By Daniel Clark & Kim Dodd, 23rd December 2024
Like many other people, the protected party, CA, goes to church on Christmas morning and then enjoys spending the rest of the day with her family. She has done this for many years. Following court orders that all contact with her daughter must be supervised, a carer will need to be present at all times.
Her daughter (DA) wants this family occasion to be unsupervised between 8am and 8pm on Christmas Day.
On Tuesday 10th December 2024, Mrs Justice Arbuthnot, sitting remotely (via Cloud Video Platform) at Cambridge County Court, heard this application.
The parties in this case (COP 14187074) have had the same representation in Court of Protection proceeding since July 2024. Oliver Lewis, of Doughty Street Chambers, represents Norfolk County Council. Malcolm Chisholm, of 1GC Family Law, represents CA via her litigation friend, the Official Solicitor. DA represents herself as a litigant-in-person, and she is supported by a McKenzie Friend.
Oliver Lewis was joined by Jordan Briggs, who is undertaking Doughty Street Chambers’ first specialist Court of Protection pupillage. As it happens, Jordan is the co-author (with Celia Kitzinger) of the only Open Justice Court of Protection Project blog that considers an application for contact (between mother and son) over Christmas. Unlike the application that this blog concerns, that application was dismissed in its entirety (see: Covid vaccination and a Christmas visit).
This blog will (1) present the background to this case, informed by two blogs previously published by the Open Justice Court of Protection Project as well as a judgment published in October. Next (2) it will discuss issues relating to transparency before (3) addressing an expert report by Professor Dubrow-Marshall about a potential treatment for CA’s daughter. Then (4) the blog will address the substantial matter before the court – an application for contact on Christmas Day to be unsupervised. It concludes with reflections by (5) Daniel Clark and (6) Kim Dodd on their concerns with this hearing.
In this blog, we uses the same initials as those used by Mrs Justice Arbuthnot in her published judgment to refer to the mother (CA) and her daughter (DA): Norfolk County Council v C & Ors [2024] EWCOP 64 (T3). There is no disrespect intended to the family.
1. Background to the case
The protected party, CA, is in her seventies and has a diagnosis of Alzheimer’s Disease. That diagnosis, Mrs Justice Arbuthnot notes in her published judgment, may not have been the correct one (§3).
We blogged about this case before when it was heard by HHJ Beckley back in January 2024 (“When two legal teams turn up in court to represent P: Disputed capacity to conduct proceedings“). The judge was asked to make declarations as to whether there was ‘reason to believe’ that CA lacked litigation capacity. She disputed this, and was joined in court by her own choice of legal representative. A representative of the Official Solicitor was also present. HHJ Beckley concluded that, “I do have reason to believe that she lacks capacity to make decisions in relation to this litigation.”
This meant that CA’s own legal team was dismissed and the Official Solicitor acts for her. The judge also decided that there should be a capacity assessment for contact, and a fact-finding hearing to establish whether CA’s daughter exerts coercive control over her. In the meantime, her family gave an undertaking (which is a legally binding promise) that they would only have contact with CA if a carer was present to supervise.
The local authority made clear at the January 2024 hearing that, if CA is found to have capacity to make decisions about contact (so cannot be prevented by the Court of Protection from choosing to have contact with her daughter), they will then apply for restrictions to this contact under the “inherent jurisdiction” of the High Court.
It was therefore not surprising that, by June 2024, the case had been transferred to the High Court for hearing by Mrs Justice Arbuthnot. At this hearing, (blogged here:Complex issues for the court and plans for an ‘omnibus’ capacity hearing), it was decided that there would be an “omnibus” hearing to consider all aspects of CA’s capacity at the end of July 2024. As it turned out, that hearing was adjourned to give an expert, Dr Barker, the opportunity to further assess CA’s capacity to make decisions across multiple domains.
In a multi-day hearing at the start of October 2024, the court conducted a fact-finding exercise. The subsequent judgment (Norfolk County Council v CA & Ors [2024] EWCOP 64 (T3)) details multiple allegations made by Norfolk County Council that amount to allegations that CA’s daughter has acted in an abusive and threatening manner toward her mother, and exerts coercive control over her. These allegations included calling her mother a ‘drug addict’ (§26), holding a wet continence pad in her mother’s face and saying ‘have you pissed yourself again, mum’ (§28), attempting to force feed her mother pizza (§39), and throwing lasagne over her mother’s head (§48). There was also a suggestion that DA had ‘spoken of [taking her mother to] Dignitas in Switzerland’ (§47), and threatening that she will be moved to a care home (§64).
While CA’s daughter accepted that some of these things happened, she contested many of them. It was, in the words of the judge, her belief ‘that the local authority are “out to get her”’ (§67). The judge did not accept this and, ‘on the balance of probabilities…[found] the allegations proved’ in their entirety (§71). She considered ‘that CA is subject to the undue influence of her daughter in a number of different ways…it is clear…that CA says what she thinks her family would like her to say’ (§70).
The judge also heard evidence relating to CA’s mental capacity to make decisions across various domains. The judge found that CA lacks capacity to litigate, to make decisions about her care, and to manage her property and affairs. However, she does have capacity to make decisions about contact with her daughter, as well as enter into (and revoke) an LPA for health and welfare.
Finally, the judge considered whether contact restrictions could be authorised under the inherent jurisdiction of the High Court. This is a legal mechanism by which the court can make orders to protect “vulnerable” adults who otherwise have the mental capacity to make the specific decision.
The judge used the inherent jurisdiction ‘to impose a supervised framework around contact’ (§142). This meant that all contact between CA, her daughter, and her ex-husband would be supervised by one of her (live-in) carers. The judge was fortified in this decision because a graph, presented by CA’s social workers, showed a decline in the number of “incidents” since the daughter had made undertakings about contact.
The judgment sets out plans for three further hearings. One in December 2024 (the subject of this blog); a second in January 2025 to consider ‘an application for committal for contempt for alleged breaches of undertakings given to the Court in February 2024’; and a two-day final hearing in April 2025.
2. Transparency Matters
Following the hearing, another observer (and member of the core OJCOP team) Amanda Hill and I both contacted Oliver Lewis (for the local authority) and Malcolm Chisholm (for the Official Solicitor) to ask for their position statements. We also asked Malcolm Chisholm if he would extend our request to CA’s daughter.
It is extremely unusual to receive the position statement of a litigant-in-person (both of us have tried and failed previously). Quite often, receipt of position statements makes clear the position of the statutory bodies, while we have to rely on the oral submissions that a litigant-in-person made during a hearing. So we were pleased when it was confirmed that DA would be happy for us to be sent a copy of her position statement.
Before we could be sent these position statements, the judge (Mrs Justice Arbuthnot) needed to give her permission. This is because all documents submitted to the court become, essentially, the court’s property – it is for them to decide who receives them. Malcolm Chisholm had been in contact with the judge’s clerk to make this request, and then chased it a few days later. We were very grateful when he confirmed that the judge was content for the position statements to be shared, and he sent us the position statement he filed on behalf of the Official Solicitor. At the time of writing, we have not received the position statement of either the local authority or DA.
3. Expert report of Professor Dubrow-Marshall
By the time of the hearing on 10th December 2024, Professor Dubrow-Marshall, a specialist in coercive control, had spent somewhere between five and eight hours with CA and her family. He considered the relationship between CA and her daughter to be ‘enmeshed’, but that he could offer therapeutic intervention.
This intervention would take the form of four sessions with CA, four sessions with DA, and then four sessions with other members of the family. It was not explained what these sessions would involve, though the Official Solicitor’s position statement describes them as “a form of one to one therapy” and “a set of interventions” complemented by one -to-one sessions with individual family members. The aim is to increase understanding of how loving relationships can spill into coercive control without those involved realising it.
Given the amount of time already spent with the family, the Official Solicitor had confirmed with Professor Dubrow-Marshall that these sessions could be truncated – that is, fewer sessions may be possible. He could also offer some sessions in the run up to Christmas, which would allow him to predict both how many further sessions were needed, as well as how much that would cost.
The local authority and Official Solicitor commend this report, and think that the sessions would be of benefit to DA and CA. There was, however, a sticking point – the local authority would not fund them because they are considered “treatment”, and the onus would be on DA to self-fund these sessions. The cost was not given in court nor in the Official Solicitor’s position statement, but it was clear that they are expensive.
It was quite clear from DA’s oral submissions that the cost may be prohibitively expensive, and she’d rather receive counselling from a trusted person with whom she has previously had counselling. The brief discussion on this point went like this:
DA: I have spoken to him [Professor Dubrow-Marshall] …openly and transparently…We have talked about the case, our feelings….I’m going to see my GP and am going to ask for more counselling, funded by the NHS… I have opened my heart up to him, he has given me coping strategies.
Judge: You are saying that essentially “the sessions are done, I can’t pay for more and I want to go down the counselling route”.
DA: Yes.
While the judge’s summary may be a more concise version of what DA submitted, it left quite a glaring omission in the sense that DA did recognise some benefit from having met with Professor Dubrow-Marshall. She also clearly thought that counselling via the NHS would be helpful for her, and it wasn’t entirely clear to observers what the difference (apart from cost) would be.
Toward the end of the hearing, the judge put this matter like this: “The key is with [DA]. I can’t order the local authority to pay for the work that Professor needs to conduct…She must realise that, if she’s not going to provide the evidence that the court will need, all of us will be looking at an unchanging risk. We might be able to have limited unsupervised contact.”
It sounded to me like DA was being given a choice: fund these therapy sessions yourself or contact with your mother will remain, for the most part, supervised. This occurred to DA too, who asked, “Are you basically saying that if I don’t agree and pay for it, I won’t be able to have unsupervised contact?” The judge said “no” to this but I’m struggling to imagine what else this could mean – presumably that there would be some limited unsupervised contact.
It also wasn’t clear that DA understood what the treatment would actually be (the judge told her to read the Professor’s report to find out).
So, in sum, DA is being asked to undertake treatment that she doesn’t seem to fully know the nature of, and then pay for that treatment with absolutely no support for the costs.
The judge told DA to discuss it with her family.
4. Christmas contact
The majority of this hearing was taken up with a consideration of an application from DA for 12 hours of unsupervised contact on Christmas Day. The initial submissions were as follows:
DA: Good afternoon Your Ladyship…. I would love all of Christmas Day with my mum and my family , as has been the case for [over 50 years]…. We would like our time back together for the day…. That would involve [DA’s partner, Mr H] who isn’t supervised…. it would be [Mr H] cooking for mum which would be from 8am, which I thought respectful to carers…. It would be a travesty for my family not to have Christmas together.
Judge: You could obviously have Christmas together. You’re saying Christmas together but unsupervised. The order doesn’t prevent you having Christmas together…Why is it a problem that it should be supervised?
DA: It’s the intrusion. I feel when we have the carers here – we’re being looked at, we’re being written about. We don’t have time to be together…. Last year I did go for a court order to have it unsupervised and it was lovely [at this point, DA became visibly upset and started crying] Please, just Christmas Day. Let us be alone as a family again. Sorry I am emotional. I shouldn’t be. That’s my application. I request it.
Mr H, DA’s partner who has no restrictions on his contact with CA, explained that last year the family had unsupervised contact from 8am-8pm. He would be doing the cooking, and would be present throughout. In essence, he was quite willing to say that he would effectively “supervise” the situation.
The judge was keen to drill into the detail, asking how he would manage supervising, cooking, and going to church. Mr H was clear this it was perfectly manageable, and that they could plan more precisely the day before – including doing some food preparation. This did strike me as a somewhat peculiar line of questioning. Many people attend church, cook, and spend time with their family on Christmas Day – I wasn’t altogether clear why the judge seemed to imply that this would be difficult.
The position of the local authority was that the risks associated with contact at Christmas were the same as in January and October, and that 12 hours of unsupervised contact would be too long. However, they agreed with the Official Solicitor’s proposal (discussed below) that there should be two hours of unsupervised contact per day in the run up to Christmas.
However, where the local authority differed with the Official Solicitor is that the local authority did not treat Christmas Day as a reason to make an exception concerning contact. Therefore, they only supported two hours of unsupervised contact on Christmas Day.
Counsel for the Official Solicitor submitted, first, that CA appears “more relaxed than she was in October”, and she had told a solicitor that, “things seem to have settled down and [DA] accepts I’m not as bright spirited mother as I once was and she treats me accordingly”. The Official Solicitor’s position statement paints a more detailed picture. It explains that CA thinks she and her daughter better understand each other now, and she’s happy with the fact that her daughter visits every day.
The position of the Official Solicitor was that 12 hours of unsupervised contact would be too much. However, the Official Solicitor thought that unsupervised contact was possible. This would be best starting as soon as possible after the hearing, for a period of 2 hours every day (to correspond to a time when the live-in carer has a break, and ordinarily another carer takes their place). This would mean that unsupervised contact on Christmas Day would not be a sudden departure from the norm, and that short periods of unsupervised contact in the weeks before Christmas could in essence stress-test the proposition that unsupervised contact is safe for CA. In turn, this would mean that contact on Christmas Day could be longer.
The judge decided that “there should be two hours of unsupervised contact as soon as possible, and six hours on Christmas Day with the expectation that [Mr H] will be present…but the injunctive orders I’ve made still apply. It will be unwise in the extreme to bring up the care homes or Switzerland or anything else you’ve brought up in the past. Don’t do that. It will become evidence and then it becomes even less likely you’ll continue with unsupervised contact. If there are problems, I can bring this into my list with very little difficulty indeed”.
The judge seemed to trust that Mr H would intervene if DA did begin to talk about these things, describing him as a “decent normal human being”. The implication, of course, was that DA is not. When there was a reference to DA not accepting some of the judge’s findings (DA disputed this), the judge said, “that’s her personality. That’s the type of person she is”. Mr H gave a promise that he would be present throughout the day but this was not, at first, enough for the judge. She wanted to go further stating, “I think I will ask you to give an undertaking” (my emphasis).
As another observer, Amanda Hill, pointed out after the hearing, to most lay people, there isn’t really a difference between making an “undertaking” and a “promise”. But in the law, these are two very different things. An “undertaking” has a penal notice attached. If you breach it, it’s like breaching a court order – you can even be sent to prison. We’re both certain that’s what the judge meant here.
Luckily for Mr H, Malcolm Chisholm picked up on this point towards the end of the hearing, as he suggested that there should be a “light touch approach, not a formal undertaking” and the judge agreed to that.
5. Daniel Clark’s reflections
There were times during this hearing when I got the impression that DA and the judge were speaking past each other.
For example, when DA made her submissions that, “it would be a travesty for my family not to have Christmas together”, the judge’s response stuck out to me: “You could obviously have Christmas together. You’re saying Christmas together but unsupervised. The order doesn’t prevent you having Christmas together”. The judge’s response struck me as somewhat pedantic. It was quite clear what DA was asking for, and also why she was asking for it. To say “you could obviously have Christmas together” (my emphasis) doesn’t engage, in any meaningful way, with the emotion that lay behind the submissions. The judge’s response may represent a technically legal truth. But how many people would consider that having their every interaction supervised amounts to what they mean by having Christmas with their family? I certainly wouldn’t.
A similar thing happened when discussing Professor Dubrow-Marshall’s proposed treatment plan. DA’s preference is to have counselling with somebody she knows and trusts. The judge, however, put it somewhat differently, saying: “you are saying that essentially ‘the sessions are done, I can’t pay for more and I want to go down the counselling route’”. As I noted above, this left out the fact that DA did recognise some benefit in having met with Professor Dubrow-Marshall.
There were two approaches being taken in this hearing. On the one hand, the judge was concerned with emphasising what is technically, legally, true, and also summarising DA’s (at times lengthy) submissions. But, on the other hand, DA was (like most of us would be) concerned with the practical and emotional implications of those orders. This was either ignored or missed by the judge.
It’s also worth noting that CA was present throughout this hearing, seated next to her daughter in what looked to be her living room. On multiple occasions, DA asked the judge whether she would like to hear from CA. On a couple of occasions, it looked like CA was starting to say something. Every time, the judge declined the offer. I found this uncomfortable. I’ve observed many hearings in which P has been present and, if they’ve asked to speak, the judge has agreed. In fact, the Court of Protection’s rules state that “P should have the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur” (§2(d)). For whatever reason, that didn’t happen in this hearing. Perhaps it’s to do with the judge’s assessment (discussed in section 1) that CA may say what she thinks her family wants her to hear. Perhaps the judge thinks that she doesn’t need to hear from CA because she is represented by the Official Solicitor (though the Official Solicitor can present a case that is different to what P wants them to present). Whatever the reason, it seems to me that there’s a very real risk the person at the centre of this case could get lost.
6. Kim Dodd’s reflections
At the end of this eighty-minute hearing, the judge ordered that the family would be allowed six unsupervised hours together on Christmas Day, with, at the Local Authority’s suggestion, some two-hour unsupervised (practice?) visits to be arranged in the interim. The judge closed the hearing by wishing participants a ‘Happy Christmas’. I don’t know how P and her daughter (or my fellow four co-observers) felt after the hearing. I felt distinctly uncomfortable.
There are two versions of this story. According to P’s daughter, social and care workers have made some false allegations about her, resulting in deep injustice and a breach of her family’s Article 8 rights, and she is emotional and angry about this ‘vendetta’ against her. The other version, preferred by the Court, is that, given the ‘findings’ the Court has made about the way the daughter has behaved towards her mother, such interference meets the required threshold of being ‘necessary and proportionate’.
The evidence for the way that the daughter has treated her mother is based on evidence from social workers and caregivers, and the judge has taken the view that they would have no reason to lie (expressed in §24 of the published judgment as well as during this hearing).
Had I observed this case eighteen months ago, I believe I too would have subscribed to the premise that professionals would not lie to the court, but my lived experience with my late father teaches me otherwise.
Having watched this hearing, I now have some deep concerns. What if my dad’s awful treatment at the hands of the State is not an isolated case? What if such cases are prevalent, and left unchallenged in the legal system due to the system’s unpreparedness to accept that the evidence before the court may not be true?
There can be several reasons for people from state organisations such as Local Authorities, to misinform the court. There’s an obvious inherent risk for an occasional personality clash between carers and family members as a potential motive for misinterpretation or lies. There can also be financially driven motives: safeguarding allegations against family members seem to be a common theme in cases where Ps are forced from their own homes into institutional care. Local Authorities are strapped for cash and short of housing. Forcing vulnerable people (the rich and the poor alike) into care may have a very positive effect on Local Authorities’ budget. It would surely be naïve to ignore the risk of such an ‘agenda’ being a driving force in case management?
I will continue to watch this case with interest and will raise a glass to P and her family at the appropriate time on Christmas Day (though the exact timing of the six-hour window of family privacy was not specified).
If the allegations about P’s daughter had been tested to the higher standard of proof of the criminal court (given that many of the allegations against her, including coercive control, constitute crimes) I would feel more convinced that the outcome of this case so far was a just one.
Instead I have deep concerns about unchecked power and the efficacy of the system which theoretically protects vulnerable people.
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.
Kim Dodd has previously blogged for the Open Justice Court of Protection Project (“A newly addicted observer’s reflections“) under the pseudonym of “Jean Louise” as she was at the time a respondent in her dad’s CoP proceedings and subject to a Transparency Order preventing her from identifying herself as a family member of a protected party. That TO has only just been discharged as a result of her dad’s death (the order had effect “until further order of the court OR the death of P“). Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).
Promoting Open Justice in the Court of Protection 
Open justice is not simply a reporting project; it’s an examining project where contributors bring clarity by engaging with the issues before the court and the process itself amplifying the value and work of the court.
But there are pitfalls in this approach and I am not sure all have been avoided in this post. I did not observe this hearing and have no context for this case (beyond the previous post about competing representation for P) so these comments are all about the post on its own terms.
When the judge is asking Mr H about his Christmas Day it is described as “a somewhat peculiar line of questioning”, on the basis that people fit all sorts of things into their Christmas day without any issue; “Many people attend church, cook, and spend time with their family on Christmas Day – I wasn’t altogether clear why the judge seemed to imply that this would be difficult.”
The contributors seem to be taking a view that a judge is perhaps looking for unnecessary obstacles to a family spending Christmas together. What I read is a judge whose primary duty is to safeguard P. She is seeking to balance that with a family’s desire to spend Christmas day unchaperoned, but that must always be through the focus of safeguarding P.
The judge has identified that Mr H might be able to help if he can step in if things kick off such that P is at risk. In order to do understand if he can fill that role, the judge needs to know whether Mr H will be around if intervention becomes necessary. If Mr H had replied that he spent several hours during the day bell-ringing that would limit his usefulness as family referee. It is obviously true that many people attend church, cook and spend time with their family on Christmas day, but very few of those many people are being trusted by the court to safeguard the interests of a vulnerable person, very few are the lynchpin in the court allowing contact to take place on an unsupervised basis.
The judge described Mr H as a “decent, normal, human being”. This comment the contributor took to be an oblique disparagement of another party; “The implication, of course, was that DA is not.” No, it isn’t. Even within the context of the post itself it really really isn’t. That judicial comment was within the context of whether Mr H might intervene if intervention was needed. The actual implication is that he would intervene as any decent, normal, human being would do to protect a vulnerable person.
If you take a step back from this hearing it allows a different context to emerge. That of a judge who has a duty to protect P and also wants to grant the family time alone together on Christmas Day. In order to be able to do that she needs to be confident that the vulnerable person, P, will be adequately safeguarded without additional supervision. To have that confidence she needs to feel that Mr H will do something if P is at risk. To do this she needs to empower Mr H for his potential safeguarding role, and ensure that he will not succumb to the Bystander Effect of letting inappropriate things happen around us. One way to avoid that is to ensure an individual understands they have a specific responsibility not just a general moral responsibility.
A contributor found that when a submission was made that “it would be a travesty for my family not to have Christmas together” the judge was “pedantic” in pointing out that the terms of the order in place allowed for the family to spend Christmas together, just with supervision.
The legal process is pedantic. That is the point of the legal process. It is a forum of precise interpretation and understanding. A pedantic point? If you say so, but also true, and very important in this case; no one at any time sought to prevent a family spending Christmas day together. All that was at issues was the terms that happened given that a vulnerable person will be present, someone who requires safeguarding, including possibly from one of the people present, and it is society’s job, exercised through the court and the judgment of that judge to balance that need for safeguarding with Christmas Day arrangements.
Similarly we are told that the judge’s responses did not “engage, in any meaningful way, with the emotion that lay behind the submissions.”
The CoP engages in an informal process that involves everyone with an interest to help facilitate the best interests of P. But it is a court, an office of the High Court, bound by legislation, rules, a code. It is a process of law. Whether it insufficiently engages with emotion of parties is perhaps a fruitful topic for discussion but that it not what is currently constituted to do.
Mediation on the other hand is heavily focused on engaging with the emotional context, something lawyers are not always well placed to do as with the QC in a mediation workshop I attended – “remind me, what is the difference between sympathy and empathy?”.
The contributor also found it uncomfortable that DA’s repeated suggestions that P, sitting next to her should comment was not taken up by the judge. Context is key here. This was a very short (a few minutes) hearing, presumably fitted in despite a vast pre-Christmas caseload before Christmas precisely to allow this issue to be considered before Christmas Day. We are told that DA made lengthy submissions, and the Official Solicitor was there to literally be the voice of P. And the court has at other times heard extensively from P herself.
This case underlines the importance of context. As Kamala Harris said:
“You exist in the context of all in which you live and what came before you.”
I just quoted Kamala Harris. That’s a first for me. In this case the context is case specific; a hearing is a snapshot. Even if we have witnessed other hearings and read position statements we do not have the information a judge has contained in the bundle which is crucial to a complete understanding of the issues.
Context is also central in understanding what a judge is trying to achieve. A judge has shoe-horned a hearing for a few minutes into a rammed list to try and get a family what they seek for Christmas. This along with all the other wants and needs for vulnerable individuals’ cases before Christmas. She is trying to accommodate the family’s wish to spend Christmas together without supervision whilst doing her best to ensure that P is safeguarded, her primary duty. And, most importantly, she achieves this. Six hours unsupervised contact on Christmas Day with Mr H agreeing to step in if P is at risk. Job done.
Another context is the legal process itself; pedantic, unemotional, brusque. That is what it must be in exercising its role as a formalised forum for the resolution of societal dispute.
By the way, I do not know the judge involved in this case, I have never appeared before her, have never met her and had never heard of her before.
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Thank you very much for your comment, Sam. This response is in my name but Kim Dodd, who co-authored the blog, has contributed to it.
It’s always helpful to read feedback. It helps to think more about the issues and also highlights where I could have been clearer. For example, I could have made clearer that the reason I thought it was odd to question Mr H on how he would juggle multiple things was because he had already made clear to the judge that he’d be present throughout the day. I could also have clarified my point about the judge describing Mr H as a “decent normal human being”. I think it’s helpful to quote the block of text where this is mentioned:
‘The judge seemed to trust that Mr H would intervene if DA did begin to talk about these things [i.e. forbidden topics relating to care homes or Swiss euthanasia clinics] describing him as a “decent normal human being”. The implication, of course, was that DA is not. When there was a reference to DA not accepting some of the judge’s findings (DA disputed this), the judge said, “that’s her personality. That’s the type of person she is”.’
So, the implication that DA is not a “decent normal human being” arises from the implicit contrast between someone (DA) who talks about upsetting topics because “that’s the type of person she is” and someone who would intervene to prevent this. In context of the court interaction, it certainly came across to me (and I suspect to others) as reflecting negatively on DA. To be perfectly honest, the judge doesn’t seem to like DA very much. This is an impression based on her general demeanour toward her, and hard to evidence – but I have seen this judge and others behave with far more warmth and cordiality (and basic respect) towards other family members in other hearings (and admired them for it).
We appreciate that the judge had (as you say) squeezed in this hearing at short notice to make a decision before Xmas, but I’m not sure how we gave the impression that (in your words “This was a very short (a few minutes) hearing”. The hearing actually lasted an hour and 10 minutes. We did indicate this: Kim’s section begins: “At the end of this eighty-minute hearing…”. In this context, there was no need for the judge to be brusque. And I believe there would have been time to allow P to speak to the judge as she wished. Yes, of course the OS was there too, but I’m afraid that the idea that the OS is (your words) “literally … the voice of P” is not a point of view I can accept. I have seen many hearings where the voice of P and the voice of the OS are at odds or even in conflict – and this was of course a key issue in an earlier hearing in this case when P asserted her own litigation capacity and sought (unsuccessfully) to instruct her own legal team. The distinction between instructing your own solicitor and having your solicitor instructed for you in your “best interests” by someone else is a distinction of fundamental legal importance (and arguably counter to Art 12 of the UN CRPD).
I agree with you that context is very important (I’ve also never quoted Kamala Harris!) However, I think that the context is much wider than you acknowledge. There is indeed this hearing. Then there’s the wider picture of the individual case, which legal teams and judges have in a bundle but that the public don’t know about. Contributing to this is also the COP rules and procedures, and the broader legislative picture.
There’s also the context that families and observers bring to a hearing. For example, I was a paid carer and am now a PhD student in political theory, which I think can have a lot to say about the concept of mental capacity, and the Court of Protection as an institution. Kim’s dad was a “P” in the Court of Protection, and so she brings a unique perspective to the operation of the court from a family perspective.
All in all, that means there are multiple contexts that contribute to the tapestry of understanding and reactions to a hearing.
Taken in the round, this means that the “pedantic, unemotional, brusque” nature of the legal process can be particularly jarring to those of us who are not ‘part of’ that world. As you say, this can be a fruitful area for discussion. In my view, it doesn’t need to be this way. Interestingly, I recently saw a news segment about the use of AI in courtrooms. The expert being interviewed expressed the view that AI could never replace lawyers and judges because it’s their job to engage with human emotion. I have often seen lawyers and judges engage brilliantly with lay people in the Court of Protection – with compassion and care. This was not so in this case.
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I was an observer at this hearing and I’ve read Sam Green’s comment about the blog. He raises some very interesting points that got me thinking about the nature of the Court of Protection, its place in the justice system and how it is viewed. I want to comment on three specific points that Sam made and how his perspective differs to or aligns with mine, as a member of the public who engages with the CoP but who is not a legal professional.
Pedantry in court
First, Sam writes “The legal process is pedantic. That is the point of the legal process. It is a forum of precise interpretation and understanding” (my emphasis). I agree, it is exactly that. And that is how all the legal representatives are trained to work: judges, counsel, instructing solicitors. They spend years getting to know the precise interpretation and understanding needed for a Court of Protection case. But that isn’t the same for members of the public who find themselves involved with the Court of Protection because a family member or friend has become a protected party (P). Sometimes that member of the public can have legal representation, who formally interprets and understands for them. But often they don’t, and they are involved as a Litigant in Person representing themselves or simply joined as a party without legal representation. In both of these latter cases, the person does not have the advantages of a legal background.
This is a problem recognised by the justice system. The Equal Treatment Bench Book outlines a judge’s responsibility to ensure equal treatment of all participants in a hearing. My understanding is that this includes helping participants interpret and understand what is being said in a Court of Protection hearing, to the extent that is possible. I’ve seen this in action in hearings before. One example was during a hearing I observed before Senior Judge Hilder at First Avenue House (COP 20002786 King’s College Hospital NHS Foundation Trust and MB 12pm 11th October 2024). P was not represented by the Official Solicitor and the only people present in court (apart from me) were the judge, counsel for the Trust and P’s parents. P needed urgent dental care and Senior Judge Hilder was going through in detail the proposed care plan to enable this medical intervention. The care plan as it had been drafted stated “P’s parents have given consent to treatment”. The judge stated …”that troubles me because P is an adult…… “. She asked the parents: “do you understand?” (that they couldn’t give consent). P’s father said that he was the “Representative for DOLS”, which to me indicated that he thought he could “give consent”. The judge took the time, using plain language, to explain to the parents that they could be consulted, but that they couldn’t make the decision (and why). She suggested that the wording be changed to “P’s parents agree to dental treatment” rather than “have given consent to”, and the new wording was inserted in the care plan.
I don’t know whether the parents fully grasped the implications of the wording change, and maybe to them it did seem pedantic, but of course it was a crucial word change. It also occurred to me that the parents had not been responsible for drafting the care plan, so presumably somebody else had inserted the words “consent to”, not realizing the legal consequences of using those words. The judge, in a patient and measured way, helped the parents understand. The tone was completely different (in my opinion) to the exchange between the judge and the family members about “being together” for Christmas. My point is that although it is necessary and normal that the legal process is pedantic, how that pedantry is managed and negotiated can be very different depending on the case and the people involved.
Sam also writes that the “The CoP engages in an informal process that involves everyone with an interest to help facilitate the best interests of P.” I wonder if Sam means that it is an “inquisitorial” rather than an “adversarial” Court? From my experience of observing hearings, I wouldn’t describe it as “informal”. And I doubt whether any family member would. Maybe it is viewed as informal from a CoP practitioner or professional perspective? Having attended the CoPPA National Conference in Manchester in November 2024, I did get the sense that it is a small world within the justice system, and that it seems that many people know each other. The environment of the conference was certainly friendly, open and supportive, with the focus very much on P and the legal process. But it did strike me that there were no family members there openly as delegates and no family speakers (one had been planned but due to illness they did not attend). I should stress that family members were not excluded, anybody could have paid the fee to attend. I went as a PhD student. It was a very welcoming environment but it was very much a CoP ‘professional’ event; an event for those “inside” the CoP. CoPPA does after all stand for Court of Protection Practitioners Association. It is positive that the ‘inside’ community is so supportive. But I wonder if that means the CoP process is viewed from a particular insider perspective, comparing the CoP to other parts of the justice system, without recognising that for other people ‘outside’ of that world, the perspective can be very different. Family members and CoP observers are very much part of the CoP process too but in very different ways.
Emotions in court
The second part of Sam’s point about the COP engaging in an “informal process” is: “But it is a court, an office of the High Court, bound by legislation, rules, a code. It is a process of law. Whether it insufficiently engages with emotion of parties is perhaps a fruitful topic for discussion but that it not what is currently constituted to do”. This is an interesting point concerning the intersection of “informal”, “process”, “law” and “emotion”.
Hobbes (2009)[1] wrote “A good judge is able to divest himself of all fear, anger, hatred, love and compassion’. But there is a lot of recent research about emotion in court and it is an area I hope to explore as part of my PhD about family members experience of the Court of Protection.
I have seen what I think Sam refers to as the “informal“ side of a CoP hearing, and also emotional engagement with family members. One vivid example was COP 20003709 before Mr Justice Hayden (10.30am, 31st October 2024 RCJ). It was a highly charged hearing, with ultimately P’s life at stake. I observed P’s mum giving evidence from the witness stand, so that the court could understand more about P. The first questions Mr Justice Hayden asked P’s mum were all about family life and P growing up. A little later, he stated that these questions were to (in his words) “put her at ease”. He was sensitively engaging with the emotional situation.
Another example was COP 20004077 before Mrs Justice Theis, (2pm, 7th October 2024, RCJ). This was an urgent hearing as P was due to have a serious medical intervention the following day. It was obvious to me as an observer, and everybody else in court, that the family, who supported the clinicians’ plans, were very anxious about the hearing and what the judge’s decision would be. The judge dealt with this in a very sensitive way throughout the hearing. She paid a lot of attention to ensuring that family members could play an active role in the hearing. They were attending remotely, with lots of technical difficulties, and the judge made every effort to ensure that they could hear and follow what was happening during the hearing, aiming to reassure the family about the process and, in my opinion, trying to put them at ease. At the start of her oral judgment, the judge commended the fact that P’s three family members “have engaged with this hearing in clearly very difficult circumstances and deserve the admiration of the court […] and two of them by phone so they could not see the court …it has been enormously helpful to the court to have their participation …. …the court is extremely grateful for the way they have joined and conducted themselves”.
There was expressed palpable relief for the family when the judge agreed the plan for P’s treatment. P’s brother’s phone link had failed just as the judge was giving her judgment at the end of the nearly four-hour hearing. As he came back online, his sister said “We’ve got it (brother’s name)!” (i.e. the decision they wanted). The judge wished P and the family well. There had been tears at various points as the family spoke throughout the hearing and it felt very emotional, even for me as an observer with no role in proceedings.
I was struck by how the judge dealt with the language used by the family in this hearing. At one point P’s brother described P, who he cared for full-time and clearly loved deeply, as a “51-year-old baby”. The judge did not make any comment on this term. But I could imagine another hearing, under different circumstances, with a different family member, where a judge would have (pedantically) “corrected” that view and pointed out to a family member that P was a vulnerable adult and not a ‘baby’. Not doing so here felt very appropriate. There were more important issues at stake.
These two examples show a judge engaging positively with the emotions of family members. So, emotions are engaged in the CoP, even within the structures of “an office of the High Court.” This is what many people say makes the CoP different within the justice system. But if it happens positively, it can also happen negatively and I believe that should also be acknowledged.
Sam writes: “Another context is the legal process itself; pedantic, unemotional, brusque. That is what it must be in exercising its role as a formalised forum for the resolution of societal dispute.”
Drawing on the examples above, and in many other CoP hearings that I have observed, I don’t recognise the process as unemotional and brusque. Maybe Sam means that the legal professionals find the process unemotional and brusque; maybe that is part of their training. I have observed hearings that have impacted me emotionally – in fact most do to some extent or another. Although on reflection, it is the hearings with family members in court that have the most emotional impact on me, maybe because it makes the situation that much more personal, rather than a more distant legal process. I have observed hearings where the legal professionals have shown support for families in court through their words and actions during a hearing, and this shows the court in an extremely positive light. I have also observed hearings which have made me feel uncomfortable. And the hearing I observed which Daniel Clarke has blogged about was one of those.
Much of this boils down to a matter of perspective and one’s role with the Court of Protection. Maybe it’s that the perspective of somebody who is not within the professional sphere of the CoP, an outsider, somebody who views things very differently to a person whose job is applying the law within the Court of Protection. And I believe that those different perspectives should be acknowledged.
[1] Hobbes, T. (2009). Leviathan (White, E., &
Widger, D., Trans.). Online: Project
Gutenberg. (Original work published in
1651). http://www.gutenberg.org/3/2/0/3207/
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