By Daniel Clark, 2nd October 2024
The protected party in this case, “B”, is a thirty-year-old woman who, according to Counsel for her mother, has until recently been a “happy, well balanced, sociable person”. She enjoys spending time with her family and, until 2024, had been living with her mother at home.
This case (COP 14116349) first came before the court in July 2023. The local authority sought an injunction guaranteeing access to B which, they say, had been frustrated by her mother (JB). This access would allow the local authority to properly assess B’s needs for care and support.
In December 2023, the case changed direction following serious allegations that triggered a police investigation. The case was transferred from First Avenue House to the Royal Courts of Justice, for hearing before a judge of the High Court.
On 17th January 2024, Mr Justice Keehan approved the local authority’s application for B to move from her grandmother’s home (where she had been temporarily living) to Placement 1. This is a respite placement, where B had lived before.
Two law students blogged about this hearing here: “Two law students’ first observation of a COP hearing“
They comment that the judge “took P’s welfare into account as well as considered that P had made it clear that she was excited and happy to move”. However, they were concerned that they needed more background to the case, particularly with regards to why B was being moved. I also observed this hearing, and agreed with their comments.
In total I’ve so far observed five hearings in this case. I believe that there were three others in 2024, though these were heard in closed court. At the most recent hearing (27th September 2024) the judge authorised a move from one placement to another, and refused the mother’s application for a return home.
This case has been mostly heard before Mr Justice Keehan, who has sat remotely (via MS Teams) at the Royal Courts of Justice. On this most recent occasion (27th September 2024) the case was heard on an urgent basis before Mr Justice Peel. This was presumably because the court was still in recess, and Keehan J was on leave.
In the hearings that I have observed, two of the legal teams have remained the same.
Sebastian Elgueta, of Garden Court Chambers, has represented the applicant local authority, the London Borough of Lambeth. The Transparency Order previously prohibited me from identifying the local authority but, after applying to the court, Mr Justice Keehan amended the Order so that I could. You can read about that application in this blog: “Prohibitive Transparency Orders: Honest mistakes or weaponised incompetence?“
B’s mother (JB) was initially acting as a litigant in person. Following the hearing in January 2024, she has been represented by Alison Harvey, of One Pump Court. JB has some difficulty in understanding information, and has been assisted by an intermediary. There is also an expectation that the other parties make some accommodations in their communication with her (such as filing position statements at least two days in advance of a hearing).
B’s representatives (instructed by her litigation friend, the Official Solicitor) have changed throughout the year.
The first section of this blog addresses the concurrent closed proceedings, including issues of accidental disclosure. The second and third sections concern two hearings with two separate applications for the same outcome: moving B from Placement 1 to Placement 2.
In writing this blog, I have been greatly assisted by the position statements that the parties have consistently sent me.
Closed proceedings
Closed hearings are not the same as private hearings. When a Court of Protection case is heard in private, members of the public and (usually) members of the press are excluded from observing. However, all the parties are invited (or ordered) to take part.Closed hearings are different in that, while they do often exclude members of the public and press, a party or parties (and their legal representatives) are also excluded – and may not even know that the hearing is taking place.
Closed hearings came to the attention of the Open Justice Court of Protection Project when it transpired that a blog post we’d published was “inaccurate and misleading”, because it was based only on information provided in open court.
It later emerged that decisions had been made in closed proceedings (and subsequently implemented) of which the bloggers were unaware. In that case, members of the public, the protected party’s mother, and her legal team were not informed about the closed proceedings.
This case was different in that everybody knew about the closed proceedings, and that they related to a police investigation. Following an application by the Metropolitan Police, heard by Mr Justice Keehan on 8th May 2024, closed proceedings were commenced alongside the open proceedings. It is my understanding that several observers had joined the link for this hearing only to be very quickly removed.
The observers were told that this was a Public Interest Immunity (PII) application. This is a mechanism by which the police can apply to not disclose certain information on the basis that it would ‘create a real risk of serious prejudice to an important public interest’.
At an open hearing on 22nd May 2024, it became clear that a solicitor instructed by the local authority had accidentally disclosed an unredacted bundle, containing information about these closed proceedings, to JB and her representatives. I don’t know what was disclosed but the judge was clear it must not happen again, and Counsel for the local authority apologised to the court.
At a hearing on 16th July 2024, Mr Justice Keehan heard submissions in open court as to whether he should continue to hear some proceedings in closed court. In particular, he heard submissions as to whether JB should continue to be excluded but some level of disclosure could be granted to the local authority and the Official Solicitor. This was opposed by Counsel for JB but the judge approved the application, and so the closed proceedings continued.
It’s now clear to me (given the information discussed in a hearing on the 27th September) that the closed hearings concerned an investigation into the alleged discovery of sexually inappropriate images on B’s devices.
On 28th August 2024, I requested to observe (and was sent the link for) another hearing in this case.
The start of the hearing began on a different note to what I was expecting: it had been listed as for hearing in open court but was actually part of the closed proceedings. I was the only observer present and, after clarifying who I was, the judge permitted me to stay and observe.
As far as I am aware, I am the only member of the public ever to have been permitted to observe a closed (rather than private) hearing. I haven’t shared the details of the hearing with anybody, and nor do I intend to. The fact that the judge allowed me to observe demonstrates his view that members of the public can be trusted to observe closed hearings without jeopardising the integrity of a case.
In any event, as was explained in a public hearing at the end of September, the police investigation had concluded, and it had been decided that no further action was to be taken. That meant the closed proceedings were concluded, and the parties should now (according to the Guidelines) receive full disclosure.
The unsuitability of Placement B – “I do not find it in the best interests of [B] to move”: A hearing in May 2024
This hearing (on Wednesday 22nd May 2024) concerned an application by the local authority for B to move from Placement 1 (where she was residing) to Placement 2. This was opposed by JB, B’s mother, as well as the Official Solicitor. On this occasion (and for the first time as far as I am aware) Alison Meacher, of Gatehouse Chambers, represented B by her litigation friend, the Official Solicitor.
On behalf of the local authority, Counsel submitted that the decision for B to move from Placement 1 will eventually need to be made. Placement 1 is a respite placement, and had only agreed for B to reside there on a temporary basis. On the other hand, Placement 2 “is a longer-term placement for the residents there, so the staff are much more familiar with assisting residents to visit their family”.
It was further submitted that “[Placement 2] is a longer-term placement and the emphasis and focus is on developing skills…Overall, we think that [B] will fit in much better at [Placement 2]”. Furthermore, Placement 2 is actually closer to her family, which would help to facilitate further contact.
The judge was however concerned because he had met B, and she seemed “happy and settled at [Placement 1] and has expressed no desire or wish to leave. And what concerns me at the moment is permitting the local authority to move from [Placement 1] to [Placement 2], when at a final hearing she may be moving somewhere else”.
Counsel for JB had a number of objections to the proposed move. She had concerns (which were also shared by the Official Solicitor) that the draft care plan had “large chunks of information missing”. For example, as Counsel for the Official Solicitor highlighted, the care plan makes no mention that B “has two siblings and a mother who loves her dearly”. Concerns about this were exacerbated by the fact that the proposed new Placement had a low CQC rating.
Of great concern, which was again shared by the Official Solicitor, was that the move would result in B losing all of her professional contacts because Placement 2 was in a different area, covered by a different NHS Trust. In particular this would mean the loss of her speech and language therapist, who has helped B to make progress in communication.
As Counsel for the Official Solicitor put it, the loss of her professional team, particularly the speech and language therapist, “outweighs the proximity of [Placement 2].…Nothing can be done to assuage the need to entirely change [B’s] professional team”.
While acknowledging that this is a “finely balanced application”, the Official Solicitor considered a change in speech and language therapy team to be “very counter-intuitive”, and that this means that the balance “very much falls in the favour of [the judge] refusing this application”.
The judge did indeed accept the force of these submissions. Given what happened at the subsequent hearing, his words are worth quoting in full:
[B is] happy [at Placement 1], she’s told me she’s happy there, she’s told other people she’s happy there. The prospect of what may be a temporary move that she would lose her speech and language therapist and other healthcare professionals whom she knows, and importantly know her, is a factor that weighs very heavily with me. The fact that the Official Solicitor is not satisfied, on the evidence currently available, that [Placement 2] is not the appropriate placement, is a very significant and very powerful factor. Along with the other factors set out…leads me, I regret to conclude, that I do not find it in the best interests of [B] to move from [Placement 1].
“This puts all parties and this court in a difficult position”: A hearing in September 2024
This hearing (on Friday 27th September 2024) was, in effect, the same application but in a very different context. By this time, B’s mother was aware (to some extent) of what the police investigation concerned.
A hearing had been listed for Thursday 3rd October 2024, before Mr Justice Keehan. It seems it was anticipated that, at this stage, he would consider whether it was in B’s best interests to move to a long-term placement or move back home.
However, Placement 1 had made it clear that B would have to leave on Monday 30th September 2024. In the words of the judge (on this occasion, Mr Justice Peel), this was “apparently for financial reasons…They have been unequivocal and inflexible. I have to say that I have found their conduct disappointing, not in the best interests of [B], and short-term-ist…This puts all parties and this court in a difficult position”.
The position statement of the local authority explains that Placement 1 had “incurred legal costs owing to disclosure obligations arising from these proceedings which it (presumably) cannot sustain”. Despite requests for an extension and explanations that further disclosure will be minimal, Placement 1 refused to change its position.
As a result, the local authority made an urgent application to the court to ask it to authorise B’s move from Placement 1 to Placement 2 (that’s the same placement that Mr Justice Keehan previously found not to be in B’s best interests to move to). The local authority had attempted to find another placement but had not received a response from them.
On this occasion, the Official Solicitor (this time represented by Chiara Cordone, of 39 Essex Chambers) supported the application. JB, B’s mother, opposed the application, and asked the court to authorise B’s move back home instead.
The local authority objected to this latter proposal because it continued to have ongoing safeguarding concerns. Despite the fact that the police investigation had concluded, Counsel told the court that this “does not mean that the safeguarding concerns have gone away…There is a context to the original incidents”.
Mr Justice Keehan had previously made an order for the Metropolitan Police to file a statement explaining the decision to take no further action, as well as disclosure of relevant documents. The deadline for this was the 13th September 2024, but the local authority still hadn’t received them (two weeks later).
Due to the apparent failure to comply with this order, the local authority was not in a position to establish whether or not its safeguarding duties had been satisfied. While it was not ideal, Counsel submitted, the court should authorise the move to Placement 2.
The judge was keen to understand exactly why the local authority did not feel B could return home, and asked why (as was being proposed by JB) she couldn’t return home “with practical measures at the house. For example, regular checks on devices, and round the clock care as well?”
The local authority opposed this suggestion because “we don’t think it’s sufficient. The index incident was one of making images – we don’t know the context of when they were made or why…We don’t know the extent of the concerns”.
Even if the safeguarding concerns could be satisfactorily concluded, this does not mean that the local authority would de facto see a move home to be in B’s best interests. This is because of historically difficult relationships between JB and professionals, which was described as “fractious”. If this continued, there is a risk that the placement at home could break down.
Counsel for JB (Alison Harvey) rigorously opposed these submissions. I do not know what she and JB know about the closed hearings, though I think they had been given some information, In my opinion, this was some of the most impressive advocacy that I have ever observed. Her submissions were measured and precise.
They did not rely solely on JB’s own position, though this was expressed clearly and articulately. As I will show, Alison Harvey frequently referred back to JB’s position, presenting it not just as JB’s position but also as representing an objective analysis of B’s best interests.
The submissions also employed the position of the other parties (expressed or implied) to construct the argument that B should return home to her mother. This spoke to a very impressive level of preparation, and it was clear that Alison Harvey was very familiar with the papers. This was all the more important given that the judge hearing the case was doing so for the first time.
Counsel first drew the court’s attention to a care plan from Placement 1 which read: “PLEASE NOTE – supervision is not needed while [B] spends time with her family. Supervision is not needed while [B] has phone conversations with her family”.
This, Counsel stated, demonstrated that the local authority was happy for B to have unsupervised contact with her family, implying that they did not believe B’s mother to pose a risk of harm to her. In fact, “there is no suggestion that her mother has done her harm; the police didn’t even speak to her during their investigation”. Later in the hearing Counsel for the Local Authority agreed with this but explained that their concern was whether JB “kept her daughter safe” – an important distinction.
Counsel for JB made the case that it was in B’s best interests to return home with 24-hour care from carers who were familiar with her. The agency who would provide this care had signalled they would be available, and this (it was submitted) would surely act to prevent any further safeguarding issues.
Counsel told the court that “[B] lived for 29 years at home – the home is wholly purpose-built, it has a lift, you can drive a car right up”. This was a useful demonstration of JB’s level of care and dedication for her daughter. It also acted as a pertinent reminder that the last nine months represent a total fracturing of what B is accustomed to. She has not simply moved away – she has been removed from a familiar environment.
Counsel also raised serious concerns about the way in which JB was being communicated with. In her words:
“We are once again in the position – partly because of the urgency but not totally – where the interim ground rules have not been respected. There is a steadfast ignoring of the best way to communicate with JB and we say that that is at the root of the original concerns that the local authority had about communication, keeping appointments, etc. They have not distinguished between unwillingness and inability. Again, a live-in carer ensures that some of those timetabling difficulties can be picked up.”
Counsel for JB then directed the court’s attention to the position statement of the Official Solicitor, which was filed for the hearing in May. The position then was that the move was not in B’s best interests (in part) because she would not have continuity of healthcare. This lack of continuity was confirmed in the local authority’s position statement for the same May hearing. That hasn’t changed.
In other words, moving B to Placement 2 would disrupt the continuity of healthcare considered essential by the Official Solicitor (and the judge) in the last hearing – so clearly a move to Placement 2 remains not in B’s best interests. Instead, Counsel submitted (again) that she should move home, which has been adapted for her needs.
This is further supported by the fact that, while at Placement 1, B (who is usually a “happy, well balanced, sociable person”) has “deteriorated since the beginning of June”. She has been pulling out her hair, increasingly distressed, and acting aggressively towards care staff. Counsel submitted this is because she was not in a home environment, and that there was a real risk her behaviour would continue to deteriorate at Placement 2.
After hearing submissions, the judge gave an ex tempore judgment. He found that while “some of the points made on behalf of [JB] have validity”, it would be “inappropriate to authorise a return to home in circumstances where there are still lingering questions about the images on [B’s] devices”.
He therefore authorised B’s move to Placement 2, but stressed that this was “very much for an interim, short-term, period”. The judge thought it appropriate, and the parties agreed, that the case should come back before Mr Justice Keehan on Thursday 3rd October.
A final surprise from the Official Solicitor
It is worth repeating that the parties, particularly the local authority, felt they were at a disadvantage because the police disclosure of documents relevant to their investigation, and a statement explaining the decision to take no further action, had not happened. This is in spite of Mr Justice Keehan’s order that it must happen by the middle of September.
In his judgment, Mr Justice Peel commented that “Disclosure by the police of further evidence was due to have been given by the 13th September which should have addressed this matter. That however has not taken place. That is highly regrettable because it would have left the parties in a clearer position today. The consequence, the local authority say, is that there is no clarity as to the concerns, and they point out that safeguarding does not rely on police investigations but on a general overview”.
Indeed, the judge expressly stated that, in his consideration of whether B should move to Placement B or move home, “the main point in my judgment is the question of safeguarding”.
Except, it transpired at the end of the hearing that, in fact, the police had complied with the order of Mr Justice Keehan.
The order about disclosure had made accommodations for the Official Solicitor to see the materials first, who would then decide whether they should be disclosed to the other parties.
As the judge was asking for any final comments from the barristers, Counsel for the Official Solicitor shared that the police disclosure was sent to the Official Solicitor. She (that is, the Official Solicitor) has reviewed the documents, and is now happy for them to be shared with the other parties.
The judge was clear they must be shared prior to the hearing on 3rd October 2024. Surprisingly, he had nothing to say about the fact that (it would appear) the Official Solicitor had received the documents from the police prior to this hearing but had not yet disclosed them.
Of course, I don’t know when the disclosure was made to the Official Solicitor. Given that this was an urgent hearing, it’s possible that the Official Solicitor was planning to process the documents before the hearing at the start of October.
However, I do find it vanishingly unlikely that during the course of this brief hearing (less than an hour), the Official Solicitor received the documents, reviewed them, and was satisfied that they could be shared with the other parties.
It strikes me as self-evident that the hearing could have been conducted entirely differently if this disclosure had taken place just a day before. Whatever these documents say may not have changed the view of the local authority, and it may not have changed the judge’s decision.
But we can’t know that, can we?
Final thoughts
This case, as Mr Justice Peel put it, concerns “sensitive and emotional matters”.
B was removed from the family home to a placement where she was initially settled. She has become increasingly distressed, all against a backdrop of a police investigation.
The plan was for hearings in October to consider B’s best interests in relation to her long-term residence and care. These plans were put on the rocks when Placement 1 refused to accommodate her any later than Monday 30th September 2024, despite only being asked to extend the stay to the end of that week.
Now, the court has authorised a move to a placement that it had previously declared was not in B’s best interests to move to. Of course, this is only for the short-term. However, it is highly likely that she will have to move yet again, either home or to another placement (one has been identified by the local authority). That will be her third move in about ten months.
The behaviour of Placement A has been “unequivocal and inflexible”, and this is “apparently for financial reasons”. Mr Justice Peel described this behaviour as “disappointing”.
I initially thought that these words didn’t quite capture the sorry nature of Placement 1’s behaviour, but Celia suggested that a judge describing your behaviour as “disappointing” is a very serious matter indeed. Far from being “light-touch”, it can be reasonably understood as a judicial reprimand.
So, “disappointing” might not be the word I’d use. But I don’t have to rely solely on that word because I’m not a judge.
In my view, the events at the end of September are once again an example of financial interests steering the Court of Protection ship. It appears to be only money that means the court has had to revisit a previous best interests declaration, and essentially renege on its original position in order to endorse a move to Placement 2.
Of course, it isn’t only in the Court of Protection that this happens.
Budgetary constraints and financial concerns mean that, every day, local authorities and NHS Trusts are limited in what they can offer a person. Sometimes the funding for a package of care, assessed as being in a person’s best interests, is withdrawn. The person’s best interests haven’t changed; the pot of money available has changed.
When this happens, those providing support have their hands tied. That includes judges – they cannot compel a private business to do something that it says it cannot afford.
So, when a respite placement decides to evict a person living there (as in this case), a judge can only prevent that from happening when the placement has acted unlawfully. All a judge can do (in the words of Sir James Munby P) is engage in, “rigorous probing, searching questions and persuasion”.
I imagine that, when this case returns to court, Mr Justice Keehan will do just that.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
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