By Celia Kitzinger, 11 April 2024
This was a short hearing about a long-running case[1] concerning a man in his twenties (MA) who has a learning disability and autism. Following an unpublished judgment by Hayden J back in July 2021, MA lives at a placement where he is deprived of his liberty.
In July 2022, the local authority sent a COP DOL11 renewal application to the court requesting renewal of MA’s deprivation of liberty under the Re X streamlined procedure[2], but there have been a number of delays – some due to a backlog of applications in the court system, and some caused (says the local authority) by his mother.
At the last hearing, on 23rd February 2024, seven weeks earlier (we blogged about it here: Judge declines to authorise a deprivation of liberty (for now)) the mother – who is also MA’s Rule 1.2[3] representative – said that she’d not received or had time to consider her son’s updated care plan or his Positive Behavioural Support plan. The observer wrote: “Given that MA’s mother had been unable to file a witness statement that reflected her views on MA’s current care, the judge declined to authorise the deprivation of liberty at this hearing. He listed the case again for a one-hour hearing at 2pm on Wednesday 27th March 2024.” So, this was that hearing held, as previously, before Deputy District Judge Reeder, sitting (remotely) at First Avenue House.
In an opening summary, counsel for the applicant local authority, London Borough of Haringey, Rebecca Hancock of Field Court Chambers, said that MA’s mother/ Rule 1.2 representative has now read the relevant documents and provided a statement in response which raises some issues which would be properly dealt with as s.16 Welfare proceedings, rather than a second or third go at dealing with this under the streamlined procedure. This includes the mother’s concerns about medication, support levels, activities and social stimulation, and contact between MA and his family.
The judge noted that “arrangements made in relation to family time didn’t appear to correlate with what was actually happening” and told counsel to make sure the new care and support plans were up to date. The court order of March 2022 required active review of family time every three months, but that hasn’t happened. On behalf of MA, via his mother/Rule 1.2 representative, Richard Alomo of No5 Chambers said that there hadn’t been any review of family time – but that this has now been provided for in the draft order, which (with both parties’ agreement) also reconstitutes the proceedings as a s.16 Welfare case. The parties have also agreed on what evidence needs to be before the court for the next hearing: my understanding is that it includes information about staffing levels, how waking night care operates, the current activity plan, and a review of contact arrangements.
I think the parties disagreed as to whether or not the judge should authorise MA’s ongoing deprivation of liberty in his current placement while the broader issues are considered. I haven’t seen the final order and I’m not sure whether the judge did or did not do so.
The parties also disagreed as to whether or not his mother should act as MA’s litigation friend in the reconstituted s.16 proceedings. The local authority thought the Official Solicitor should take that role, in part because of the possibility of a conflict between the mother’s strong views about contact with her son, and the need to act impartially as MA’s representative.
The judge said that the court “might now have reached the end of the road as far as the Re X procedure is concerned” given that “you had one stab at redoing it and things were still not in proper order”. He said he was “presently minded to reconstitute it as a welfare application”. He considered the question of whether or not the mother should be appointed as litigation friend, noting that the Official Solicitor is the litigation friend of last resort and that the mother had “conducted herself perfectly properly as a 1.2 representative at the same time as being MA’s mum”.
“The ability she’s shown to wear two hats is the same for a litigation friend. Nobody has raised issues or evidence to support her being prevented from being litigation friend. When talking about family time, she needs to be led by MA’s wishes and to support MA’s wishes. I can see nothing in the paperwork, nor has anyone pointed me to it, that would constitute a challenge that mother couldn’t meet wearing both hats. Unless there’s a compelling argument against it, then, I will appoint Mum as litigation friend for MA. If things reach an impasse, I can reconsider that position, but let’s hope that problem does not crop up.”
We hope to observe when the case is next back in court.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia. She can be contacted via openjustice@yahoo.com
Footnotes
[1] I discovered that other observers had actually watched this case – before first Williams J and then Cohen J – right back in the very first month at the beginning of our Open Justice Court of Protection Project in 2020. Here’s what Upeka de Silva says about it in June 2020 – in the very first blog post we ever published. “The case (listed as Case 13155577 Re: M), created a rollercoaster of emotions. It related to a contact order between a mother (the applicant), a brother (litigation friend) and a local authority care home in which P was currently residing. While there were Covid-19 related concerns in relation to visiting, the primary tension seemed to be about a breakdown in trust and cooperation between the mother who wanted to bring and share lunch with her autistic son and the care home who had refused her admittance for a period. It was heart-breaking to think this had to come to court. On the other hand, Mr Justice Williams maintained unwavering focus on what is right for P and preventing him being exposed to a toxic atmosphere. The hearing lasted an hour, an order requiring both flexibility and stability was granted, and I left feeling reassured that person-centred decision-making, an issue I feel strongly about, prevailed.” (Upeka de Silva, June 2020, One and a Half Remote Hearings in the Court of Protection) ( Also covered by David Haxon, July 2020 (before Cohen J) “A stop-start hearing”). There don’t seem to have been public observers (at least known to us) at the subsequent hearings before Hayden J
[2] See ‘Failed Re X’: Deprivation of liberty and Re X (the streamlined process) – a social work perspective.
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