“A blatant disregard of the process of the MCA”

HHJ Nicholas Marston made findings of extensive breaches of the Convention rights of P, a young woman with severe learning disabilities and autism, and her family, by Somerset County Council, in a highly critical judgment.   P was 19 and had lived with her family all her life.  In May 2013 P became distressed and disruptive (possibly due to her menstrual cycle) at school and was returned home early from a school trip.  That evening her mother M noticed bruising to P’s chest and reported it to the GP and to staff at the respite placement where P was due to stay during a family holiday M was due to take.

During M’s holiday further bruising on P was noticed and a safeguarding procedure was put in hand.  Those investigating the injuries were criticised by the judge for failing to obtain the “easily discoverable” but key information that P had been seen to hit herself heavily on the chest during the school trip.  Instead a decision was taken that P should not return home and M was informed of this on her return from holiday.  It was plain that P’s whole family sought her return but P remained at the placement where her distress resulted in the prescription of aripiprazole, an anti-psychotic medication with a sedative side effect.  In November 2013 she was moved to a second placement and in December 20113 a standard authorisation was granted and the local authority applied to the Court of Protection.

A nine day fact-finding hearing took place in May and June 2014.  Shortly before the hearing the local authority decided not to rely on any allegation regarding the bruising which had led to the safeguarding investigation.  The findings are set out in the judgment.  In giving his findings in relation to M’s parenting style and relationship with professionals the judge said:

“35. Finding 22, inability to accept advice on M’s part, and finding 23 M’s rigid style both of parenting and of dealing with professionals, are important issues when considering if returning home is an appropriate option because they directly relate to issues about the care P would be getting at home. Three points need to be made first. As I have already said, given the longevity of the relationship between M and the social workers and the number of social workers involved, there are bound to be some people who don’t get on and some who do. In her evidence M told me of social workers she had had good relationships with and others (the majority it has to be said) she did not. Second, M has a strong personality, otherwise she would have sunk under the weight of cares and problems in the last 20 years and she perceives herself as having to fight for a good deal for in particular P and A.  Third, as will become clear in the later parts of this judgment when I examine the conduct of the LA over the last 13 months, she and her family have had a lot to put up with. In his evidence the senior manager for social services conceded LA failures across the board and the damage that has done to the family and its relationship with the LA. Having said all of that there have in the past, prior to May 2013, been real clashes of personality and failures in communication but I cannot find that it has been proved on the balance of probabilities there has been an irrational refusal to co-operate from the family with the statutory authorities. The best evidence for that is that there was never, in the whole of Ps minority, an application in public law proceedings and no doubt if the LA had had evidence at the time of failure to co-operate on a scale which was causing P or any of the children significant harm such an application would have been made.

36.Two final points before leaving the Schedule, first the relevance to a best interests decision now of historical concerns which have never led to legal action prior to May 2013 has always been, in my view, difficult to demonstrate, so I agree with the comment in the Closing Submissions of the OS for P at paragraph 28 page 7: “…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.”  Second, the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.”

The independent social worker instructed recommended a return home by P and this was supported by the Official Solicitor.  The judge found that the balance fell decisively in favour of a return home.

On the conduct of the local authority the judge said:

“75. In its position statement of 22/4/14 the LA concede that P was deprived of liberty and that there was a period where that deprivation was unlawful. It’s case is that was from the end of the respite care in early June to the urgent authorisation on 28/11/13. It further concedes that the deprivation of liberty and loss of her society to the family amounted to an interference with respect to their right to a private and family life contrary to Article 8 ECHR and that interference was not in accordance with the law. It argues that if a lawful process had been followed it is likely that P would have remained away from home while the LA pursued its concerns over safeguarding (the bruising issue) and in due course of time P would have moved to a residential home as they now suggest. It is conceded that if I do not think the residential home is in P’s best interests P should have been returned home at a significantly earlier date.

76.There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

77.The LA seeks to rely on the DOL urgent authorisation it obtained on 28/11/13 to close off the period of unlawful deprivation of liberty. In the case of London Borough of Hillingdon v Neary(2011) EWHC 1377, a case that has many depressing similarities to this one, Mr Justice Peter Jackson said at paragraph 33:

“The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in that place at all. Using the DOL regime in that way turns the whole spirit of the MCA on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case far from being a safeguard the way in which the DOL process was used to mask the real deprivation of liberty which was the refusal to allow Stephen to go home.”

78. I find that is also precisely what has happened here and the breach of Article 8 rights continues up to now.

79. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.”

The judge noted that the Official Solicitor had indicated the intention to pursue a claim for damages for breach of P’s Articles 5,6 and 8 rights and to make that application within the COP proceedings

Post-Cheshire West Judgment Released

The President today released a preliminary judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 25 setting out briefly his answers to those of the 25 questions he posed at an earlier hearing and which require an early decision. It concentrates on the issues directly relevant to what he calls the ‘streamlined’ process. It sets out no more than the broad framework of what the President considers is required to ensure that the ‘streamlined’ process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the Rules Committee.

A further judgment will follow in due course, elaborating on his reasons for deciding as he has and dealing with the questions – in particular questions (6), (8) and (10) – not dealt with in this judgment.

The judgment sets out a pretty detailed list of what information the new application forms should direct that applicants provide including that professional medical opinion will be necessary – a GP report may suffice, but he has not gone as far as saying that e.g. a social worker can confirm a long-standing diagnosis.

On the questions of greatest concern to practitioners:

The President held that P does not need to be a party, but he has made very clear that P must be able to present their case properly and satisfactorily and participate – and he has delegated how that should happen to the Rules Committee .

 

  1. What the Convention requires is that P be able to participate in the proceedings in such a way as to enable P to present their case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, and in my judgment it can in principle be met without P being joined as a party, there is no need for P to be a party.
  2. If P is a party to the proceedings, P must have a litigation friend. If P is participating other than as a party, there is no need for a litigation friend.
  3. These are all matters which require urgent consideration by the Committee as part of its more general review of Rule 73(4)

A LF does not need to act through a solicitor to conduct litigation, but requires the permission of the court to act as an advocate on behalf of P: in both of these conclusions he has (at this stage) followed Gregory v Turner.

All applications must be made to a judge and certain factors may trigger the need for an oral hearing although this is not needed in all cases.  These include:

  • Any contest, whether by P or by anyone else, to any of the matters referred to in paragraphs 35(ii)-(vii) below.
  • Any failure to comply with any of the requirements set out in paragraph 35(viii) below
  • Any concerns arising out of information supplied in accordance with paragraphs 35(ix), (xiii) and (xiv) below
  • Any objection by P.
  • Any potential conflict with any decision of the kind referred to in paragraph 35(x) below.
  • If for any other reason the court thinks that an oral hearing is necessary or appropriate.”

“Bulk” applications are not lawful.  (para 38-9).

Reviews should be annually unless otherwise required; must be judicial and may take place on the papers, whether or not there has been an earlier oral hearing, raising the possibility of a process where there is no hearing at all and where P would not have the benefit of legal aid which requires an oral hearing.

Update: together with Neil Allen and Tor Butler-Cole, Alex has produced this document which provides a practical guide to such applications (and seeks to answer some of the questions arising from the judgment).

Courts Service may have to meet costs of legal representation where no other funding is available

 

The President has just handed down a judgment in a family case, Q v Q  [2014] EWFC 31 which has implications for Court of Protection practitioners as well as for those working in the family courts.

The judgment related to three unrelated cases: Q V Q, where the President had previously handed down a judgment Q  v Q [2014] EWFC 7 ; Re B, which had been heard by HHJ Wildblood (D v K [2014] EWHC 700 (Fam))and a third case, Re C.

All were private law proceedings where the father of child who lived with the mother sought a role in the child’s life. In all three the mother had legal aid and the father did not.

The cases raised problems which pre-dated but were exacerbated by LASPO.  The President summarised the provisions of LASPO and exceptional funding regime; noting that the threshold for exceptional funding had been found too high in Gudanaviciene and others v Director of Legal Aid Casework [2014] EWHC 1840 (Admin)and commented that the very small number of successful applications for exceptional funding suggested that the system was “inadequate” [at para 14].

Q v Q was an application for contact by a father who was a convicted sex offender, where the President had invited the Secretary of State for Justice to intervene and make submissions as to how expenditure for certain activities could be met if the court considered it to be necessary but it was not available from legal aid and in particular if it could be met from the other party’s certificate or from the court [para 23].   The Secretary of State declined to intervene; the father had asked the Public Law Project for assistance with exceptional funding application.  The proceedings had stalled because the father required an interpreter and possibly a translation of documents; there was no funding to bring the experts in the case to court; and the father had to appear as a litigant in person.

In Re B a father applied for contact with his child.  The  mother asserted the father had raped her, necessitating a fact-finding hearing.  As in the other cases the mother had legal aid and the father did not, giving rise to the spectre of the alleged perpetatrator cross examining an alleged victim in person. This would have been prohibited had this been a criminal case: s34 YJCEA 1999 .

Section 31G(6) Matrimonial and Family Proceedings Act 1984 was amended by Schedule 10 Crime and Courts Act 2013  and provides

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to – 
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

HHJ Wildblood found this criteria to be met in January 2014 . Following this the father eventually succeeded in obtaining legal aid after commencing judicial review proceeding sand following the judgment in Gudanaviciene.

Re C again concerned an application for contact by a father where the mother asserted that he had raped her. The father was awaiting trial at the Crown Court.

The President noted at para 43 that:

“The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court.”

By way of setting the scene he referred to the over-riding objective of dealing with cases justly, set out in FPR 1.1  (and at COPR3.1) as well as the requirements of the courts to act consistently with Articles 6 and 8 of the European Convention and the requirement that A6 rights should be effective.   Mantovanelli v France (Application no 21497/93  (1997) 24 EHRR 370) indicated indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.” (at para 49).

In connection with the need for an interpreter in Q v Q the President noted that HMCTS would provide an interpreter in domestic violence cases or those involving children and commented [at para 53) that where appropriate and if no one else could pay “HMCTS will also, I imagine, pay for the translation of documents needed”, and noted that he had made orders to this effect in this and other cases.

As regards the attendance of the expert the President referred to the requirement that expert evidence should only be obtained when necessary to assist the court in resolving the proceedings ‘justly’ (s 13(6) Children and Families Act 2014).

He said

“56.In principle, the first question in that situation must be, is it, in the view of the court, “necessary”, if the proceedings are to be resolved “justly”, to have the expert in court to answer questions, or will it suffice for the court to be able to read the expert’s report? If the proceedings can be resolved “justly” without requiring the expert’s attendance, then there is no reason why public funds should be spent on something which is, on this hypothesis, unnecessary. If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost.

57.In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS. It is, after all, the court which, in accordance with FPR 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.”

What if the litigant does not have access to competent legal advice on the difficult questions raised by the allegations against the fathers, raising questions as to whether they are compellable witnesses and the extent to which they could be required to answer – matters the President described as “deep waters”?

The problems from the lack of representation generally were exacerbated by the “acute tensions” where an alleged perpetrator might cross-examine an alleged victim. This had been raise in 2006 in H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162,

In the President’s view S31G(6) clearly anticipated questions being put by someone other than the judge and he held [at para 79]

“In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.”

Applying this to the cases before him the President noted that the issues in Re B had been resolved. If the father’s application for exceptional funding in Q v Q was not granted the costs of the experts, whose attendance the judge found to be necessary, would have to be met by the court.

With regard to Re C the President concluded:

85. I have however come to two conclusions which I can and ought to set out. The first is that the matters to which I have referred above (in particular those relating to the issues of privilege and related issues) are matters on which the father in Re B, and even more so the father in Re C, desperately needs access to skilled legal advice, both before and during the fact-finding hearing. These are not matters which the judge conducting the fact-finding hearing can determine without the benefit of legal argument on both sides. If the judge is deprived of adversarial argument, and if the father is denied access to legal advice both before and during the hearing, there must, in my judgment, be a very real risk of the father’s rights under Articles 6 and 8 being breached both in the family proceedings and possibly also, in the case of the father in Re C, in the criminal proceedings. I bear in mind, of course, that, as I explained in Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, para 51, the admissibility in the criminal proceedings of any admissions made in the family proceedings is in the final analysis a matter for the criminal, not the family, judge. But this does not, in my judgment, meet the difficulty.

86.Linked to this there is, in the case of the father in Re C, a related point made by Ms Bazley. The proper – the fair and just – management of the case requires, in my judgment, that I give directions inter alia requiring the father to respond to the mother’s allegations and to file all the evidence upon which he intends to rely. Ms Bazley submits with some force, and I am inclined to agree, that to require the father to comply with that part of the order without access to proper legal advice is to imperil his rights under Articles 6 and 8.

87.I add only this. If, on the merits, the circumstances in Re B were such as to bring the father’s application within section 10(2)(a) of LASPO, and the LAA has conceded the point, then it might be thought that the father’s claim in Re C is a fortiori.

88.If the father’s application for public funding under LASPO is successful, then all well and good. If it is not, then I will have to consider what, if any, further order to make. I am inclined to think that, for all the reasons already indicated, the father in Re C requires access to legal advice beforehand and representation at the fact-finding hearing to avoid the very real risk of the court being unable to deal with the matter justly and fairly and of his rights under Articles 6 and 8 being breached. I am inclined to think, therefore, that, if he is unable to afford representation and pro bono representation is not available, and if there is no other properly available public purse, the cost will have to be borne by HMCTS.”

The President emphasized that directions that HMCTs should meet the cost of certain activities should only be met as a last resort and then only following consultation with a HCJ or designated family judge. Such directions may or may not be appropriate in cases which involve allegations of either serious non-sexual assault or of sexual assaults of a less serious nature.

Comment:  The President concluded that the Ministry of Justice, the LAA and the Courts Service “may wish to consider the implications” of his judgment.  It is likely that this will have far-reaching implications in the most extreme cases and no doubt will be considered by practitioners involved in other cases where the facts are different but where the lack of funding- including even exceptional funding- gives rise to a “very real risk” that the Court cannot deal with the matter fairly.   In the Court of Protection context the issue of funding for expert evidence is a familiar one, and is also affected by the decision of the Court of Appeal in JG v The Lord Chancellor and others: [2014] EWCA Civ 656.

 

 

 

Government to appeal against striking down of residence test

The Government has said that it will appeal against the decision yesterday to strike down its attempt to introduce a residence test for legal aid.

Ruling on a challenge to the test brought by the Public Law Project, in which the Children’s Commissioner intervened, the Administrative Court unanimously concluded yesterday that the draft regulations currently before parliament could not be enacted by secondary legislation.  The court further held that the discrimination against those who could not satisfy the residence test could not be justified solely on the grounds of saving money.

Court of Protection Rules Committee convened

The Court of Protection Rules Committee is an ad hoc committee set up by the President of the Court of Protection and chaired by the Vice President.  The Committee is to review the Rules in light of recent developments including the Supreme Court judgment in Cheshire West.   A previous committee had recommended changes to the Rules in 2010, the majority of which have yet to be implemented; further changes subsequently (including amendments to the Civil Procedure Rules with effect from 1 April 2013) have made the need for changes to the Court of Protection Rules even more pressing.   Further updates will be provided as and when possible.