Representing parents who lack litigation capacity - comments and corrections!

This is a follow up to my last post, prompted by discussions with Unity and Carl Gardner on Twitter and in the comments.  It relates to the EHRC's written submissions for RP v UK.

I'm not sure what the blog etiquette is for when you change your mind; whether one should go back and change the original post, put in a messy strike through and corrections, or just write another post...? In this instance I'm going for the latter since my change-of-heart is less of a neat U-turn than a 20 point turn in a narrow road.  I had written "There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment)." Unity makes this comment:

Para 77 - No real cause for concern. What that appears to document is the Official Solicitor informing RP of their opinion that she has a hopeless case and cannot, therefore, oppose the court for ethical reasons. OS's duty to act in RPs interests is bounded by ethical duties which cannot be overriden, even if this is not what RP wants.

Para 160 indicates that the court concurred with the OS's judgment and hence that he behaved ethically.

I think Unity is correct, and my initial reading was wrong.  On closer reading, I think it looks as if the OS may have made a best interests assessment, but part of that assessment included whether the case had a realistic prospect of success, which in turn required that the OS take a position on how the court was likely to view the best interests of the child.

On the new website for the Official Solicitor, there is an entire page devoted to how he acts on behalf parents who lack litigation capacity.  On this page are some documents setting out his standard instructions, and one relates specifically to how he represents parents during Children Act 1989 proceedings.  It's well worth a read if you're interested in this issue; section 3 describes in some detail the basis for his decisions.  As I had expected it to be (and hence why I was surprised by my initial reading of the judgment), decisions are supposed to be taken in the best interests of the protected party - in this case the parent - and not the child. This is what the OS says he takes into account in determining what is in the best interests of the protected party:

(1) the client's past and present wishes and feelings, the beliefs and values that would be likely to influence his or her conduct of the proceedings if he or she had capacity, and the other factors he or she would be likely to consider if able to do so; 

(2) the need, so far as reasonably practical, to permit and encourage the client to participate, or to improve his or her ability to participate, as fully as possible in decisions relating to the conduct of the proceedings;

(3) the need to respect the emotional bond between parent and child; and 

(4) the fact that the court will view the child’s welfare as the paramount consideration and apply the welfare checklist.

 He then goes on to state:

3.3 In formulating my submissions as guardian ad litem I would wish to present any realistic arguments and relevant evidence that may be available on behalf of (i.e. in support of) the protected party in relation to the issues before the court, whether these are issues of threshold or of welfare. The criterion is whether the point is reasonably arguable, not whether it is likely to succeed at trial. In relation to issues where there are no realistic arguments to be made it will almost always be more appropriate (although not inevitably the case) for me not to oppose, than to make explicit concessions on behalf of the protected party.

Although the EHRC make the point that the OS's decisions should be based purely on the best interests of the protected party and not the child, they don't cite or comment on the OS's own guidance.  And since the EHRC's role is not to take sides in this particular case, they can't be asserting that the OS's guidance was not followed in this instance.  So it may be that they have seen, and tacitly affirm, the OS's guidance, but then it's not really clear then why they are raising this point.  Perhaps it's just a general reminder to the court.  I'm sure, in any event, it's a point the government will bring to the ECtHR's attention!

I don't think that's quite the end of the story though, as it might be possible to argue that sometimes there are best interests grounds for the OS to bring cases even though he regards them as unwinnable.  Perhaps to prevent vulnerable parties seeking support in their cases elsewhere.  It would be a pretty tough case to argue, and in any case would presumably be a matter to be taken up more appropriately in the Court of Protection.  And I certainly don't think you could argue that the sole determinant in the best interests test should be the desires of the protected party; there would be very little point having the OS at all if his instructions simply mirrored their views.  It seems to me that the only really arguable point in this case therefore relates to the mental capacity assessment itself - and whether a mechanism should have existed for RP to challenge the appointment of the OS in the first place.

It's a really tricky issue, and I still don't feel quite comfortable with where I've arrived at on this. I'd be interested in anyone else's views, particularly anyone with experience in the family courts in similar circumstances.  I do feel the points the EHRC raise regarding the availability of community support are valid, and these would indirectly impact upon the winnabiltiy of cases - but the OS cannot be expected to present a case whose winnability depends upon resources that are not in reality available.  Unity is right again when he says "any challenge to the Local Authority's assertion that they would be unable to provide RP with the care necessary to allow her to raise the child is a separate matter which necessarily would have required separate litigation."  This may mean that the ECtHR will consider that there were other avenues available domestically that were not taken up, and will therefore not consider this aspect of the matter.

Strategic litigation by the EHRC

The Equality and Human Rights Commission was established in 2007 to promote and enforce equality and human rights laws in the UK.  It replaced three well respected predecessor bodies: the Racial Equality Commission, the Equal Opportunities Commission and the Disability Rights Commission.  The EHRC has powers to conduct formal inquiries, to bring judicial review proceedings to prevent breaches of the Human Rights Act 1998, to undertake legal policy work including briefing ministers and parliament on human rights issues in draft legislation.  It also has powers to intervene in particular legal cases, where it feels important equality or human rights principles are at stake.

I wrote to the EHRC some time back asking whether it might consider sharing its written submission in the Court of Appeal hearing of P & Q v Surrey County Council (on appeal from the High Court ruling MIG & MEG).  The EHRC was under no legal obligation to share these submissions, as documents relating only to court proceedings are subject to an exemption under s32 Freedom of Information Act 2000.  However, the EHRC didn't only share it's submissions in P & Q with me, but also some very interesting written submissions in several other cases relating to mental health, mental capacity and human rights.  It's a common source of frustration for legal researchers that we have little access to court documents beyond the published judgment, so it's a wonderful opportunity to see some of the arguments that were put before (or will be put before) the courts, but which may not have been addressed or mentioned in the final judgment.  It's also a great opportunity to read some high quality legal reasoning produced on behalf of the EHRC.  I am very grateful to the EHRC for sharing them with me, and also pleased they're happy for them to be shared more widely on this blog.

EHRC written submissions in P & Q (MIG & MEG)

The EHRC intervened in the P and Q case at the Court of Appeal.  I've written previous posts about the judgment in the High Court, and the Court of Appeal, so I won't repeat any details of the case here.  As I understand it, permission to appeal in the Supreme Court is being sought (the outcome on permission should appear here in the next few weeks/months), and I hope the EHRC will also intervene at that point.

You can read a copy of the written submission here.  It was drafted by Paul Bowen at Doughty Street Chambers.  Bowen has been involved in lots of very high profile and important cases, including the Bournewood judgment itself and another important deprivation of liberty case JE v DE (2006).  In the Court of Appeal ruling, it was held by Lord Justice Wilson that absence of objections by the relevant person pointed away from their being deprived of their liberty [25].  The EHRC submission prepared by Bowen explicitly cautioned against this approach:

P's lack of objection to remaining may be a consequence of the measures placed upon her and her particular suggestibility or other vulnerability. This is one reason why it does not follow that, because P's objections are relevant in determining there is a DOL, P's lack of objection is also relevant in determining there is no DOL. P's lack of objection may be mere acquiescence in the face of the restrictions placed upon her, which is a reason for concluding those restrictions do give rise to a DOL rather than the opposite

I find this argument very attractive.  I and others have expressed concerns that the Court of Appeal ruling could leave people with very limited communication abilities without the protection of the safeguards.  Bowen's argument takes this one step further.  Even if people are physically able to communicate objections, the effect  of the restrictions placed upon them may be such that they acquiesce to them under pressure, and feel mentally or emotionally unable to express dissent.  Sociologist Erving Goffman called this effect 'institutionalisation', or - more dramatically - 'mortification of the self'.

John Wadham is the Group Legal Director at the EHRC, and in addition to the written submission prepared by Paul Bowen he drafted his own witness statement, which you can read here.  He expressed particular concern that the deprivation of liberty safeguards framework did not extend to children (MEG, now Q, was 17 at the time of the High Court hearing), and the potential for abuse where there is no external scrutiny of the treatment of vulnerable incapacitated children.  The Commission proposed an alternate procedure for children, whereby if the local authority has reason to believe deprivation of liberty may be taking place, they should conduct an assessment and appoint an advocate.  If either the local authority or the advocate do not find the restrictions proportionate, they should apply to the Court of Protection for a ruling on its lawfulness.  The Court of Appeal made no comment on this expression of concerns; perhaps it will be taken up by the Supreme Court.

Written submission in A Local Authority v A (A Child)& Anor [2010]

This was another extremely important case in the High Court, heard by Lord Justice Munby.  In A Local Authority v A Munby LJ was asked to determine whether an adult (C) and a child (A) with Smith-Magenis Syndrome, who were cared for by their parents in the family home, were deprived of their liberty.  A and C required constant supervision to keep them safe, and their parents locked them in their bedrooms at night.  According to expert testimony in the judgment this was the best way to ensure that A and C were kept safe at night whilst their carers got the sleep they needed to continue to support them at home.

The ruling is an extremely important one, I have not yet written about it here because my own views on it are still evolving and frequently change.  It raises such complex issues around the proper scope and purpose of Article 5, the relationship between families and the state, the very meaning of 'liberty' and the purpose of any safeguards to protect against arbitrary infringements.  Munby LJ sets out procedures to be followed by local authorities if they suspect that a person may be deprived of their liberty in the family home, creating a new aspect of the doctrine of positive obligations under Article 5.  It has to be said the judgment is rather less clear as to what might constitute deprivation of liberty in the family home.  Munby LJ emphasises that restrictions that promote a person's welfare, in the context of a loving family home, are far removed from the paradigm case of deprivation of liberty [150].  The difficulty that some of us have struggled with is how you resolve this with the provisions of Schedule A1 that say restrictions upon liberty, and deprivation of liberty, may only be permitted in a persons' best interests.  I suppose the problem that Lord Justice Munby and the courts more widely would have struggled with had they found otherwise is the extreme political toxicity of saying that parents who are doing their best to support family members with profound disabilities and challenging behaviours are depriving them of their liberty by keeping them safe.  One can only imagine how certain quarters of the press might react to dedicated carers having to seek authorisation from the court to "detain" those they care for, and perhaps with some reason.

In any case, here is the EHRC's submission to this case.  Again, it was drafted by Paul Bowen.  I notice that in finding that the state has positive obligations to protect people from violations of their Article 5 rights by private parties, Munby LJ has drawn heavily from Bowen's submission.

RP v United Kingdom

The EHRC also shared with me their written submission in a case that has yet to be heard before the European Court of Human Rights: RP v UK.  The case is one that has a certain amount of notoriety in the legal world, because it resulted in a Court of Appeal judge, Sir Nicholas Wall (now head of the family courts), heavily criticising the actions of John Hemming MP for his involvement in the case as RP's McKenzie friend.  You can read the somewhat infamous judgment; some of the exchanges reported are quite revealing  regarding the relationship between Hemming and the courts, particularly in the light of the events of the last few weeks.  The case concerned a young woman called RP, whose baby was subject to child protection proceedings.  As a result of a mental capacity assessment, which Hemming and RP herself dispute, RP was found to lack the capacity to conduct litigation in the proceedings and the Official Solicitor (OS) was appointed to conduct her case as a litigation friend of last resort.  The final outcome of the court proceedings was that RP's child was placed for adoption.  However, separate proceedings were brought by RP herself as a litigant in person, assisted by John Hemming as her McKenzie Friend, on the basis that her right to a fair trial under Article 6 was violated.  There is something extraordinary in the fact that an appeal could be brought by a litigant in person, when she was said to lack the mental capacity even to instruct a solicitor.  However, the court felt that there were important matters of principle at stake, so the appeal was allowed.

In thinking about this case it would be very easy to get distracted by a senior judge castigating an elected member of parliament.  It would also be very easy to get distracted by some of the more bizarre claims made by John Hemming reported in the judgment.  However, there are elements of the case that do give some cause for concern.  There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment).  Perhaps it's because I'm more familiar with Court of Protection cases than the family courts, but it did strike me as odd: I would have thought that the role of the OS was to champion RP's rights and her best interests, and it is up to the local authority to make the case on behalf of her child's best interests.  It seems that the EHRC were also concerned about this aspect of the case, as they have decided to intervene in a legal challenge to the judgment at the European Court of Human Rights.

The EHRC's written submission to the Strasbourg Court expresses concern on several grounds.  The submission is drafted by Helen Mountfield from Matrix Chambers; Mountfield was involved in the case YL v Birmingham City Council, concerning whether care homes were 'public authorities' bound by the Human Rights Act.  The EHRC argued that families with parents with  learning disabilities are not offered adequate support to care for their children themselves before the commencement of child protection proceedings, and that this might be in breach of their Article 8 rights.  They cite a range of evidence that parents with learning disabilities are poorly supported in the community.  I have some limited experience of working in a family assessment centre that assessed some parents with learning disabilities for child protection proceedings; I have to say I saw little to refute the EHRC's concerns about the amount of support available in the community to parents with learning disabilities - but they may have been isolated examples.  It would be interesting to see whether the European Court of Human Rights is prepared to extend the positive obligations of the state in this direction, given it would certainly place a significant financial burden on the public authorities who would be in a position to offer that support.

The second grounds for concern raised by the EHRC are regarding the role of the OS himself.  Undoubtedly the OS plays an extremely important role in upholding the rights of people who are unable to conduct litigation; there are many cases I can think of where the OS's intervention has upheld the most fundamental of rights on behalf of people who were unable to do so for themselves.  These include a case where a hospital had actually begun to withdraw treatment from a patient without seeking the Court of Protection's determination first; the OS's intervention meant that he then went on to make some recovery.  The Steven Neary case being fought this week in court is, in no small part, down to the work of the OS.  The OS also acts on behalf of children, and I wonder if this led to some blurring of the boundaries in this instance, where the OS appeared to take the child's best interests into account.  The EHRC express concerns that this was a breach of RP's own Article 6 rights:

...the case they put forward must be focused solely on the needs and wishes of the parent. That is not to say that the litigation friend cannot put forward a case which departs from the case which would be advanced by the learning disabled persons if they were representing themselves. It may be that the Official Solicitor does not consider that case to be in his or her best interests. But the focus should be on that person’s interests, alone. It is not the role of the Official Solicitor or other litigation friend to balance the interests of the parent and the child. If and to the extent the parent is represented by a litigation friend who seeks to present to the court an opinion as to what is in that person’s best interests “balanced” with what is in the child’s welfare, there is a breach of Article 6 and/or Article 8 and/or Article 14 ECHR. The litigation friend’s sole role is to promote the best interests of the person for whom they are appointed. Promoting the child’s interests is the role of the child’s legal representative, and deciding on whether the best interests of the child and the interests of the parent are opposed is the duty of the court.

A third area of concern raised by the EHRC is that there is no mechanism to displace the Official Solicitor:

[22] ...it should be recognised that litigation capacity can fluctuate or alter. Loss of litigation capacity is a very serious a matter. So where, as here, there is a mechanism whereby an official litigation friend can be appointed against the litigant’s will, there should also be a formal mechanism prescribing the circumstances in which, the evidence upon which, and time or means by which, the litigant deemed incapable can apply to have that decision set aside. The absence of such a mechanism constitutes a disproportionate infringement of the right of access to a court protected by Article 6.

[23] Whilst the Commission casts no doubt upon the good faith of the Official Solicitor or any of the experts instructed in the present case, it considers it to be institutionally unsatisfactory for there to be no such formal procedure. Once a person has been declared to lack litigation capacity, under the present system there is no means of his reacquiring it unless the Official Solicitor or the solicitor instructed by him on behalf of the litigant considers that the litigant may have recovered the capacity. There is no procedure for the litigant him or herself to raise the question, or to seek a further expert’s opinion, and no obvious mechanism requiring a review where, as here, the litigant produces an ostensibly plausible report from a Consultant Psychiatrist who expresses the view that she does have capacity. '

To the possibility of litigation capacity fluctuating or altering, we should probably add that opinions on whether a person has litigation capacity may - at the borderline - be a matter of dispute.  In a recent case V v R (2011) the Court of Protection was asked to decided whether V had litigation capacity.  Her mother doubted  that she did, whilst the defendants (perhaps unsurprisingly) felt that V had capacity to run her case against them.  Once it has been determined that a person lacks litigation capacity there seems to be no straightforward mechanism to displace the OS if they are acting on their behalf.  In cases as contentious as child protection proceedings, one can see how this can lead to discord between the parent and their legal team, and a feeling of powerlessness and perception of injustice. This sense of powerlessness could leave vulnerable people inclined to seek less appropriate sources of support.  According to the admissibility decision in Stanev v Bulgaria, the UK may be in the minority of Council of Europe states in having no legal mechanism whereby people deprived of legal capacity can apply directly to the courts for discontinuation of the measure (see paragraph 78).  I understand that the research this claim was based on was undertaken by the ECtHR itself; I have contacted them to ask for a copy of the research report.

Robert Seal v United Kingdom

I am ashamed to say I had not heard of this case before the EHRC shared their submission to the ECtHR with me.  The case concerns a provision of the Mental Health Act 1983, s139, which in requires detained patients to seek the permission of the High Court before bringing any civil case "in respect of any act purporting to be done in pursuance of" the Mental Health Act.  Robert Seal claimed he had been prevented from bringing a case against the police for unlawful detention as a result of the provision meaning that he was out of time.  In Seal v Chief Constable of the South Wales Police [2007] in the House of Lords, Lord Bingham commented:

Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by sections 141 of the 1959 Act and 139 of the 1983 Act to those whose very important and often difficult task it is to care for the mentally ill.

Baroness Hale and Lord Woolf dissented from the decision.  The EHRC's submission was written by David Wolfe at Matrix Chambers; Wolfe has been involved in several important human rights cases including the right to treatment case concerning 'baby Charlotte'.  The Commission argued that s139(2) created a barrier to justice that was not a proportionate interference with the Article 6 rights of detained patients, commenting that it 'treats disabled persons as second class citizens without any justification'.  The ECtHR pronounced its judgment in December 2010, where it found that Seal's Article 6 rights had not been infringed.  The basis for the court's ruling appears to be primarily that Seal did not provide an explanation for why it took him from 1997 until 2003 and "the very eve" of the expiry of the limitation period, to commence proceedings against the  police.  In their view, Seal had been unable to bring his case not as a result of this measure, but the unexplained delay on his part in bringing a claim.  The court did not, therefore, give extensive consideration to whether the measure itself was discriminatory and a potential infringement of the Article 6 rights of detained patients more generally.

The future of strategic litigation by the EHRC

The government is currently consulting on reforms to the Commission.  You can read more about the government's proposals and the EHRC's response to them here.

My wishlist for accurate media reporting of the Steven Neary case

This week the Court of Protection will conduct a judicial inquiry into the lawfulness of the actions of Hillingdon Council between 31 December 2009 and 24 December 2010 concerning the care of Steven Neary.  Unusually for Court of Protection proceedings, the media have sought - and been granted - permission to watch the case.  Even more unusually, they have permission to identify the individuals and the council concerned, and they are expected to report on it subject to whatever restrictions the court imposes.  You can read the decision of Mr Justice Peter Jackson to permit the media to attend and identify the parties here.  Part of the reason the press have been permitted to identify both Steven and his father Mark, is because the case had received considerable public exposure long before it came before the court.  The presence of the media was not opposed by the council, and the judge commented that:

Steven's circumstances are already in the public domain to a considerable extent. If the claims made by Mr Neary and the Official Solicitor are made out, the facts deserve to be known to the public. If they are not made out, it may be right for the record to be corrected.

Why are there no deprivation of liberty safeguards in supported living?

The deprivation of liberty safeguards were drafted in the aftermath of the ‘Bournewood judgment’ (HL v UK), where the ECtHR commented on the “dearth” of regulation and safeguards for the detention of people who lacked mental capacity, in comparison with those detained under the Mental Health Act.  The safeguards are set out in Schedule A1 of the Mental Capacity Act 2005 (MCA), and apply to detention in care homes and hospitals. The DoLS provide a set of administrative and legal procedures to ensure that anyone deprived of their liberty has access to safeguards to allow them to challenge the lawfulness of their detention, and ensure restrictions are proportionate and necessary.  A question that has bothered me since researching the safeguards is why they only apply in care homes and hospitals when increasingly care in the UK is provided through alternative structures like supported living (usually for adults with learning disabilities) or extra-care housing (usually for older adults).

Whose copyright is it anyway?

Apologies for radio silence, I've been away on holiday and have a few longer posts brewing for later.  In the meantime, I received a response to a Freedom of Information request I made of Her Majesty's Courts Service, which I'll share.  I wrote to HMCS trying to get hold of some data which could cast light on a) what proportion of court judgements make their way into the public domain via Bailii, and b) how much HMCS spends each year on third party transcription services.  Unfortunately, HMCS weren't able to help me with this part of my request as data is not collected on it and they'd have to look at each case individually.  Of some interest, however, is some information they kindly supplied me on a discretionary basis, in response to my querying who owned the copyright of judgments.  I'll quote their response verbatim:

The position regarding copyright in court judgments is not, however, entirely clear. The Office of Public Sector Information (OPSI), is part of the National Archives and manage all copyrights owned by the Crown on Her Majesty’s behalf. Copyright material which is produced by employees of the Crown in the course of their duties and therefore most material originated by ministers and civil servants is protected by Crown copyright. There is no definitive view on whether court judgments are Crown copyright. Although OPSI, following advice from the Treasury Solicitor, take the view that copyright in court judgments rests with the Crown, in that judges are officers or servants of the Crown and their judgments are delivered in the course of their duties, this is not a universally held view and it can be argued that judges act independently of the Crown and that copyright in court judgments rest with individual judges. OPSI’s position is that insofar as judgments are Crown copyright it is content for them to be re-used free of charge and without requiring prior clearance providing the source is acknowledged.

Consideration would need to be given to the rights of reporters and journalists as published editions of judgments attract copyright protection in the typographical arrangement of their published editions although not in the judgment itself. Reporters may also seek copyright protection for additional content such as head notes and other commentary.

So it seems that the situation is not even so simple as considerations of transcription and  typographical arrangement would suggest; the copyright issues also hinge on the constitutional status of the judiciary itself.

In other news, in a major breakthrough for supporters of Open Justice, Supreme Court cases are to be streamed live online.  You can watch them here on Sky's website, and you can read the press release here.  It's a shame in a way there isn't the flexibility of BBC iPlayer - it seems as if you can only watch them live, but it's a great start.  I'd be intrigued to know whether the BBC were approached to provide the service... [Edit: have just written to them asking, will update when they respond.]

And the Court of Protection has published the judgment following on from the so-called 'quaero-injunction'.  In W v M (2011) Baker J casts light on the reasons he issued an injunction against journalists approaching 65 people in a highly sensitive case.  It's not a little disappointing that most of the media clamour around this judgment has focussed on his including Twitter and Facebook in its injunction, in addition to traditional media, and they have neglected to report several other interesting features of the judgment.  Few outlets (Martin Beckford at the Telegraph being a welcome exception to the rule) have noted that the 65-person injunction on doorstepping has shrunk to including only the family.  And perhaps unsurprisingly, few have reported the extreme distress and anxiety potential 'doorstepping' by journalists posed the family.  This engaged not only their own Article 8 'right to private life', but their Article 6 rights to a fair trial as well since the potential press attention had led them to considering withdrawing their case in court.  Their fear of media harassment was such that it had even threatened to discourage them from visiting their relation, in case the press were waiting for them.

It's not really part of the story the mainstream media want to tell about the 'secretive' court that their methods of investigation were a source of considerable distress to some families, which could act as a deterrent against them seeking justice.  The Times Newspapers Ltd, who were represented at the hearing, accepted the evidence of the families and agreed to the reporting and 'doorstepping' restrictions.  Other media outlets, who subsequently complained about the injunction and accused the court of 'secrecy', did not send their own legal representatives to fight their corner.  I presume that though they have seen the injunction, they have not been party to the witness statements by the family that the Times' lawyers saw.  In my view, for what it's worth, compared with the highly unpleasant image of the press doorstepping a very vulnerable woman in her care home, potentially following her about her business outside the home, photographing her and approaching her distressed family and those who care for her, it is hard to agree with the opinion expressed by John Hemming that these injunctions are 'evil'.

Does Article 5 create positive obligations to provide community based care?

An article in Community Care this week commented that a cap on charges for non-residential care, introduced last month in Wales, may create ‘a perverse incentive for authorities to place more people in residential care, as they could then recoup more money in charges.’  For reasons of cost, councils may choose to meet people’s eligible needs through residential care placements, rather than supporting them through community-based services.  This is a thorny area.  There is a general preference at policy level - and often (but not always) for service users - for people to be supported in the community rather than having to leave their homes to go into residential care.  But the reality is that community based solutions can cost more, particularly as people’s needs increase.  Working in care, I have known people whose needs increased to a point where local authorities were no longer prepared to support them in their own homes because it became markedly cheaper to meet their eligible care needs in a care home.  Sometimes this was despite their expressed preference to remain where they were.  Are there any legal reasons arising out of human rights law, that might lend weight to preferences for community based care plans?

Is publicity always the soul of justice?

Yesterday in parliament an MP used his parliamentary privilege to identify a woman who was threatened with prison for naming the council at the heart of a child protection row she was involved in.  She named her council during a meeting of the All Party Parliamentary Group on Family Law and the Court of Protection discussing Transparency.    The MP was silenced by the Speaker before he had a chance to go any further; Bercow wanted to discuss further – in private – whether the case was in fact sub judice.  No doubt like many others who followed the parliamentary exchange, I sought out information on the identified individual online.  As others have commented, I found no sources of information that gave a particularly well reasoned or calm appraisal of events – which is not to say that what’s written isn’t true.  However what is clear is that allegations made by the mother are extremely serious, both with respect to named individuals and the public authorities involved in the case.  The allegations relate to extremely sensitive and personal information regarding her child, who is also named online.  Even if we assume that the allegations have some foundation in fact, however, I remain unconvinced that this exercise in ‘transparency’ will assist the children at the heart of this case.

Over the last few weeks there has been considerable media coverage of ‘gagging orders’: super-injunctions, hyper-injunctions and quaero-injunctions.  The general consensus in the press, perhaps unsurprisingly, is that they are a matter of grave concern.  Bundled up amongst the celebrity scandals and suppression of matters which – on the surface at least – seem to be in the public interest to know about (Trafigura dumping toxic waste on the Côte d'Ivoire, or paint in ship’s water containers breaking down into toxic chemicals), are several cases relating to the Family Courts and the Court of Protection.  In what I have read, the arguments against ‘gagging orders’ fall roughly into two camps:

1. Gagging orders violate the right to freedom of expression (Article 10 ECHR) of a) the media themselves (e.g. this article), and b) the individuals at the heart of the cases (e.g. this article). 
2. Gagging orders go against the principles of Open Justice, and without the media’s presence miscarriages of justice may go unchallenged – and may even be more likely (e.g. this article, and this one) 

I don’t want to wade into the debate about the Article 10 rights of the media, or of women to ‘kiss and tell’, but I do want to consider in a bit more detail the second argument, succinctly put in these famous passages from Jeremy Bentham:

‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’

‘In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.’

The best argument I have read for greater openness in the Court of Protection and family courts is by the Guardian’s director of editorial legal services Gill Phillips (transcript and audio are available here; I particularly recommend the audio recording).  Coincidentally, Phillips’ speech was delivered in the same meeting of the All Party Parliamentary Group where the council in the child protection row mentioned above was identified.  Following Phillips’ speech, Cafcass head Anthony Douglas gave a talk which began ‘Transparency has disappointingly become more about the rights of adults than the rights of children’.  The text of Douglas’ speech is also worth reading for a counterbalancing point of view, but he was unable to deliver it in full, being heckled off stage by angry families.  One woman can be heard to say ‘you're so deluded, you have no clue how much the people are suffering in this country’, and another ‘people need to speak and express themselves’.  Douglas hastily wound up his speech saying 'Transparency is about transparency of understanding the situation that the child is going through... not about opening up a court process.'  I would differ from him on that latter point; I believe there are things that could be done to open up the court process without infringing the rights of the child.  In any case, tensions evidently ran high in that meeting.

Phillips began by reiterating that it is a ‘fundamental principle of common law that justice is conducted and judgments are given in public’.  Article 6 permits that the press and public can be excluded from the court:

...in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

It is, as I have discussed previously, an unqualified feature of Article 6 (the right to a fair trial) that judgment must be ‘pronounced publicly’ – but in the case Pretto v Italy (1983) the ECtHR found that this criterion was satisfied by depositing a copy of the judgment in a registry open to the public – it didn’t have to be read in open court.  I have argued in several posts on Open Justice that the Court of Protection, and indeed the courts service as a whole, need to ensure that all judgments that are not read aloud in open court are freely accessible to the public in the form of written judgments.  If necessary, as often will be the case in the Court of Protection and family courts, those judgments should be redacted to protect the identities of children or other protected parties to the case.  My interest in this evidently comes from my role as a legal researcher, but I am aware that legal practitioners, practitioners in health and social care (like CB at Fighting Monsters), and users of the courts, are also keen for greater access to case law to improve their understanding and knowledge.  The courts may protest that they issue any judgments that make legal precedent; from the perspective of informing and improving professional practice, this is insufficient.

Publication of written judgments could go some way towards putting greater external scrutiny on the courts, in the spirit of Bentham’s work.  Not only through greater scrutiny of the reasoning of judges, but on the public authorities involved in the cases themselves. I see no reason why public authorities should not be routinely identified in Court of Protection and family court cases (although I am open to argument if anyone would like to suggest any).  In two cases that I am aware of the Court of Protection has allowed the local authority to be identified (G v E, Manchester (2010); Hillingdon v Neary (2011)).  But the court appears to wait upon a request from the press to identify the public authorities in the case, and there are cases where public authorities have been criticised for – at best – poor practice where they have not been identified (in this case, for instance).  Unless public authorities are identified, it is very difficult to see whether there are repeat offenders for certain kinds of poor practice – or even public authorities who show consistently good practice, for instance by bringing matters to the attention of the courts when they should (see this post for a striking example of this).  As Phillips argues, identifying public authorities along with details of cases can also help expose regional disparities in interpretations of the law itself (the example she uses is major variations between local authority interpretations of ‘emotional abuse’).

Phillips also gives a very compelling argument for identification of expert witnesses in the family courts, which is worth quoting in full:

...decisions more often than not will involve courts relying on expert evidence. If that evidence is only heard behind closed doors who can scrutinize it? who can check the science is sound, challenge it if need be? I read last week about the Law Commissions proposals for a new "reliability" test to determine the admissibility of expert evidence in criminal cases to avoid the possibility of miscarriages of justice... The law commission said that the current judicial approach to the admissibility of expert evidence in England and Wales is "laissez-faire"...The Law Commission gave examples of fraudulent experts: Godwin Onubu, a bogus doctor, Barian Baluchi, a bogus psychiatrist, Gene Morrison a bogus psychologist. At least criminal trials take place in open and are reportable. Heaven only knows what level of scrutiny and acceptance is in the family courts!

The debate about identification of expert witnesses in the family courts is an old one.  There are those who argue that the motivation to identify experts is based on a fallacy that expert witnesses are failing the justice system, others might respond that such absolute faith in unscrutinised expert opinion is naïve at best.  Phillips also makes a convincing case that since expert witnesses in the family courts are in the pay of the public purse, we should at least know who they are and when they are being used.

Since identification of public authorities and expert witnesses could also be done through publication of redacted written judgments, would any additional purpose be served by the media being in court?  I wrote previously that it was my view that the press should be allowed to attend the court only with the full and free agreement of the families involved.  This is because for some families, especially those who are litigants in person, the presence of the media could have an inhibiting effect on the stories they are able to tell, and may increase the stress they are already under such that they are less able to present their case.  For other families though, like the Neary family and no doubt like the lady at the heart of this most recent row, the presence of the press may be explicitly desired by them.  For families who feel themselves to have been badly served by public authorities, the media at least appear to serve as an additional safeguard to ensure justice is done and wrongdoing exposed.

The difficulty is that in what coverage I have seen of the complex cases the Court of Protection deal with, the media haven’t particularly covered themselves in glory (I know less about the family courts, so will refrain from commenting here).  From the perspective of accuracy, the vast majority of articles on Court of Protection cases are riddled with errors of fact and law, which go on to (badly) inform what analysis they do bring (including the Guardian’s own reporting).  This recent article from the Daily Mail serves as a case in point; entitled How can it be right? the author makes the familiar argument that the Court of Protection judges deal with some of the most sensitive issues for the most vulnerable in society, and should not be free of external scrutiny in doing so.  To illustrate the kinds of work the Court of Protection does she describes some recent cases where the press have been allowed in, but in doing so betrays a lack of understanding of the context and the issues at stake.  To give a few examples:

• ‘Under the laws [sic] of the Mental Capacity Act of 2005, [the Court of Protection] makes decisions for people deemed to lack the intelligence to do so for themselves.’
• I can see why they have used the word 'intelligence' rather than 'mental capacity', but it carries significantly different connotations. The court, for instance, would hear cases about people in ‘minimally conscious’ states, or with mental health problems, whose intelligence is not in question. Meanwhile, a person with very low intelligence is likely to have mental capacity in respect of some decisions.
• ‘judges can compel these vulnerable souls to undergo surgery, take part in medical experiments, use contraception or have abortions. They can decide if a life-support system is switched off, where a person lives or with whom.’
• What the author neglects to mention here is what a significant improvement this situation is on what came before. Prior to the Mental Capacity Act 2005 there was an enormous legal lacuna around how such decisions were made, and many were made by medical or other professionals, free of external scrutiny, and without recourse to the court at all. In addition to the safeguard of the court, people in these situations should also be referred to an Independent Mental Capacity Advocate, who offers an additional source of external scrutiny.
• 'the CoP judges can authorise what are called Deprivation of Liberty Safeguards.’
• This is just an error in fact. The judges can authorise deprivation of liberty, but the whole point of the safeguards is that supervisory bodies can authorise deprivation of liberty as well without recourse to a judge. In my view we should be less concerned about deprivation of liberty authorised by the courts than the – quite possibly thousands – of cases of deprivation of liberty that are actually occurring in hospitals and care settings but which are unauthorised by the courts or any other public body. 
• ‘[Hillingdon council, in the Neary case] applied successfully to the Court of Protection for a Deprivation of Liberty Safeguard or DOLS order.’ And ‘Mark Neary hired a lawyer and decided to take on Hillingdon Council as well as the Court of Protection which issued the restraining order on Steven.’
• This takes factual inaccuracy to the level of fiction. Hillingdon council authorised Steven Neary’s deprivation of liberty themselves using the safeguards, without resort to a court at all. The court in fact terminated the deprivation of liberty and sent Steven home! 
• ‘Earlier this year, a 41-year-old man living at a council home, and in a relationship with another man, which he said made him happy, was barred by the Court of Protection from ever having sex with any human being again... He will be followed everywhere for the rest of his life by an orderly at the home, unless he is alone in his bedroom.’
• Again, this is fiction. The order in this case was an interim order, not ‘for the rest of his life’, and the judge in fact directed that AB should receive sex education so that he might acquire the mental capacity to engage in sexual relations. 

Even in the context of almost universally inaccurate reporting on Court of Protection cases (the Telegraph, generally, is a welcome exception to that rule)[Edit: I feel in the light of this case I should probably retract that and say instead that Martin Beckford's reporting is usually fairly accurate], this is a particularly bad article.  But it does serve my point.  What benefit is this kind of scrutiny supposed to bring to our justice system?  The judgments in the cases mentioned above are in fact in the public domain, and even then they are reported incorrectly.  What the media often does do is champion the rights of families, by which I mean to say the rights of those family members who are able to express their views – not necessarily always the rights of the protected parties at the heart of the cases.  By all means the media should be free to disagree with the decisions of judges, the evidence of experts, to castigate any unlawful actions by public authorities, but ultimately the courts and the lawmakers will only be responsive to the concerns of the media if they have something well-informed and insightful to say on the matter.  I’m not saying this isn’t possible, just that I’ve seen little evidence that the media are yet ready to take up that mantle in the Court of Protection at least.

And what about identifying the individuals involved, as happened in parliament yesterday?  The Court of Protection does not operate a blanket ban on this, notably identifying Derek Paravicini in this case, and of course the Neary case.  The family court may exercise its discretion in permitting the media to watch the case, but they are still subject to statutory restrictions on identifying children from s97 Children Act 1989 and s12 Administration of Justice Act 1960.  Further restrictions may come into force with the Children, Schools and Families Act 2010.  Phillips regards this as a real obstacle to media coverage of important family law cases:

As long as these two provisions remain in place, the media are going to be reluctant to engage with the family court. The fact is, like it or not, names are needed to make stories work. They bring a case to life and give it real meaning... [T]he reality is that the combination of S12 AJA and S 97 Children‘s Act means there is little possibility of the media being able to report anything that they feel may be of interest to their readers. The reality is that despite the increased access, little has changed and there is still little being reported about family cases.

I suppose my feeling on this really is ‘well tough’, if the issues are that important it shouldn’t be an insurmountable obstacle, although this is no doubt coloured by my not being a journalist.  I really can’t understand why the press cannot report on these cases without naming names.  For weeks after the death of Baby Peter, he was known as ‘Baby P’, but that didn’t prevent extensive media coverage of the case.  I don't doubt, though, that experienced media professionals like Phillips know better - but I would like to think that if important matters of principle are at stake (as there are in the cases reported recently, which remained anonymous), the press would pick up on them anyway.

My concern is that in identifying the children at the heart of these cases – particularly child protection cases and cases where there is a dispute over family contact - there is a real risk of harm being done by the media coverage itself.  Often, but not always, similar principles may apply to adults in the Court of Protection, particularly in matters relating to adult safeguarding.  We respect the right of rape victims to anonymity, why not children who have suffered abuse or acrimonious family disputes over contact?  Why should all the professionals in their lives, all the parents in the playground, and their future friends and colleagues be appraised of some of the most personal and painful details of children’s lives through publication of their name?  Does it help children if parents are able to play out their breakup and make allegations in the press?  Expose poor judicial decision making, poor expert evidence, poor practice by local authorities by all means – but why should we expose children and vulnerable parties as well if this will cause them harm?

This will, inevitably, have an impact of the Article 10 rights of families.  It is impossible to identify the family members without the child or adult relation becoming identifiable by extension.  I really do understand that when families feel failed by the justice system they want to speak out.  Put purely legally, Article 10 rights are qualified rights, and the right of the child to privacy of their current – and future – identities must be balanced against them.  Beyond legal rights though, I support the moral case underpinning this.  Families may respond that they are not speaking out for themselves, but in order to expose injustice and get their children home.  Unfortunately, I’m not convinced as a strategy this will be particularly effective; if anything going to the press is likely to antagonise the courts.  If families have signed an undertaking of non-disclosure to MPs or the press, going back on that order is likely to make them appear less trustworthy on matters relating to their child's welfare.*  And yes, it is a huge pity if families are prohibited (or, more likely, advised against) speaking to their MP - but if it is suspected that that MP is likely to trample over their children's rights to privacy through use of parliamentary privilege I'm less convinced it is the certain travesty of justice it at first sight appears.  In any case, ultimately it’s not the Daily Mail who decides whether their children come home, any more than they decide whether ‘Elisa’s’ daughter gets sterilised, whether ‘Alan’ has sex again, or who even got Steven Neary home.  It’s the courts, whatever view you hold of them.

There is a tension then.  Overall the interests of justice may be served by greater press attention to matters in the family courts and the Court of Protection.  The courts could help themselves by being more forthcoming with the reasons for protecting identities or reporting restrictions, or issuing seeming-draconian orders like banning the media from approaching witnesses.  They could also take positive steps to engage with transparency themselves, by publishing more (anonymised) judgments.  Transparency may also be served by naming the public authorities and expert witnesses involved in cases, whilst protecting – as far as possible – the identities of children and other protected parties.  In some cases a press presence in the courtroom may directly further the individual or overall cause of justice, for instance by exposing faulty expert evidence, or by building up pressure to reform a particular area of law a judge has relied upon.  But the media say they want names, and in naming individuals involved in many cases we may do them no justice at all.  How principled is their stance towards Open Justice then, really, if it is contingent on identifying vulnerable individuals?  It seems to me that the media may have as far to go on this as the courts.

*It's unclear, in any case, how far these are legal undertakings and not elective agreements.  See this post by Carl Gardner, and the comments underneath, for more discussion.  It does seem that this case must have some degree of legal force behind it, if the mother was threatened with prison for identifying the council in a public meeting.

More reading
@CarlGardner raises some important questions about whether  this use of parliamentary privilege was appropriate, here
CB at Fighting Monsters discusses the difficulty knowing the truth behind stories in the press, here.

[Edit: My attention was drawn today to an excellent paper by Lord Justice Munby on transparency in the Family Courts.  He puts the issues much better than I have, and clearly his view carries considerably more weight!  The paper I am referring to is:

Lord Justice Munby, 'Lost opportunities: law reform and transparency in the family courts' [2010] Child and Family Law Quarterly 273

But it's behind a paywall.  However Jonathan drew my attention to a lecture that covers roughly the same ground, available here.

It's wonderful that a senior judge has expressed concerns around Open Justice in the family courts.  I'm not sure that all share Munby LJ's passion for transparency though... 04/05/2011]