counsel for the LA.  She asked for the deadline for the 4^th March report to be delayed by a week, although in doing so she acknowledged that she had not had an opportunity to clear this with P’s representatives. Evidence asked for had not been provided. P’s social worker had been on long term sick leave and was only returning to work gradually. The distance between London and Cumbria where P lived made maintaining contact with P difficult. The LA apologised for the delay in providing evidence. In terms of the next hearing being in person, Ms Mottershaw suggested that an afternoon hearing would make that easier, but she hadn’t had the opportunity to seek instructions.

Having listened to both counsel, the judge then spoke. He said that he had two concerns. He was concerned about an additional week being asked for the March report when the LA had known about the requirement for a considerable amount of time. The judge thought that the report could have been done and he was concerned that more time was being asked for. In terms of the staffing issues at the Local Authority, he said that the LA should make additional adjustments to deal with that. He had some sympathy but said that the organisation should  resources to allocate a different social worker to ensure the order had been compled with. He wanted to ensure fairness and that meant the matter being dealt with expediently. He said that delays increase costs. Orders meant obligations according to Court of Protection rules, to ensure that matters are dealt with and orders complied with; it was a duty. He continued that if there were difficulties complying with the order, and those difficulties were left “to float” and the court not informed, then it complicated matters.

He said he was not singling out the social worker because social work was a “complicated job” but the court should have been informed and “should have known”. He cited a judgement by Sir James Munby (then President of the Family Division) in the Family Court  – Re W, to do with non-compliance with orders in the Family Court that had been adopted in the Court of Protection. “Orders must be applied to the letter and on time”. The judge stated that the LA should be more proactive: “Court time is valuable as you know and I am very concerned about the slippage”. He went on to say that he expected the LA to let him know because if a hearing and court time was going to be lost, it was not acceptable. He said that if he hears that the report was slipping and putting in jeopardy the next hearing, he “may ask for a statement from a senior manager” (from the LA). He continued “I’m not criticising you or the social workers who are very busy and dealing with multiple issues but I need to know about issues sooner rather than later. It is not acceptable to ignore issues. You must keep me informed of issues.” He finished by saying “I’ve said my piece”.  Ms Leeming then asked the judge whether the date in the order was to remain the same and the judge replied “ I’m not going to extend it further. The order must be complied with.” The judge then approved the draft order.

The final words of the judge were addressed to P: “Good to see you, ‘P’. I will see you next time”. After 20 minutes, the hearing was over.

Reflections

Open Justice

I was very pleased to be able to be able to observe this hearing and for a summary to be provided for me. It would have been helpful to have been told who all the people I could see either in the court room or on camera were, but at the same time the hearing had been delayed slightly for me so I can appreciate they wanted to get on with the hearing. I did try and obtain a copy of the position statements from both the OS and the LA, which would have helped my understanding. Unfortunately I couldn’t track down which chambers Mel Leeming worked for. I did send an email to ask for the LA position statement but I didn’t get a reply. Position statements really help open justice so it was a shame I was unsuccessful.

Use of technology

Hybrid hearings can be difficult as the sound can be unclear. They are practical, and indeed they provide more opportunity for observers than hearings that are only in-person, but they can lead to difficulties and I found it interesting that P had asked for an in-person hearing next time.

A system under strain

The difficulties facing local authorities, paticularly social workers, was highlighted by this hearing. I recognized this, as the social worker involved in my mum’s hearing had also gone on long term sick leave. The judge seemed particularly vexed by the lack of communication about the problems and one of the issues he raised was the increase in costs arising from delays. The judge was clearly concerned that the authority of the court was not being respected, whilst recognising how difficult things are on the ground for social workers.  I wondered how the LA could have made ‘adjustments’ to cover for the sick social worker.

The voice of P

P had made the time and effort to be in court for this short hearing, but I didn’t hear him speak. It is P who is at the heart of this case and therefore he who is most impacted by any delays. I wonder if he will get his wish to have an in-person hearing next time.

‘Anna’ is the pseudonym of a woman whose mother was a P in a Court of Protection s.21A (challenge to a Deprivation of Liberty) application. She is a core team member of the Open Justice Court of Protection Project. She is particularly interested in family experiences of the Court of Protection and increasing understanding of the Court of Protection for families. Anna is not using her real name because she is subject to a transparency order from her mother’s case. She is hoping to change this.  

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[1] _{It is forbidden to record any part of a hearing and I don’t touch type so my notes will not be 100% accurate.}