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journalist’s right to private and family life with her source

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

 

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the  Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive.  The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

 

If you want to skip to the chorus, it is HEARING THREE heading

 

Hearing one

The first judgment, 26th February 2014   was decided by Russell J.  http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C.  (These allegations are all disputed by G)

This is the judge’s summary

 

  • In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

 

 

 

  • The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

 

 

 

  • The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

 

 

 

  • All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

 

 

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

 

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

 

G had a degree of dementia. She was assessed by an Independent Social Worker  (underlining mine)

 

 

  • Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

 

 

 

  • On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

 

 

 

  • G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

 

 

There was also an expert, Dr Lowenstein, who reported.  Again, underlining mine for emphasis

 

 

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

[The Court of course, did not HAVE to consider Dr Lowenstein’s evidence at all, since it had been obtained without leave of the Court, but they did so]

 

Russell J’s conclusions on G’s capacity were these

 

  • In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

 

 

 

  • The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

 

 

 

  • There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

 

 

 

  • I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

 

 

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

 

[Everything that the Judge decided is very hotly contested by those lobbying on C’s behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

 

Hearing two

 

This was before Cobb J on 26th March 2014   http://www.bailii.org/ew/cases/EWCOP/2014/959.html

 

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported.  G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

 

  • I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

 

 

 

 

  • Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

 

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

 

  • Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

 

 

 

 

  • This approach was supported by the Official Solicitor in all respects.

 

 

 

 

  • Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

 

 

 

 

  • It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

 

 

 Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

 

  • I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

 

 

 

 

  • There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

 

 

 

 

  • As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

 

 

 

 

  • On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

 

 

 

 

  • Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

 

 

 

 

  • On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

 

 

 

 

  • There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

 

 

 

 

  • There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

 

 

 

She said reporters are always at her home or phoning her“.

 

That said, she added:

 

She said she wants people to know what is happening to her and that it has gone all around the world already.

 

And

 

I asked her if she remembered the name of anyone she had spoken to. She said she did not.

 

  • I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

 

 

 

 

  • It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.

 

 

  • I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

 

 

 

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

 

  • I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

 

 

 

were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G’s home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

 

 

  • For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

 

 

 

 

  • I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

 

 

Again, this is all hotly contested, but the judgment has not been appealed

 

Hearing Three

 

This one was before the President, on 1st May 2014  http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the  Mail on Sunday, in any trouble?  And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

 

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

 

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair.  All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

 

  • On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

 

 

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

  • As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

 

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend.  [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander – the Judge has said it, nobody has appealed it, so the issue is settled]

 

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

 

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn’t want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn’t have an article 8 right to access to G. It is more complex than that, I’ve reduced it to a manageable form because there are real people reading this blog]

 

The big stuff then – should ANL be made a party?  Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

  • Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

 

 

 

  • The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

 

  • But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

 

 

 

  • In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

 

 

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

 

  • The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

 

 

 

  • Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

 

 

 

  • Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

 

 

 

  • As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

 

 

 

  • Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

 

 

 

[That’s very considered and dense stuff – basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn’t that here.  ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don’t have a legitimate interest in the argument between G, C and the Local Authority.  They might be interested IN IT, but that’s not the same thing]

 

  • ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

 

 

 

  • In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

 

 

 

  • Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

 

 

 

  • The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

 

 

 

  • Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

 

 

 

  • I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

 

 

 

  • In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

 

 

 

  • I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

 

 

 

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it.  IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest.  Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said.  That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective.   They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity.  It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

 

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

29 responses

  1. forcedadoption

    As usual it is very simple and all a matter of cash. Like a predatory vulture the official solicitor and his acolytes descended on the is 94 year old lady to loot and rob her. Around £35000 savings in her bank were blocked without even informing her ! The official solicitor appeared in court to agree with every word said by the local authority contrary to the opinions so vigorously expressed by the client he was mean’t to represent.Was it relief she felt when he contacted her to say that he could no longer” represent “her? or was it horror when he revealed the reason was that her savings had all been taken to fund his fees and those of the court ;so thank you very much and goodbye ! Not even” I am sorry we took your lifetime’s savings from the bank without your permission leaving you nearly penniless”.No ,just a stern injunction from the rubber stamping judge to warn this95 year old lady that if she gave details of this highway robbery to the press or dared to speak to them at all he would sling her into jail without a second thought !Protect the court and all who serve it at any cost !
    These family courts now not only steal newborn babies from their mothers to feed the adoption industry ,they also rob the elderly and put them in horrible expensive care homes run for huge profits by owners who often have social service connections !
    Why do we tolerate these monsters in our midst?

    • Being the carer of an elderly victim of horrific abuse, I find myself nodding in agreement here. The state regards the vulnerable members of society as a commodity. The young are targeted for their bodies and, having been dragged away from their families screaming, are sold off, while the old are asset-stripped, normally behind closed doors. The perpetrators get away with it because the individual victims are not strong enough and powerful enough to take on the police, social services and courts by themselves, particularly when family members are conniving somewhere in the background. But more people are standing up against this outrage. Let us hope the protests pick up enough critical mass to stop this evil sooner rather than later.

    • The force for change will have to be publicly fought with whatever media is willing to report and hopefully some big gun ethical and morally inclined lawyers who start to put themselves and their families in the position of these people under CoP.

      With the growing number of elderly and the reductionist way that mental capacity and best interests are addressed / assessed to suit the state apparatchik things must be changed or we are all stuffed. I have no problem with my family having undue influence over me as long as they do not actually abuse me in a form I consider abusive- not the state definitions.,

      There are also 6 million carers and cared for who will be the targets of state authorised abuses and theft (see Panorama’s repeated exposures as a very relevant exposure of the nonsense of safeguarding by the state funded ‘industry’).

      I cannot accept this state funded behaviour for myself, let alone anyone more vulnerable,

      How can we just let judges, lawyers and others in pay of the state continue their good living depriving us of our voices- even when our wishes at times repeatedly change with either fluctuating capacity or when those we trust and rely on try to give their views to us which may or may not influence us.

      FACT- we are liable to be influenced both subconsciously and consciously by others. Why else to we have people who follow / copy / emulate others. Very few of us are truly making independent decisions over all our lives though we delude ourselves otherwise.

      I do not comment on the CF relationship with G, but on G’s right to speak out without an injunction.

      • forcedadoption

        Somebody forgot about this Article before they gagged the 94 year old lady they had just robbed! If she had been a terrorist QCs would have been queueing up to defend her rights!

        Article 10: Freedom of Expression HUMAN RIGHTS ACT

        (1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

        (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

      • Well no, of course they didn’t. The judgments are looking in detail at article 10 and the interaction between that and article 8, following very clear and established principles. You do yourself no favours when you criticise judges for not taking into account something that they obviously did.

    • Your response is not in the least surprising. Do you even read the judgments?

      • forcedadoption

        YES of course I read them ;Of course too the judge never for a moment seriously considered the article he had decided on the gagging before he even entered the court ,as his only intent was to prevent the old lady from complaining publicly that the “official solicitor had callously robbed her of her life savings!Those who drafted the article intended it to be a beacon for freedom of speech not a weapon to suppress it by invoking clausesof “exceptions” that were never mean’t to be used in that way.The hypocrisy of pretending that gagging a lady of 94 and threatening her with prison for her own good is breathtaking but typical of family court or court of protection procedures;

  2. Sadly, it is often the case that when a person becomes elderly and defenceless, a flock of vultures descends upon them to pick at their carcase without so much as waiting for them to die. There are those who offer and promise care services, only to use this as an opportunity to steal assets. They include family members, so-called friends and above all the so wrongly named “social services”. The fraud facilitator is so often the notorious Court of Protection with its almost paranoid need for secrecy and the Official Solicitor who “represents” the interests of the victim before plundering their assets to line their own pockets. Then along comes the press, smelling a story which, if they twist it around, will be sensational enough to sell a few more copies of their newspaper for a day or two. Once the damage is done, rest assured the likes of Christopher Booker and Sue Reid will walk away, having picked up the scent of the next victim. I fear for “G”, as nobody appears to be on her side.

    • We are on G’s side. I do not want the state to strip me of my assets should I need care and I wish the right to challenge social work / services view of capacity and to be able to make my views known heard and acted upon. I want the same for all otyer vulnerable people in need.

      Booker is a very aged man himself and I do not think is unsympathetic as he is one of the few raising issues consistently for 5 years or so on these matters.

      I do not read the Mail but have just read Sue Reids Article- SM its ‘facts’ differ from yours (I have not read the original judgement).

  3. And here’s another case which shows how utterly corrupt the Court of Protection is: http://lenlawrence.wordpress.com/

  4. Sorry, it is me again. There is so much more that could be said here. When G’s case first appeared in the press, I contacted the Dr Lowenstein mentioned above. His response to my initial enquiry was to ask me to phone him. When I did, he was not interested in the details of the case. The only subject he wanted to discuss was his fee. Another vulture?

    • I have had lawyers from high profile law firms suggest ‘experts’ who are totally irrelevant to the case/ issue – suggesting ignorance and a closed system of giving jobs to those that support their law firms. (I discovered late others had been suggested the same inappropriate and ineffective expert and said the same).

      Fortunately I am well educated / knowledgeable and gave the lawyer my opinion of his suggestion. I knew which experts would be correct and accepted.

      • There is a group of people centred around John Hemming MP about whom I have grown to become uncomfortable. As well as Hemming himself – I have been given information from various victims, who state he has misled them and caused them serious problems – there is Ian Josephs, William Bache (a solicitor), Christopher Booker, Sam Smith (one of Hemming’s advisors) and Sue Reid. I am still at the stage of collecting evidence and would be happy to admit my fears were unfounded, but the information I already have paints a disturbing picture.

  5. Forgot to add Lowenstein to that list.

    • Grandma B

      You may be right. I suspect these ‘helpers’ lack sufficient time / ability to assess each case adequately and may be no better than the standards applied by social work in the same situations- so what happens can be not as expected.

      As I have said the reporting of oral utterings are often poor / wrong and can be so distorted in reports / by the media that the picture given actually also is false. The unwillingness to spend time actually looking at volumes of original ‘state’ records and other evidence, to draw conclusions from these independently, is evident. So the advice / reporting may be wrong too. Ths goes for cases reported on Balli- I do not feel that heresay and hard evidence taken together as fact make for robust decisions.

      • forcedadoption

        The safest way to assess these types of cases is to ask “if everything the local authority allege is true” are their actions justified? Clearly the answer in this case is a very emphatic NO !!
        Even if the carers C and F were after G’s money nobody denies that they took good care of her, and even if G lacked capacity that cannot justify the official solicitor robbing her of her life savings and dropping out only when there was no money left for him to steal !Even if G lacked capacity it cannot justify her being threatened with jail if she dares to complain to the press!
        There should be no hiding place for these legal robbers………….

      • Sorry, I think you’ve missed my point. These “helpers” are not making “mistakes”, they are frauds and fakes feeding off the abuse victims.

      • forcedadoption

        Unfortunately the Official solicitor has stolen all G’s savings and told her himself that her £35,000 had gone and as there was nothing left he would no longer represent her !Probably a relief in a way because he took the social service viewpoint against his client’s wishes;Carers wait hoping for a favourable will but the rapacious official solicitor grabs all the money while the old people are still alive!
        I don’t know how I am supposed to feed off these parents and old people. I am a successful businessman but that enables me to spend a few thousand pounds every year doing my best to help them as does John Hemming M.P. The only way oppressive laws get changed is through publicity and thanks to Christopher Booker and Sue Reid that is what we are getting now!
        Very young children were treated terribly badly in Victorian times,working down mines ,up chimneys,and in sweat shops but it was largely due to the novels of Charles Dickens that conditions for them improved.
        Suffragettes tied themselves to railings and sabotaged the Epsom Derby getting themselves the publicity that got women the vote.
        Thanks to journalists telling people the politicians are often forced to act so thank you Sue and thank you Christopher for your efforts to bring about changes in the family courts and the court of protection !

      • @ Forced Adoption. I agree with you entirely. If G’s assets go to C and F, then there is nothing left for the official solicitor to steal.

  6. I have to say SM- just briefly glancing at the Ballii judgements that some of what is purported to have been sad by G may have been ‘misused’ especially by social services to push their case against carers C and F who were Ms G’s self chosen ones. This is not an unusual tactic to embellish’ when they want to take control and get their own pre-determined outcome- nothing to do with best interests.

    I am inclined to wonder if Sue Reids report of who the ‘spider was’ is actually correct and the judgement seems to be unclear save someone (SW) stating C being the spider. But if you saw the programme Protecting our Parents a very upset, tearful Betty stated her hatred of social services after their interventions / bullying and said ‘I never want to hear the words social services again’. This was live media- so social workers could not doctor it. In MS G’s case nothing would surprise me, after all they would want C to be seen as the spider and not themselves.
    The expets report on capacity seems not to be up- so there is room for speculation, judges do not actually interview enough people. The off duty policemen’s obervations of the protest meely gives a picture of an old lady voicing something in her own words which may or may not mean much to him. Anyone who works with the incapacitated 24/7 actually can understand that person better than others even when speech / thinking is limited- communication becomes a mix of observation, verbal and non verbal cues. Not even social workers have skills in this from my experiences.. .

    • Good points.

      In the early days of my mother’s case (Google: “The Abuse of Grandma B”), I was naive enough to let social workers speak to my parents alone. They lied and falsified the record to abet her abusers in anticipation of a share of the assets they were hoping to plunder. For more of this story, do see:

      https://grandmabarbara.wordpress.com/york-council-corruption/mark-bednarski/.

      Earlier this week, when my mother was in hospital, social workers pounced on her the instant I left the ward and tried to stitch her up. When I returned to the ward unexpectedly, they became very abusive and left the ward bawling at me,

      Sue Reid is two-faced. Her job is not to write up the facts, but to sell stories. Don`t let the facts get in the way of that one!

      After six years of caring for my mother, I can confirm that what she says and what she means are not always the same thing. How many times have I heard, “but I didn’t want to worry you”?

  7. I don’t follow these statements that the Official Solicitor is no longer representing G; the latest report demonstrates that he clearly is. if she has no assets left she would qualify for legal aid.

    • forcedadoption

      She has a house worth at least £350,000 so cannot qualify for legal aid .The whole idea of the social services and the court of protection has been to rob her of all her money (successfully done) and then force her to sell her house since she will not be able to maintain either herself or her house now all her hard earned savings have been stolen by the State.
      This pattern is now being repeated all over the country !

      • Let me check quickly your position on these sorts of cases

        Do you think

        1. That it is right that the Court of Protection can take action to safeguard the finances of a vulnerable woman from being abused by those around her, but they are wrong to do so in this case? OR

        2. The State should just keep out of it altogether in all cases?

        I can absolutely see how you are looking at this particular case, but there is another fairly obvious way of looking at it if you read the judgments. By taking the power to control G’s assets away from C, the Court removes both temptation and suspicion. But I am interested in whether you just fundamentally oppose the Court of Protection’s jurisdiction in this area in all cases.

        On the Official Solicitor issue, I do somewhat share a portion of your views (not the more crackpot ones about the OS being in it to steal her money). If a person has capacity, they can tell their legal representative to fight the case fearlessly on their behalf (even if a reasonable person would not). But the Official Solicitor does not have to follow what the person’s expressed views are, he/she has to conduct the case in accordance with what is in their best interests. Sometimes the best interests and their expressed views entirely overlap, sometimes they don’t (sometimes a person’s expressed views can be very difficult to ascertain or are changeable). The problem that I have with that is that the Court already has someone there who is deciding the case on the person’s best interests, the Judge. And if the Official Solicitor’s view of best interests does NOT overlap with the person’s expressed views, that ends up with nobody really representing those expressed views. I would rather that the Official Solicitor’s default position was “If the person is expressing a view, fearlessly and frankly represent those views and let the judge worry about best interests. If they are not, then advance what is considered to be in their best interests”

      • Leaving aside the more hyperbolic of Ian’s remarks (and inability to understand who it is decides incapacious people shouldn’t enjoy non-means non-merits legal aid—i.e. the MoJ and the Government, not the courts and the OS) , there is something troubling about this woman being made to pay for litigation she probably would rather not be involved in with the result, if true, that it exhausts her savings.

        I’m no supporter of the OS in its current form, either. I’d far rather see provision of specialist support workers whose duty is to help those who lack litigation capacity give the best instructions possible and understand the legal advice given, and specialist solicitors whose role is to convert those into workable instructions for counsel. Capacitous litigants are entitled to run hopeless cases and I’m uncomfortable within incapacitous people being denied that chance.

        Having said all of that, there does seem to be a simple solution for the initial problem of C’s relationship with G’s assets.

  8. forcedadoption

    My position is clear.It is totally totally totally wrong for the State to take £35,000 life savings out of an old lady’s bank and squander it all on fees for the court and the official solicitor! That is the kind of “safeguarding” any old person could do without !Such unscrupulous looting can never be justified even when it is legal !Even worse when they threaten the old person with jail if she dares to complain to the press about the way that the judge and the Official solicitor robbed her !
    Someone is truly vulnerable when they are unable to say what they want and unable to understand what a court and a judge are there for.In this and in the majority of cases that I know about that just was not so.In this case G spent £1000 of her own money travelling all the way to Hampshire to spend 5 hours of exhaustive tests with the ex president of the international council of psychologists who pronounced her as having capacity. They still robbed her !
    In another case the same doctor came to the rescue of a woman who was and still is a senior compliance officer for a major bank earning £550/day when a judge and social worker tried to say she had no capacity !
    The answer to your question is that” husbands and wives” or” parents and children “should never be forcibly separated unless there is proof of criminal activity.Other elderly folk should be allowed to consult their own psychiatrist/psychologist to judge capacity if needed,but generally speaking any old person should be left alone if they can tell the judge what they want and why they want it clearly and coherently as did G from the well of the court several times ! G should have been allowed to testify rather than be judged to have no capacity and thus gagged in advance !
    Can I finish with this question for you Suespicious minds? Do you approve of the way this old lady’s life savings were taken and squandered leaving her nearly penniless and then gagged to stop her going to the press to complain?And do you approve of such goings on generally?

    • I agree entirely with Jim here. I do think that it is wrong that incapacitous people who express a view don’t get the opportunity for that view to be argued on their behalf. And I also think that it is wrong that there is not non-means non-merits legal funding for people in G’s position.

      Ian, I do think that G ought not to have to pay a penny for litigation which is intended to protect her (that’s the fault of the Ministiry of Justice and the Government, not the Courts, and I am no defender of the Ministry of Justice). Having said that, I would rather that £35,000 is spent to stop this woman having £385,000 stolen from her or potentially stolen from her by carers who were trying to get her to change her will in circumstances that are set out in these judgments.

      • forcedadoption

        Suespicious I am a businessman with some knowledge of the law but I am not a lawyer so I judge by results not legal theory .You say there was “litigation intended to protect her” ;The fact is that the parasite calling himself the “Official solicitor” predictably repeated like a parrot “I agree with the position of the local authority” directly contrary to the wishes of his client charging £400 /hour for this meaningless and unecessary contribution until her funds were exhausted and then dropped her like a hot potato !
        Both Christopher and I have spoken to her own solicitor who confirmed to us that the carers accounted regularly to him for expenditures and that all was in order.
        Put yourself in the place of G;Living in her own house with enough savings to cover her for the rest of her life and cared for by a couple from her own island whom she repeatedly told the judge she regarded as family.
        Now however robbed of all her savings,by hostile lawyers,unable to testify in court because of a hired gun psy, but still able to interject in vain making her wishes clear that she wanted social workers and police to stop harassing her and get out of her life.; she may be forced to sell her beloved house to maintain herself for her remaining years thanks to the highway robbery perpetrated on her by the court of protection and the official solicitor.
        Try to see it from her point of view! Gagged in court except for interjections that she still managed to make ,robbed blind,and then gagged again to stop her going to the press to expose the perfidy of it all !
        Be realistic,nobody need to be judged on capacity if they want to speak to the press.The press will judge if what they hear is worth printing or not.The court of Protection is( like the family courts) protecting itself by the gagging orders and I do not believe that anyone sincerely believes otherwise!

  9. Ian- I largely agree with you. But I would want it to be extended to those who loose capacity too, where there is evidence that their resources / or lack of them were perhaps dealt with by ‘P’ and his family / others in ways particular to ‘P”s personality and culture.

    Without this best interests decisions become ‘accusations’, against others from the state SS / judge as we often see on these cases, that lead to decisions that P themselves would have been horrified with.

    Protecting the vulnerable has become a game of control by the state machinery. I do not believe OS / CoP actually aim to steal ‘P’s assets, but they clearly do not protect them either from state supported theft.

    My views on the current state of safeguarding are now becoming commonplace and as someone with assets to leave I never want the state to have any of them even if I loose capacity. I am sure that applies to most older people who still have some relatives.

    The Mental Capacity Act is not fit for purpose and has been we know misused- the recent evidence taken by a committee highlights people’s actual experiences, not the ‘rosy view’ of SS doing things in ‘best interests’ of ‘P’.

    More will think about euthanasia in the UK as they age, giving away their assets to whom ever they choose before hand- I think that will be the alternative when you still have capacity to act thus and one I would choose personally rather than ever have SS in my life.
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