By Celia Kitzinger, 23rd November 2021
Walsall County Court Room 2 is a modern covid-safe space. There are three rows of tables with benches facing the front. Strips of yellow and black tape outline each available sitting space, with crosses marked on alternate spaces to prohibit their use. The 20 or so wall-mounted cantilever folding chairs around the edge of the room (normally for observers?) are taped up.
There’s plenty of time to take in the scene because the hearing is starting about half an hour late. We were told that the interpreter had only just arrived at the building, about 15 mins after the listed start time.
It’s case number COP 13698212 before His Honour Judge Lopez on 25th October 2021. It’s hybrid (I’m attending remotely via the Cloud Video Platform) and it was originally intended to be a fact-finding and final orders hearing, listed for four days.
Instead, the hearing comes to an abrupt and unhappy end with an adjournment on the second day.
Background
The case concerns an eighteen-year-old (P) with profound learning disability, cerebral palsy, visual impairment and scoliosis.
She lacks capacity to conduct litigation, or to make decisions about where she lives, her care and support, and her contact with others – and no party seeks to challenge that. Final declarations to this effect were made on 14th June 2021 and are not contested.
On 16th December 2020 (mid-pandemic), the local authority had removed her from the family home (she’s always lived with her family) and placed her in residential care, contrary to her family’s wishes. She’s remained there ever since – and significant restrictions were placed upon contact between mother and daughter, some relating to lockdown restrictions during this period.
The local authority (represented by Lee Parkhill, Cornerstone Barristers, instructed by Alexander Gidden) takes the position is that it is in P’s best interests to remain in her current placement.
The local authority has a whole litany of concerns about P’s welfare at home, including: exposure to physical aggression (from the mother’s partner towards the mother), missed medical and dental appointments, dental decay, the mother (Ms X) not providing P with prescribed medications (including baclofen for muscle spasms and nutrient supplements), not following advice about the need for P to wear her back brace, allegations that she was putting P at risk of choking because she won’t use a blender to puree food, and in other ways “wilfully ignoring” the advice of professionals, and behaving “aggressively” towards care staff. The local authority also says that Ms X’s (privately rented) property is “wholly inappropriate” for a wheelchair user like P.
Ms X (represented by Jake Rylatt of No. 5 Chambers, instructed by Kirstine McFarlane) says that P was removed from her care unlawfully, without notification or discussion, and she wants her daughter home again immediately. She disputes the allegations against her in relation to the adequacy of the care she’s provided for her daughter at home. She denies ever having missed appointments with speech and language therapists, although she thinks some appointment letters may have been sent to her previous address. She has not missed appointments for P’s dental treatment – rather, appointments have been cancelled by the dentistry services. She didn’t give P the food supplements because when she picked them up, they were out-of-date and had worms in them. Baclofen made P sweat profusely and she was told to reduce the medication. She has raised safeguarding concerns (a counter-allegation) about the care of her daughter in her current placement – including bruising and scratching on P, staff failure to wash and clean P properly, and their failure (like hers) to get dentistry treatment for P. She is (now) willing to accept a package of external support at home if the court considers it necessary.
Initially the plan was for preliminary “fact-finding” as part of the final hearing, to determine whether or not the claims made about Ms X’s failings as a carer are true.
“Fact-finding hearings are most commonly directed by the court (either separately or as part of the final hearing) in what might be termed ‘safeguarding cases’ brought by local authorities. In such cases, the local authority is usually seeking adverse findings against an individual or individuals to support its contention that (for instance) their contact with P should be limited, or that P should live somewhere other than in the family home.” (“Fact-finding hearings in the Court of Protection”; see also Sophy Miles on “When to Find Facts” in the Court of Protection Handbook).
P’s best interests are represented (via the Official Solicitor) by Pravin Fernando of Serjeants’ Inn Chambers, instructed by Kirstie Lennox. The Official Solicitor has some concerns about the mother’s ability to engage with and provide care for P in a safe and suitable way, but will provide views on where it is in P’s best interests to live after hearing the oral evidence.
Pre-trial review: 14th June 2021
Prior to the pre-trial review in June 2021, the case had been the subject of initial case management directions from District Judge England in January 2021. He made interim declarations that P lacks capacity and that it’s in her best interests to remain in the care home; he authorised her deprivation of liberty on an interim basis, invited the Official Solicitor to act as litigation friend for P, and joined her mother to the proceedings.
Then there was a directions hearing on 9th March 2021 before District Judge Riley (which I also didn’t observe). The order from that hearing recited that there was now a standard authorisation for P’s deprivation of liberty at the care home to which to local authority had removed her. The court proceedings were reconstituted pursuant to s21A MCA 2005. (This means that P and her Relevant Person’s Representative – I don’t know if this is her mother? – are entitled to non-means tested legal aid.) The order also included a recital that face-to-face contact with family should commence as consistent with the (then) most recent government guidance. Orders were made for the provision of s.49 reports from relevant health professionals (e.g., P’s dentist, dietician, physiotherapist, learning disability nurse). A three-day final hearing was listed to begin on 7th July 2021, in advance of which there would be a pre-trial review.
The pre-trial review on 14th June 2021 was the first hearing I observed in this case. It was before Her Honour Judge Sally Hickman, sitting in Wolverhampton. Apparently, it was supposed to have been heard by His Honour Judge Paul Lopez, but he had been unable to do so, “and I was catapulted in, just for this hearing”[1] (said Hickman J).
I found it distressing to observe because P’s mother, Ms X, was crying throughout the hearing. As the lawyers talked about s.49 orders, details of care packages, the need for transition and conveyance plans if P is returned to her mother, and the need for contact arrangements to be clarified if she is not, Ms X – observing via her mobile phone, with her interpreter on another line – simply wept.
Her microphone was (mostly) turned off, but there were times when her face was streaming with tears and she was mopping her eyes with tissues – and nobody acknowledged this until right at the end of the hearing when the judge asked counsel to “thank her for contributing and keeping her composure: I could see how distressed she was at times”.
The only sense in which she had “kept her composure” was that she had not interrupted proceedings after an initial attempt, at the beginning, to get her voice heard (via her interpreter).
While Lee Parkhill (as counsel for the applicant local authority) was still laying out the introductory summary of the case, the following intervention took place:
Interpreter: Ms X would like to know if P can live in her home with her because
that’s where she’s been caring for her for the last 18 years.
Judge: Please explain that’s what the hearing will decide in July.
Ms X: (says something, tearfully, in her native language)
Interpreter: Ms X is missing her daughter.
That was the extent of her contribution.
Counsel for the applicant then continued to outline the order he was inviting the judge to make, which included a recital that a new standard authorisation had been granted in respect of P’s deprivation of liberty, a final declaration concerning P’s lack of capacity for the relevant decisions, the evidence required for the next hearing, and arrangements for in-person attendance for P’s mother and her interpreter and counsel, with remote attendance for others (since the court is not large enough to hold all parties).
Ms X continued to weep throughout the statement from her own counsel, and that of the Official Solicitor. It felt a bit brutal to me – and not representative of the level of humanity I usually see in the Court of Protection.
Still, it was clear that the lawyers were all doing their best to ensure that the hearing in July would be “effective” and that everything would be in place so that decisions about P could be made when the court reconvened in just over three-weeks’ time.
That didn’t happen. Permission to adjourn was granted the day before the final hearing was due to start, because one of the advocates was ill with Covid-19.
It was a further 3-months (so now more than 9 months since Ms X’s daughter had been taken from her) before the final hearing took place. And that final hearing has now been adjourned, part-heard until February 2022.
The final hearing: 25th October 2021
My expectation, based on my experience of the pre-trial hearing, was that the final hearing would begin with ‘fact finding’ to determine whether or not the allegations against Ms X could be sustained. I’d understood that the court would then use what had been determined to be the ‘facts’ of the case in making a decision about where it is in P’s best interests to live and receive care. If her mother was as poor at caring for P as the local authority claimed, then it seemed likely that P would stay in residential accommodation (notwithstanding the question mark hanging over the lawfulness of taking her there in the first place). If Ms X could ‘clear her name’ and show that she was acting reasonably, and that the social worker and others had misunderstood or misrepresented her actions, then she would stand a chance of having her daughter returned to her care.
As it turned out, that’s not at all what happened – partly, I think, because of developments since the pre-trial hearing which was now four months ago.
Instead, the local authority argued against any ‘fact-finding’ exercise on the grounds that, irrespective of the facts relating to Ms X’s behaviour in relation to her daughter, there was an over-riding factor on the basis of which a decision could be made about where P should live – and that was the unsuitability of the family home.
Counsel for the Official Solicitor, Pravin Fernando, also took the view that the completely unsuitable nature of Ms X’s home was an issue of “magnetic importance” in this case. It’s not realistic, he said, to imagine that P can live safely at home, so “the utility in proceeding through a fact-finding exercise … is questionable where in practical terms P can only realistically stay where she is.”
I’ll now describe how these arguments were advanced and challenged, and how the judge addressed them – and, crucially, the response from counsel for Ms X, P’s mother, Jake Rylatt – as the arguments emerged in the course of the hearing.
I’ll also explain what happened on the second day of the hearing to derail the entire process.
DAY ONE (25th October 2021)
Starting the hearing
I watched the parties enter and take up their assigned seats. Everyone was masked.
Ms X (P’s mother) and her interpreter were seated together in the back row of the court: she seemed more composed than at the pre-trial hearing.
Counsel for Ms X, Jake Rylatt, and his instructing solicitor were seated in front of them.
“This is a surreal experience” said Jake Rylatt (referring, I assume, to the experience of a hybrid hearing). He asked if he could take off his mask (yes) and then said hello to the other members of counsel visible on screen.
From an observer’s perspective (and I assume also for the lawyers attending remotely), this was an excellent audio-visual experience, with the camera on the right people at the right time (I think someone was repeatedly re-directing it from judge to counsel and back to achieve this effect?). There was high-quality sound, and no connectivity problems. Well done Walsall County Court!
At 11.06 am, the judge entered at front of court and was seated on his ‘bench’ – a bright green office chair.
After being introduced to the legal teams, he immediately started listing documents that were missing from his bundle, or were “outdated”. He hadn’t received Ms X’s statement, served a few days earlier. Nor the updated Occupational Therapy report. Nor some supplementary information from the dietician. There’d been “a plethora of emails this morning about various documents, but then I got recall statements so I didn’t open them”.
Counsel for the applicant local authority said that he wanted to address the judge on the preliminary fact-finding component of the hearing. There’s a problem, he said, because “some of the local authority witnesses are now no longer in the employment of the local authority”: two have left; another is on long-term sick leave. The local authority no longer proposes to rely on the evidence of one witness, and is also no longer pursuing the allegation that Ms X did not follow advice regarding the importance of P wearing a back brace, “so the absence of that witness to be cross-examined won’t present any difficulties”.
The judge said that it was necessary, first of all, “to decide whether there needs to be a fact-finding hearing at all. If people who’ve left the local authority are needed to give evidence, we can find out where they are and get them in. It will cause a delay, but it will mean that P’s Article 6 rights [right to a fair trial] are maintained. If it’s necessary to make findings of fact, we’ll get on and do that. If not, we’ll get on with deciding where this young woman should live”.
Before proceeding, though, the judge adjourned the case for 30 minutes (which actually extended to nearly 45 minutes) to give himself time to read the missing documents, and to give Ms X and her counsel the time to have “a proper chat”, given that this hadn’t been possible previously in person and with an interpreter present.
On reconvening at 12.40, we turned to submissions proper, with a key focus on the question of whether or not a fact-finding exercise was needed.
Counsel for the applicant local authority: Lee Parkhill
Lee Parkhill, counsel for the applicant local authority, began by saying that there was now agreement between the parties (as there had not been at the pre-trial hearing I’d observed) that there was no lawful basis for removing P from her mother’s care in December 2020.
The local authority’s action in removing P from her mother’s care was, he said, in breach of P’s Article 8 rights, because it interfered with her private and family life, and in breach of P’s Article 5 rights by unlawfully depriving her of her liberty.
There remained a difference between the parties as to how long this unlawful breach of P’s rights continued, with the local authority claiming it ended on 18th December 2020 when this application was lodged, and others saying it continued until 13th January 2021 when a standard authorisation was issued.
In any case, it was obvious that the now-accepted fact that P had been unlawfully removed from her mother did not mean that she would be returned forthwith.
Counsel then said that there was now no need for a preliminary fact-finding exercise. There seemed to be three (inter-related) strands of argument in support of this claim.
First, a ‘fact-finding’ exercise was no longer needed in relation to some of the disputed ‘facts’ alleged against Ms X, because they were no longer being submitted as evidence by the local authority. In some cases, this is because the social worker who had enquired into them had found insufficient evidence to sustain them (e.g., the physical abuse allegations). In other cases, it’s because the local authority – despite apparently still holding them as ‘facts’ – is not able to argue for them as ‘facts’ in court because members of staff are not available (due to having left the local authority or being on leave) to give evidence and be cross-examined.
Second, the applicant questioned whether a time-consuming fact-finding hearing was necessary or proportionate, relying on the “leading authority”, Re AG [2015] EWCOP 78. This concerns an unsuccessful appeal, by P’s mother (obviously this is a different P and a different mother), against what she said was the court’s erroneous failure to conduct a fact-finding hearing into the matters that triggered the proceedings. The background was that P lived at home, and allegations had been made that P had been abused physically and emotionally by her mother – following which the court made orders that it was in P’s best interests to move into, and then to remain in, a supported living placement. Sir James Munby dismissed the appeal, quoting another judge in another case, saying:
“… it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in [P’s] best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and the long-term care of the mentally incapable adult.” (Wall, J para.18 in Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam)).
The gist of the local authority’s argument, drawing on Re AG, was that, whether or not the allegations against Ms X are true, and irrespective of the fact that P was unlawfully removed from Ms X’s care in the first place, what matters now is, pragmatically, to determine where it is in P’s best interests to live and receive care. A lengthy and costly fact-finding exercise concerning historic events is disproportionate to that goal.
In fact – and this is the third part of the argument advanced by the local authority – it’s only necessary to look at the evidence from the Occupational Therapist to make a determination as to P’s best interests. That report reveals that Ms X’s home is so wholly unsuitable for P that it alone can determine the issue. The property is small. A ground floor living room has been converted to a bedroom and there is a downstairs bathroom with a small bath. But access to this bathroom is via a narrow galley kitchen (53cm wide). Before P was moved into residential care, family members were carrying P through the galley kitchen (at risk of scalding if hot liquids or steaming pans were on the stove) and lifting her in and out of the bath. There are no hoists. There is an 11inch threshold at the front of the property with no ramp access. P is lifted in her wheelchair over the threshold, with risks of falls.
As the judge pointed out, “there are many cases where properties aren’t suitable, but the problem here is that this is privately rented and the landlord won’t have adjustments put in place. He, or she, just refuses to carry out, or to allow to be carried out, adaptations that could otherwise be done”.
Counsel for the local authority confirmed that this was the case. The landlord will not grant permission to install a lift, hoists, or a level access shower
Judge: Does the court have any power to compel him?
Parkhill: No.
Judge: Does the mother as tenant have power to compel him?
Parkhill: No.
Judge: And while that might seem completely unreasonable, what can I do?
Parkhill: There is nothing the court can do.
Ms X had acknowledged in her statement (said Lee Parkhill) that the situation of her housing isn’t likely to change in the foreseeable future.
“She has made efforts to find somewhere more suitable, but without success. This is not to criticise her – there is a limited supply of social housing and suitably adapted accommodation. So, the key issue in this case is the relative suitability of two options. [1] A care home fully able to cater for her physical and care needs, versus [2] A property that Occupational Therapists say is entirely unsuitable and has risks. And we say on that basis that the court can conclude that it is in P’s best interests to live in the care home. Of course, it’s important for P’s relationship with her family to be maintained and there are proposals for that. We submit that the evidence from Occupational Therapy is of such weight as to allow the court to determine the issue without reference to findings of fact that would be disproportionate in the circumstances.” (Counsel for the local authority)
Counsel for P’s Mother, Ms X: Jake Rylatt
There were some Heath-Robinson moments as Jake Rylatt, the only barrister physically present in the courtroom, attempted to create a make-shift lectern or reading stand to support his laptop, so that he’d be able to read from his screen while standing to address the judge. After a failed attempt to balance his laptop on an upright ring-binder, the judge suggested a cardboard box (that worked!) and he began his submission.
He said he was “grateful for the concession regarding the removal of P from her family home” (i.e. the local authority had now conceded that what they’d done was unlawful) but wanted to “seek clarity” on one matter. Did the local authority also accept that “my client’s Article 8 rights were also engaged and violated in removing her daughter from her care?” “Yes,” said Lee Parkhill (who seemed to think he’d already said that, though I don’t think he had). The judge said: “On my reading of the papers, I agree with you. It wasn’t lawful, full stop.”
In his (written) position statement, counsel for P’s mother had raised concerns about the adequacy of a fact-finding hearing given that only one of the social workers was available to give oral evidence – and two of those who had “provided the bulk of [the local authority’s] narrative evidence” were not available for cross-examination. Although a supervisory social worker was able to comment on the analysis of her colleagues, she could not report on the basis of any first-hand experience.
Although counsel for the local authority and for the Official Solicitor were now saying that no fact-finding exercise was necessary, the judge was obviously still considering this question and asked counsel for P’s mother whether he wanted to seek an adjournment to enable the relevant witnesses to be called before the court.
“The reason why I ask is because there were three people to give primary evidence as part of the fact-finding exercise. Two have left the local authority and one is ill and returning on a gradual basis. But those who’ve left the local authority haven’t fallen off the edge of the earth. They’re probably still out there somewhere, probably still working in social care, and we could find them. And then you have the opportunity to question the person who said it, who did it, rather than a person in a supervisory role.” (Judge)
Jake Rylatt said that, given the length of time that his client had been deprived of her daughter, he wanted to proceed without waiting for further witnesses to be found. He pointed out that some of the allegations against his client had now been dropped (e.g. Ms X’s alleged failure to use the spinal brace) or could not be substantiated by the local authority (e.g. the claims of abuse or aggression). Although his client had been accused of not providing her daughter with dental appointments, it was clear that the local authority has also had difficulties “in obtaining services from dental experts”.
The judge said:
“There are allegations made about your client and the suitability of the care she provided for her daughter. If the local authority wants me to take those into account, then they have to prove them. Your client says they’re not true or it didn’t happen like that. If these are not found to be facts, then they cannot be part of the case.”
The judge quoted from the decision in Re AG:
“I bear in mind, however, that those allegations … are strongly denied by [P’s mother] and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings I do not hold them in the background as it were by way of a suspicion lurking over [P’s mother].”
Counsel for Ms X accepted this position, saying, “So the local authority needs to decide whether to pursue these allegations or not – and, if not, then tear up the Scott Schedule and proceed without this sword of Damocles hanging over my client”.
He then addressed the question as to whether the unsuitability of the family home is such as to be determinative of the question of P’s best interests, which is what both the local authority and the Official Solicitor claim. He made three key points.
- The family has already found ways of addressing some of the concerns raised by the occupational therapist via various “practical work-arounds”. For example, they no longer carry P through the kitchen to the bathroom, but wash her on the settee, thereby obviating concerns about scalding risks in the kitchen and lifting problems in the bathroom.
- Ms X accepts that it’s not the most suitable property for her daughter, but says that the local authority and Official Solicitor are “striving for perfection in an imperfect world”. Counsel cited Peter Jackson J in A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48, who said that “the search for the ideal solution” can lead to “decent but imperfect outcomes being rejected”. “People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.” (para. 14, emphasis added)
- The suitability of the family home is not a factor of “magnetic importance” (in the sense in which Munby J used it in ITW v Z and M [2009] EWHC 2525 (Fam)) but just one issue to be factored in to the overall best interests analysis the court has to conduct. It would be an inappropriate exercise of the court’s case management powers to, in effect, summarily dispose of the case on the basis of but one factor in the best interests analysis.
Then the hearing adjourned for lunch.
I was back in court at the predetermined time, but the judge was not yet present and counsel were catching up with each other on their current positions and planning what to say to the judge. The big news relayed by counsel for the local authority is “we have found [the occupational therapist] – she’s left us but we’ve tracked her down. She needs to have put to her the work-arounds Ms X is proposing.” There was also some discussion about the date on which the unlawful deprivation of P’s liberty could be said to have lapsed, with counsel reading aloud from “the Blue Book” and Lee Parkhill pointing out that 4B MCA permits depriving P of her liberty pending a decision from the court, if the deprivation of liberty is in order to carry out a “vital act” (“A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition”, 4B MCA). But (said Lee Parkhill) “it only arises once the application has been made, so it can’t assist us before the 18th, but does afterwards”. (When I sent some tweets about this exchange, to check my understanding of it, barrister Victoria Butler Cole tweeted back, “4B is often the last refuge of the desperate” (quoted with permission)).
When the judge appeared fifteen minutes later, Lee Parkhill reported the availability of the occupational therapist to the judge, who offered to issue a witness summons “if it would assist” – but was assured this wasn’t necessary.
Lee Parkhill also made clear that the position of the local authority remained that the evidence from occupational therapy as to the entirely unsuitable nature of the family home was sufficient in and of itself to make a best interests decision, and hence there was no need to engage in a fact-finding exercise about the allegations against Ms X. “However, if the court is of the view that the matter cannot be resolved solely by reference to the occupational therapy evidence, then we would want to proceed to findings of fact”. (I took this to mean that if the court made the decision that it was in P’s best interests to return home based on the evidence before the court from the occupational therapist, that then the local authority would resuscitate the allegations against Ms X to try to prevent P’s return home.)
The judge summarised his understanding of the local authority’s position (but made clear this was not necessarily his own position):
“I think your case is this. We don’t need to look at what has been alleged historically because we can take one look at the evidence from the occupational therapists and that’s it! The evidence is such that this woman cannot live with her family.” (Judge)
Counsel for P (via the Official Solicitor): Pravin Fernando
The Official Solicitor’s position (on behalf of P’s best interests) was that it would be appropriate to “consider the significance of the evidence from occupational therapy before we go on to consider it as part of a bigger best interests trail.
“What the local authority is saying – and the Official Solicitor’s position – is that the occupational therapy evidence is of such significance that in no conceivable way could you determine that it’s in P’s best interests to go home. That inevitably requires some evidence from the occupational therapist before we embark on anything further.” (Counsel for P)
He then read out parts of the three occupational therapy reports, emphasising the words “wholly inappropriate”, the term used as a description of the property – though there was some doubt about whether the first of the three reports related to the current property or a previous property (“Ms X’s evidence is that she moved to her current address on 11th February 2021, but she’s accepted that she meant 2020”).
The recommended adaptations include ramps, conversion of the bathroom into a wet room, installation of a lift, hoists and more. There is some concern that the layout of the house (if it is the current and not the previous house) “would not allow for appropriate adaptations even if permission were obtained”.
“The difficulty with Mr Rylatt’s submission is that it’s not an aspect of the home that’s unsuitable, it’s the entirety of the property. It’s unfair to suggest that anyone is ‘striving for perfection’. You are being invited to place P in a home environment which is ‘wholly inappropriate’ and will place her at risk of harm. These factors are of such significance that I don’t think there’s anything in the mix that could be said to countenance that.” (Counsel for P)
Counsel accepted that there might be “more nuanced” situations where less-than-perfect accommodation might be sanctioned (for example because of the significance of family life), “but here we have a property that’s ‘wholly inappropriate’ from the very moment of access all the way through. … So there are no circumstances [in which] it would be appropriate to put P back into that situation, knowing the risks that we do now know. I can’t conceive of that situation.” (Counsel for P)
The judge commented: “You may be right. I might hear evidence from the occupational therapists, and Mr Rylatt will examine them with his usual skill, and he might get absolutely nowhere…. Mr Rylatt may fail miserably. But he wants the opportunity to put whatever he wants to say. He’s saying it’s not perfection, but it’s good enough, and you’re saying it’s nowhere near perfection – it’s wholly inadequate.”
“The evidence is so compelling,” said counsel for the local authority, “that it doesn’t really matter what you hear. Unless Mr Rylatt turns the occupational therapy evidence on its head and says that black is white and green is purple.”
There was an agreement between the parties that (as Lee Parkhill put it) “it would seem sensible to hear from the occupational therapist first. It may well be that after the occupational therapist’s evidence, the court considers that it can reach a view”.
And so, it was agreed that the occupational therapist they’d “tracked down” over lunch would be on the witness stand the following day.
The judge said he would be available to the parties if they needed him before tomorrow’s hearing: “Well-being doesn’t apply in the Lopez household, so I will be at my desk late into the evening. Contact me if you need me, but not after 2.00am.”
Just before the judge rose, Jake Rylatt asked, on behalf of his client, whether her partner could also be allowed into court. Oddly, since I was in court as a public observer (meaning, I believe, that there would need to be special reasons to exclude other members of the public), this wasn’t immediately granted, and the judge indicated that an application would need to be made.
DAY TWO (26th October 2021)
Getting started
It didn’t seem to have been at the forefront of anyone’s mind that, since I had been admitted as an observer and had watched the whole of the previous day, the hearing was obviously being held in public and not in private.
This issue now came to the fore because I had tweeted about the case, and suggested that occupational therapists might want to watch today’s hearing, since one of their number was giving evidence. Two occupational therapists had asked to observe the hearing – and so too had Ms X’s partner.
And so on the second day of the hearing it came to light that the Remote Hearings Order (declaring that the hearing is private) had not been displaced by the judge’s re-application of Practice Direction 4C, and the issuing of a transparency order. But as the lawyers agreed, “nobody wants to say that this hearing is private – especially as Professor Kitzinger was here all of yesterday”. Well, quite so. And I’d also already observed the pre-trial review, for which a transparency order should also have been prepared (and was not).
I don’t mean to single out the two judges or these particular barristers for criticism here. I only ever receive transparency orders for about half of the hearings I observe. This situation is so common that I have largely stopped commenting on it, and I no longer frantically email clerks and lawyers asking for the transparency order. I believe that it is the responsibility of the court to serve their injunctions on me, and not my job to pursue them if they fail to do so.
In any case, a ‘standard’ transparency order was hastily agreed and explained (nothing that risks identifying P, or her family, where they live etc may be reported) so that the two occupational therapists who wanted to observe could be admitted.
On enquiry from Jake Rylatt about admitting his client’s partner to the (physical) courtroom, the judge said “it follows as night follows day that now I’ve made the hearing public, he can enter the court”. Court staff rearranged the socially-distanced seating so that the partner could sit next to Ms X, on the grounds that they “live in the same household” – and there was some joke I didn’t quite hear in its entirely about sitting “in the naughty corner”.
We were told the transparency order would be emailed to us. It wasn’t – and I still don’t have it.
There was then a lot of faffing while staff tried to admit the witness to the hearing. She says she’s in the lobby but nobody’s admitting her. Staff say there’s nobody in the lobby. (“Teams is better, I promise you”, said the judge.). There’s a discussion about asking the witness to come into the physical courtroom (but nobody is sure where she is, or how long that will take) or about closing down CVP and transferring the hearing to Teams. We all get sent a Teams link. “Still no joy” says Lee Parkhill, as the witness tells him she’s getting a “sorry we can’t connect you” message. And then she’s in!
We start the hearing proper at 11.38am – and I’m protective enough of P and her family to send the other two observers a quick note summarising what I assume the transparency order says about what they can and cannot say publicly.
Witness evidence – occupational therapist
The occupational therapist who’s been parachuted in at short notice is poised and confident. She affirms that she’ll tell the truth and nothing but the truth and ‘adopts’ the report she wrote back in June 2021 (i.e. confirms that the document before the court is the one she wrote and that it’s correct to the best of her knowledge and belief).
Lee Parkhill takes her through evidence in chief. He asks her to look at the plan of the house where P lives and confirm that it’s accurate: she balks at confirming the details of scale and measurement but confirms that the layout is correct.
She’s asked about the entry into the home and refers to a 28cm step, which several of us (I think) type into google to confirm that this is indeed the 11-inch step referred to earlier. There’s a detailed discussion about the length of ramp needed for a step of that height given recommendations on ramp gradients. “It’s basic maths,” says the judge: “imagine the height of the step as the shortest side of the triangle so the longer the ramp is, the less the gradient will be, and the shorter the ramp the higher the gradient”.
If, like me, the basic maths eludes you, there’s a wheelchair ramp length calculator online, which tells me that an 11-inch rise height with a 1:12 gradient (i.e. it rises 1 inch for every 12 inches of distance covered) will mean an 11-foot (132-inch) ramp. I picked 1:12 as the gradient because that’s what the occupational therapist witness said was needed (“though a more acceptable ramp would be 1:15”)[2].
The problem with a 132-inch ramp, says the witness, is that the front door of the property opens on to the road, and a ramp this length would extend into the road, which would not be safe.
The occupational therapist says that rear access is also problematic due to a 16cm (6-inch) step down from the kitchen to an outside courtyard. Carrying P in her wheelchair through the kitchen and over the step is “not advisable”.
In our chat group, the two occupational therapists watching the hearing with me message their agreement with what the witness is saying. One tells me it’s a very large and heavy wheelchair and to google “moulded tilt and space wheelchair” to get an impression of what it’s like. It’s huge. “Leans back far” and “Has large turning space”, she tells me.
The witness continued to document the problems. P’s bed (“a child’s character bed”) is too low to the floor for personal care. (“She needs a profiling bed” messages one of the observing occupational therapists.)
The witness reports that P weighs around 28.8 kilos, which is in excess of the recommended weight limits for carers to lift (especially women). There’s a “high risk of injury” – most likely to the person doing the lifting. It would be preferable to “mechanise the whole of the transfer”, she says, and explains how a ceiling track hoist would work. My fellow observers agree.
Under cross examination from Jake Rylatt (for P’s mother), the witness is critical of his client’s decision to avoid the hazards of kitchen and bathroom by washing her daughter on the sofa. “Accessing a suitable washing facility is to do with privacy and dignity,” she said: “I would always try to ensure privacy in a room that isn’t a public room such as a lounge”.
The judge intervened to explain to the witness his understanding that bathing P on the sofa “is not ideal”, but that it does at least circumvent the problems the witness had identified with carrying P through the kitchen, and with using the bathroom. He asked her to “put that to one side” and focus on “the other manoeuvres you don’t like”: the front door access, the move from wheelchair to bed and back. “I think it’s time to confess that I’m married to an ex-nurse – an ex-nurse who worked on a geriatric ward,” he says – and then asks about whether or not P has involuntary movements which cause risks when lifting her (yes) and whether she can “assist” the lift (no).
Somehow, despite the judge’s instruction to “put to one side” the risks associated with carrying P through the kitchen (since the plan was to wash her on the sofa). the witness brings this up again. The wheelchair is 62cm wide. The width of the kitchen at its narrowest point is 52cm (“what’s that in feet and inches?” asks the judge).
So, says the witness, there’s a high risk of accidental harm to P, especially if something is cooking on the stove. “Is my client really going to try and carry through P when the stove is on?” asks Jake Rylatt, incredulously. “I shouldn’t think so,” said the witness. “I’m not sure culturally how they prepare their food, but I did observe a large boiling pot on the stove – chicken or something”.
“But there’s no physical risk to P of receiving personal care on the sofa or in bed?”, he asked. “No”.
Counsel then asked whether, if the landlord were to give permission, and if the property were structurally suitable for adaptations, grant funding would be available to make those adaptations.
The judge intervenes to say that this is “theoretical”, surely, since the landlord has not given permission.
Jake Rylatt accepts this, but pursues the matter, and establishes that – in the hypothetical scenario he’s positing – there could be funding, and some adaptations could reasonably be made.
Counsel for the Official Solicitor wanted to know why these questions were being asked: was it “realistic” to think any of the adaptations could be made?
We observers were wondering the same thing. “Why are they discussing this if the private landlord will refuse these suggestions anyway?”, messaged one of the observers.
The judge reflected ruefully that “it’s possible to achieve all kinds of things to put in the adaptations that people with disabilities need, but a landlord doesn’t get the funding to take them away at the end” – which I took as an effort to display understanding as to why the landlord had declined any adaptations
And then the court rose for lunch.
“The consternation of my colleagues”
As counsel returned to the platform after lunch (and before the judge re-entered), it was obvious to observers that there was a problem.
The lawyers were talking about the possibility of adjourning the hearing.
There was talk of “partial information, lurking in the background” – information, as it turned out, that Jake Rylatt had been aware of, but had not disclosed to the court until the lunch break, when he had sent a document to the judge, copying in the other lawyers.
“I think this should properly have been raised with us at the start of the day and I am extremely disappointed that it wasn’t,” said counsel for the Official Solicitor.
The lawyers’ tense exchange was interrupted by the clerk announcing the judge’s entrance.
Jake Rylatt addressed the judge:
Rylatt: You will see the consternation of my colleagues and it relates to the document you were sent over lunch. I need to explain the circumstances under which this document is before the court.
Judge: Yes, I think you do.
Rylatt: It was handed up without agreement from the other advocates and for that I am deeply apologetic.
Judge: Did you know about this before lunch?
Rylatt: I did your honour. I want to explain the circumstances. The letter is dated yesterday. My client sought it after court yesterday and I’d discussed it with my client but had no instructions to disclose it.
Judge: I specifically asked you if your questions were hypotheticals. You asked them as hypotheticals.
Rylatt: I presented my questions as hypotheticals. I discussed this with my client as soon as I could in the lunch break and got permission to disclose. I had no intention to mislead the court or members of the bar. I can only hold both my hands up and say my deepest apologies.
Judge: It’s unfortunate that you put a hypothetical case. But it wasn’t hypothetical. I specifically asked, you see, if it was a hypothetical. This document says the landlord will allow the very things we’ve been speaking about.
It became apparent from Jake Rylatt’s account that, after court yesterday, P’s mother and her partner had gone to the estate agent responsible for arranging their house rental and asked if the landlord would reconsider his position, and permit some adaptations to be made to the house. The estate agent had said they’d consult with the landlord and sent a letter. Counsel for P’s mother had seen that letter by the time the hearing started today, but did not reveal it to the other advocates. It seems that he then sent it to the judge at lunchtime, without the knowledge or consent of the other advocates. All this is, I am told, counter to the expected standard of behaviour of barristers. I’d certainly never witnessed anything like this before over the course of observing more than 240 Court of Protection hearings.
“It’s put me in a difficult position, hasn’t it”, said the judge. He then paused the hearing to release the witness, asking her to remain available since she might be called back.
As I understood it, Jake Rylatt’s suggested way forward, given this “difficult position”, was for the judge to “unsee” the letter, and to continue with the hearing, making a decision without reference to the possibility of the landlord’s agreement to (some of) the proposed adaptations.
This was not an acceptable solution for anyone else.
“I’m confused as to where this leads us. The whole point of Mr Rylatt asking these questions of the occupational therapist was to see if the possibility of these adaptations being done affected the best interests analysis. So I don’t see how we can now ignore the tantalising possibility of these adaptations purportedly being done, and that this has been the case from the beginning of the hearing this morning.” (Lee Parkhill, Counsel for the local authority)
“I asked what can I do about adaptations to the property and you [Lee Parkhill] said I can’t do anything. It’s a private landlord. It’s not as if it’s a public authority. So I’m faced with the property as it currently is. If on the other hand the landlord say he can do at least some of the adaptations, this makes the property so much more amenable that it supports Mr Rylatt’s case – and ignoring that possibility will make my decision a complete and utter waste of time. … How can I do my duty to P to make a decision in her best interests if I don’t look at this. If it went to the Court of Appeal, they’d think I’d lost my marbles. … I spend my life making decisions for those who are under 18 and those in the Court of Protection. Strict rules of civil litigation don’t apply because I want to do right by the people who are before me. If that’s right, it should be looked at, because it might change the best interests analysis. I’m pretty sure the Official Solicitor would say it’s better to live with your family if you can, and it’s safe. I can’t do the mental gymnastics of seeing it and forgetting it because it’s possibly so fundamental to the case. It’s got to be explored, hasn’t it.” (Judge)
Counsel for P via the Official Solicitor was clearly extremely frustrated with the way this information had emerged. At times he was shaking his head in apparent disbelief at what he was hearing.
“I am exceptionally disappointed that on the second day of a 4-day hearing you are receiving information that is fundamental to the issue we have to decide. The court cannot ‘un-know’ it. Knowing this information but not knowing the extent of it is completely inappropriate. I am somewhat disappointed that questions were asked on a hypothetical basis when they were not hypothetical and that information was not shared with the advocates. […]. I am somewhat flabbergasted that we are in this situation. If the funding arrangements in this case were different, we would be seriously thinking of making a costs application.” (Pravin Fernando, counsel for P)
The judge was admirably calm and even-tempered, I thought, under the circumstances. He pointed out that he (the judge) was not raising his voice. He asserted his appreciation of Mr Rylatt as an advocate in his court. He attempted to pour water on the flames. “None of you are advocates that would try to ambush the other. You are all held in the highest possible regard”.
The way forward, he said, was to get information about what adaptations it might now be possible to make to the family home, and to explore the possibility of P living at home with her mother. “But it’s not going to be explored this afternoon, is it. I can’t draw up a balance sheet of pros and cons, saying the cons might not be cons, I don’t know”.
Arranging another time for the hearing is likely to be challenging. The judge thought it unlikely to be possible before February 2022.
The judge then asked for the occupational therapist witness to return to court and he thanked her for “answering the questions in a way that I was able to understand them and in a way that the mother and her partner were able to understand them”. She looked delighted to receive this feedback and asked “Could I make a little suggestion about the height of the bed”. The judge declined, saying “We might be looking at a lot more than the bed”, and ended the hearing.
Final reflections
I’m still struggling to process what I have witnessed.
I’m not a lawyer and I’ve learnt a lot about legal practice in this hearing. I didn’t know about ‘fact-finding’ hearings, I didn’t know a “Blue Book” existed or what it’s for. I’d never read Re AG. And I now know more than I did about the expectations for how advocates should behave in relation to their colleagues in court.
I’m not an occupational therapist or a wheelchair user. I learnt a lot from the detailed discussion of ramps and other adaptations about the skill and care that goes into making accessible space. Thank you to the occupational therapists who joined me on the second day of the hearing, and shared their expertise with me.
At the heart of this hearing is the question of whether P can live with her mother, who loves her and wants to care for her. Attempts to elicit P’s wishes and feelings have been unsuccessful, but the social worker has said that “having observed the loving and affectionate relationship that [P] has with her family and that she has been cared for by them throughout her life, it is understood that [P] would wish to continue to stay with her family and be cared for by them“.
If we set aside – as the judge said we must, since they are unproved and disputed – the allegations against the mother as an inadequate carer, then the only barrier to reuniting mother and daughter is unsuitable housing. If P’s housing is inadequate to meet her needs arising from her disability that would seem to be a problem for the local authority to solve – if necessary by rehousing her, with her family. I understand that accessible social housing is in short supply, but there was no discussion (not a whisper!) in this hearing about what the local authority had done to look for suitable accommodation. It’s depressing to think that the local authority can take someone into care, simply because they can’t provide appropriate housing in the community for her needs.
But it seems as though, to some extent, the (undeniably) unsuitable nature of the housing provides the local authority with a convenient ‘cover’ for managing their deep distrust of Ms X as a carer for her daughter. The local authority has already indicated that in the event that the judge decides that a return home is in P’s best interests, they will revive their allegations against Ms X. She must feel as though she faces an impossible hurdle. Yes, they now admit that they took her daughter unlawfully, but that doesn’t mean they will let her return home. Yes, they’ve dropped (or at least suspended) their allegations against her as a bad mother, but that doesn’t mean her daughter can come home either. So now she’s desperately addressing the adjustments to the property, promising to accept carers in the home – and waiting, still, for a decision which is now postponed for months.
It’s a devastating situation.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
[1] We are not allowed to audio-record hearings in the Court of Protection. I have done my best to accurately quote what was said in court, both in the pre-trial hearing and in the final hearing, but I do not have shorthand and my renditions are based on notes typed as fast as I could at the time. The quotations are therefore unlikely to be verbatim.
[2] The online calculator says: “It is always best to choose the longest ramp possible for the available space as this will provide a lesser gradient which is safer and easier to access for wheelchairs… There are regulatory guidelines surrounding permanent ramps which suggest a 1:15 gradient e.g. 15 inches of length for every inch of rise. This however is not always practical or possible for portable ramps. In this case, most only achieve a 1:6 gradient because of space restrictions”. (That would mean a ramp of 6 feet – or 72 inches – for a rise of 11inches.)
Photo by Nick Fewings on Unsplash
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