“It is a process that isn’t fair”: Structural injustice in the Court of Protection

By Daniel Clark, 24^th November 2024

The words, “it’s a process that isn’t fair”, were uttered towards the end of the hearing on 21^st November 2024 by Alison Harvey, counsel for the protected party’s mother in this case.  It’s rare to hear barristers explicitly criticise the fairness of court proceedings – and in this case, I think she is right.

The protected party, B, was taken into care in January 2024. Her mother, JB, desperately wants her to return home, but this has been opposed by the London Borough of Lambeth and by the Official Solicitor.  In the last 11 months, the court has authorised first taking B away from her family and putting her into care, and then her continued deprivation of her liberty in unsuitable placements where she is “suffering” (according to her mother) followed by a third move to another placement rather than a return home.  

This case (COP 14116349) has been heard by Mr Justice Keehan, who has been sitting remotely (via MS Teams). Counsel for the parties has remained the same throughout October and November: Sebastian Elgueta, of Garden Court Chambers, represented the applicant local authority. Alison Meacher, of Gatehouse Chambers, represented B via her litigation friend, the Official Solicitor. Alison Harvey, of One Pump Court, represented JB, B’s mother. 

I will begin, in the first section below, with a brief background to this case. Second,  I will discuss a hearing on 3^rd October 2024, where the judge refused an application for B to move home. Next  in the third section, I will discuss a hearing on 31^st October 2024, at which concerns about a Working Together Agreement, and contact between B and her mother, were raised.  In the fourth section, I’ll  report on a hearing on 21^st November 2024 at which the judge found it was in B’s best interests to move to Placement 3 rather than move home. Finally, in the fifth section, I reflect on counsel’s explicit statement that the process “isn’t fair” to B’s mother, and I say that this can be best understood as a structural injustice. 

1. Brief background

Here’s a very brief background to what is becoming a long-running case. I have previously observed five hearings in this case and blogged about them in a single post here: Closed hearings, safeguarding concerns, and financial interests v. best interests. 

This case first came to court in 2023, when the local authority applied to the Court of Protection for an injunction that would guarantee access to the protected party (B) for the purposes of assessment – access which, they said, was being frustrated by her mother. 

In December 2023, serious allegations concerning sexually inappropriate images on B’s devices 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. 

In 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. 

For much of 2024, there were concurrent closed proceedings^[1]. These are hearings from which the judge orders exclusion of a party and their legal representatives. This may give rise to disadvantage for the party that a judge has directed be excluded but they are perfectly lawful. In this instance, the judge excluded the protected party’s mother, from these hearings because they concerned the police investigation. 

On Wednesday 22^nd May 2024, a hearing I observed in open court, Mr Justice Keehan heard an application by the local authority for B to move from Placement 1 to Placement 2. This was opposed by her mother and by the Official Solicitor, and the judge did not accept that the move was in B’s best interests.

On Friday 27^th September 2024, I observed in an urgent hearing in which Mr Justice Peel (hearing this case for the first time) considered the same application. This time, however, it was brought because Placement 1 had said B would have to leave just three days later, on Monday 30^th September. On this occasion, the move was only opposed by B’s mother. Peel J authorised the move to Placement 2, stressing it was “for an interim, short-term, period”. 

Since my last blog post there have been three further hearings: two in October 2024, and one in November 2024 in advance of P’s move out of Placement 2 which is projected to take place in the final week of November.

 I’ll explain what happened at the first hearing briefly, and then the second two in more detail.

2. The hearing on 3^rd October 2024: A best interests decision between Placement 2 and returning home, pending a move to Placement 3

This hearing was already in Mr Justice Keehan’s list and was intended to consider B’s move from Placement 1. Notwithstanding the fact that B had already moved, Mr Justice Peel directed (and the parties agreed) that this hearing should still take place.

It transpired that the local authority had identified another placement, Placement 3, that they think would be more suitable for B (who had, by this time, moved to Placement 2). In the interim they, and the Official Solicitor, considered it to be in B’s best interests to remain at Placement 2. 

Counsel for B’s mother submitted that staff at Placement 2 “have been very kind to [her mother] – I know they’ve been anxious to support her, support [her daughter]”. However, Placement 2 is “a frightening place that is more restrictive, it is simply not in her best interests”. Another resident, who should receive 1-to-1 care, has been entering B’s room, and has been threatening toward both mother and daughter. 

Counsel for B’s mother further submitted that the court should authorise an interim move home. 

The judge however was “not persuaded…I am fortified in that conclusion by hearing today that the relationship between [B’s mother] staff and the manager is very much improved…In relation to the issue today, I endorse the placement in the interim of [B] at [Placement 2]…We will consider the issue at the hearing on the 31^stOctober”.

3. The hearing on 31^st October: Problems at Placement 2 – a “Working Together” agreement and concerns with contact

It was immediately clear from the opening summary, provided by Counsel for the local authority, that the situation at Placement 2 had become worse. 

As set out in the position statement filed on the mother’s behalf, her daughter’s door is – on occasion – locked to prevent access from residents who have previously attacked her and tried to attack her daughter.  The daughter is also distressed by the screaming and shouting of other residents, and she is currently washed on her bed because there is no safe alternative. Furthermore, she has been experiencing a lot of pain, with an ambulance called for her on numerous occasions. It also appears that information is not flowing freely between Placement 2 and the local authority.

It also transpired that disclosure of care notes from Placement 1 have revealed an incident in which B was found (twice) with a man whose hand was on her leg. She became distressed when asked to leave this man’s company. While the parties did not know of this at the time, it appears this incident coincided with when B’s behaviour began to deteriorate (for example, she started pulling out her hair).  

I have split my report of this hearing into three primary issues: 3.1. a Working Together agreement that contains what were described by Counsel for B’s mother as “in effect unfounded allegations” against her; 3.2 communication issues with mother; 3.3. concerns raised about contact between mother and daughter, and how this affected the mother’s application for B to move home on an interim basis. 

3.1 The Working Together Agreement 

In his submissions, Counsel for the local authority said the court was initially going to be asked to approve a Working Together agreement. It was now decided that everyone should “continue working with [B’s mother] to arrive at an agreement” without the need for a court order.

A Working Together Agreement is a document that provides assurances (given by all sides) as to how individuals and agencies will interact to best support and safeguard a person. I had only ever heard about them in the context of supporting children, though Avaia Williams has blogged about a case in which a Working Together Agreement was drawn up to express expectations of conduct. In a similar way to this case, the Agreement was between a residential placement and P’s mother. 

Both the local authority and the Official Solicitor seemed to be of the view that that this document is a positive step forward, and that it will be possible to put it into place soon.

Counsel for B’s mother disagreed. In my previous blog, I reported that Alison Harvey’s advocacy was of an impressive standard. Things were no different at this hearing. In her submissions, she stated that the Working Together Agreement is “more like a behaviour expectations document and it does include what are in effect unfounded allegations against [B’s mother], disguised as expectations”. 

Counsel drew the Court’s attention to the fact that the document states that B’s mother should not visit B while under the influence of drugs or alcohol. This seems to be based on two sources. First, there was one reference, in a meeting record contained in the bundle, to there having been a historical report of a cannabis smell at home. There was no suggestion B’s mother had anything to do with this. 

Second, a carer from Placement 1 had recorded in B’s care notes that, when she and JB were assisting B to put on a cardigan, the carer could smell alcohol on JB’s breath. Counsel’s submissions on this were brief and to the point: “Well, [B’s mother] doesn’t drink so, no, she couldn’t [smell alcohol] and [Placement 1] have not proved a reliable record keeper.”

The mother’s Counsel resolutely rejected the suggestion that the mother has done something wrong, and reminded the judge that this position was supported by the police having not interviewed JB and having decided to take No Further Action. 

3.2. Communication between other parties and the mother

A consistent issue raised throughout these proceedings has been that B’s mother has some difficulties in processing all of the information related to the case. There are therefore some interim ground rules that the other parties must follow, including submitting evidence in a timely manner so that her legal team are able to take full instructions. 

These ground rules are not being followed, and Counsel for B’s mother submitted that the late filing of evidence (which I will address in the next section) “would be unacceptable in any legal proceedings, certainly not in these proceedings with the ground rules…We are not even seeing from the Official Solicitor the respect for the spirit of the ground rules when they cannot be followed to the letter…It’s not acceptable”. 

The judge, in a brief ex tempore judgment, acknowledged these submissions. He said, “I take on board the issues raised by Ms Harvey on behalf of the mother, about her and those whom she instructs receiving information late in the day, which, as Ms Harvey puts it, compromises to a degree the mother’s ability to engage in these proceedings. That must be avoided at all possible costs”. 

It seems to me that any continued inadequacy in the communication between the parties and JB may well violate JB’s Article 6 right to a fair trial. The Court of Protection is being asked to significantly interfere with her Article 8 right to a private and family life – so on grounds of equality of access to justice, she must be provided with the support she needs to be  able to engage fully in the proceedings. This is not just down to the role of the parties – the court also has an active duty to ensure that she can fully engage.

3.3 Concerns about contact

The reference to the Official Solicitor not following the communication ground rules was made because the legal team for B’s mother were told six days before the hearing that a solicitor (acting on behalf of the Official Solicitor) had visited B and reported that B had said she did not want to see her mother. 

B’s mother’s legal team did not know until the day before the hearing that there had been another visit, where B expressed the same views, on the 9^th October. If they’d known on that date (or shortly thereafter), they would have had plenty of time over the next few weeks to receive instructions. As they did not find out until six days before the hearing (which was also just before a weekend) they could not gain full instructions on this point. 

In the words of Counsel for B’s mother: “we were beyond disappointed – we were angry”. 

In her submissions to the court, Counsel for the Official Solicitor explained that the Official Solicitor’s “main concern…is that the wishes and feelings expressed to those instructed by the Official Solicitor who have visited [B] is that she doesn’t want to see [her mother] or she only wants to see [her mother] at her request”. 

I have observed every public hearing in this case since January 2024, and nothing like this had ever been suggested before. It has been a consistent theme that mother and daughter are extremely close.

Counsel for JB submitted “we do not agree with what was said in that statement. It has been taken by a solicitor when [B] is not wearing her hearing aids and not with a Speech and Language Therapist” in attendance. Furthermore, B had told a Best Interests Assessor, after meeting with the solicitor on 9^th October, that she did want to go home. 

However, Counsel for the Official Solicitor told the court that the solicitor visited B again, with a Speech and Language Therapist, after the visit of the Best Interests Assessor. On this occasion, B again expressed that she did not want to see her mother except by invitation. This is also the reason B’s mother’s legal team did not find out after the visit on 9^th October  – the solicitor wanted to be sure that they had understood properly. 

Counsel for B’s mother submitted that the current plan was for B to be asked weekly when she wants to see her mother. However, this type of planning wouldn’t work because B makes plans in the here and now. Instead, Counsel submitted, B should be asked in the presence of her mother whether she wants to see her.

The judge said he found this that was not “a very good idea or a workable plan…It may be that she [B’s mother] is, on occasion, present. But it must not be the case that she [B] can only be asked when her mother is present”.

Counsel for B’s mother accepted this, though pointed out that, “we are in the situation which has been raised before…B says what she thinks others want to hear. And just as there is a problem with speaking in front of her mother, there may be a problem with other people as well. It is important that her wishes and feelings are obtained where she doesn’t feel a certain answer is the desired answer. And we need to think very carefully about what she is asked and by whom”. 

During these submissions, I did recall that, during a previous hearing, it had been mentioned that B sometimes may respond to questions in ways that she thinks somebody wants her to answer. Indeed, the judge appeared to see some force in these submissions – he was nodding while they were being made.

The thrust of the submissions made on behalf of B’s mother was that B should return home while plans for Placement 3 were being finalised. Then, at another hearing, the court could decide whether it was in B’s best interests to move to Placement 3 or remain at home. 

However, the judge found that “at the moment it would appear that [B] does not want to have contact with her mother and that, for no other reason, means I cannot accede to [her mother’s] request that [B] move in the interim”. He was nevertheless clear that the local authority must “heighten its vigilance of [B’s] stay [at Placement 2]”, and the issue of contact “needs to be addressed as a matter of urgency”. 

4. Hearing on Thursday 21^st November 2024: Judge rules P should move to Placement 3 (not home)

At the end of the last hearing, Mr Justice Keehan indicated that he would be content to deal with an application for a move on the papers (that is, without an in-person hearing). However, if that was not possible, he had space in his list for a hearing on 18^thNovember. 

When 18^th November came and went without a hearing in the daily list, I assumed that the matters had been dealt with on the papers.

I was therefore surprised when I saw this case in the daily cause list for 21^st  November (I later found out the hearing was moved at the request of the local authority, though I don’t know why). As it was listed for the morning, I was able to observe and sent my request for the link to the court the evening before. 

This was dealt with expeditiously by the court staff, and a solicitor acting for the local authority also sent me the position statements filed on behalf of the local authority and (after checking with her Counsel) that of B’s mother.  As is a common theme in this case, I never received the position statement of the Official Solicitor. 

It became clear from reading the position statements that the hearing was to be about a proposed move from Placement 2 to either Placement 3 or home with her mother. The position statement on behalf of B’s mother explained that, while she wanted B to move home, she would rather B move to Placement 3 rather than remain at Placement 2. 

The position of the local authority and the Official Solicitor was that it is in B’s best interests to move to Placement 3 because this will help her to develop some independent living skills. She would have a flatmate who both parties considered to be “compatible” with B – a phrase that evoked images (in my mind) of a type of conveyer belt social care where people live together without having had the chance to decide for themselves whether they actually get on. 

Counsel for B’s mother submitted that there was no reason that B could not develop independent living skills at home. B’s mother also disputed the “compatibility” of B with the other flatmate due to (possible) differences in their respective abilities and level of independence. 

Concerns about contact remained. Counsel for B’s mother disputed that B does not want to see her mother, submitting that the questions put to her on this matter are complex and misleading. The Speech and Language Therapist is, she submitted, acting as an intermediary but this is an inappropriate role for them to take on. 

Counsel for B’s mother gave specific examples of how these questions were leading. She submitted that an attendance note filed by the Official Solicitor detailed that B was asked, “do you want to see [name]?”, and so on. However, when it came to questions about seeing her mother, the structure of questioning changed. Counsel told the court that the question became: “Remember you didn’t want to see mum? Well, is that still your view?”

Neither Counsel for the Official Solicitor nor Counsel for the local authority disputed this characterisation of the way the questions were posed. Having not seen the attendance note, I can only assume that this is an accurate report of how the questions were asked. This is yet a further example of the way in which B’s mother is being continually disadvantaged.

Counsel for B’s mother submitted that B “is being passed around like a parcel. We have seen a decline in her physical health, her mental health, how she describes herself as feeling. There’s no question – she is not the same as she was at the start of these proceedings”. 

Rather than a “rushed third transition”, Counsel submitted that B should return home to live with her mother. A transition plan could be perfected, and the court could decide whether B should remain at home or move to Placement 3 at a later hearing.

In a brief ex-tempore judgment, Mr Justice Keehan said this: “The Official Solicitor is satisfied that the discussions that have taken place with B have elicited her current wishes and feelings and, in particularly and importantly, for whatever reason, B does not wish to see her mother. On the basis of the evidence and submissions presented to me…I consider it is in B’s best interests to move to Placement 3. In any event, I do not consider it in her best interests to move home, not least because she does not wish to see her mother. Hopefully, for the benefit of B and her mother, that will change, and there will be a resumption of contact between them in due course”. 

5. Reflections on a concerning case

I have been observing this case since January 2024, which means that I have been able to trace the subtle changes in the positions of the parties.  

Throughout this year I have had a feeling, which has been growing in intensity, that B’s mother is significantly disadvantaged in this situation despite the skilled advocacy of her barrister. As her barrister put it at the end of her submissions on 21^st November, “it is a process that isn’t fair at the moment despite efforts to make it so”. 

In particular, the closed proceedings in the case have disadvantaged the mother and her legal team because they were excluded from knowing what was happening during a police investigation. Now, a Working Together Agreement contains what B’s mother describes as “in effect unfounded allegations”  against her. 

The position statement filed on behalf of B’s mother for the hearing on 21^st November says that this agreement, as it stands, would only prejudice carers against her. This draft, the position statement goes on to say, has further persuaded her that professionals “appear determined to think the worst of her and to present her in the worst possible light”. 

These problems are exacerbated by the fact that, despite clear instructions from her legal team concerning communication, the parties are not following these ground rules. 

This is all the more worrying that it is the case of her legal team that the breakdown in communication which triggered the original court proceedings was due to ignoring the best way to communicate rather than conscious evasion on the part of B’s mother. As Counsel for B’s mother put it in an earlier hearing: “There is a steadfast ignoring of the best way to communicate with [B’s mother] 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.”

All of this is placing B’s mother at a significant disadvantage. I am quite confident that these disadvantages amount to a what the political theorist, Iris Marion Young, calls “structural injustice”.  

A “structural injustice” is not one in which individual actors consciously choose to cause injustice to others. Instead: “Structural injustice exists…when social processes put large groups of persons under systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time that these processes enable others to dominate or to have a wide range of opportunities for developing and exercising capacities available to them. Structural injustice is a kind of moral wrong distinct from the wrong action of an individual agent or the repressive policies of a state. Structural injustice occurs as a consequence of many individuals and institutions acting to pursue their particular goals and interests, for the most part within the limits of accepted rules and norms” (Iris Marion Young, Responsibility for Justice, p52).

I do not doubt that the majority of those who work in the legal and social care sector want to do what is best. For the most part, they are neither malign actors nor consciously working to exclude and disadvantage. 

However, the theoretical force behind the concept of structural injustice is that we can describe certain processes (like closed proceedings) as an injustice without also making a claim that those who engage with them are bad actors. 

Rather, certain structural processes mean that certain classes of people are disadvantaged while others are not. They are acting “within the limits of accepted rules” – like closed proceedings and the creation of a Working Together Agreement that makes family members feel like they are seen as a problem. For example, the Working Together Agreement in this case says that B’s mother should not be abusive to carers without also including a comparative commitment that carers will not be abusive to her.

Just as family members excluded from hearings feel that the court suspects them of doing something wrong, so too a ‘Working Together Agreement’ to regulate contact with professionals clearly signals some perceived problem in the way they have previously conducted themselves in relation to those professionals, a problem that the agreement is designed to ‘put right’.  

Family members are structurally disadvantaged both by closed hearings and by Working Together Agreements because both are initiated by others to “manage” families who are thereby positioned as posing some kind of risk either to the justice system or to the health system, such that extra-ordinary practices need to be adopted in relation to them.

The Court of Protection needs to acknowledge this head-on if it wants to mitigate the disadvantage and injustice that family members can feel themselves to be experiencing.  

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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^[1] _{Members of the public are ordinarily also excluded from closed hearings, though Mr Justice Keehan did permit me to observe one (at the end of August 2024). I haven’t reported on the contents of this hearing and I am not allowed to do so. But, as I also stress in my previous blog, “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” – so permitting me to observe does represent a positive move for social justice.}