The Hillingdon “DOL” House Part 2
By Gildas The Monk
And so where were we…?
Oh yes! It is October 2010. Hillingdon Council have now detained the vulnerable Steven Neary, against his wishes and the wishes of his father Mark, for nearly 10 months. In view of the rather irritating refusal of his father to surrender the future of his son to the social workers who did not understand him, they have finally decided to refer the matter to the Court of Protection. They have geared up for battle, gathered information which justifies their position, and launched a heavy pre-emptive strike seeking wide ranging “declaratory relief” to the effect that in essence they (social services/the Council) were best placed to manage Steven’s future, and seeking to place him in an institution rather than in the care of his father, where he and his father wished him to be.
Reading the judgment of Mr Justice Jackson in the final substantive hearing I gain the clear impression that Hillingdon social services and their legal team thought they were on “a winner” here. After all, they had the resources. They may have assumed Mark had none and could not have the will power to fight to keep his son. They must have thought they actually had a case. The date for the hearing was set for early December.
They had drastically miscalculated on a number of respects. There is a whiff of the first respect in the subsequent judgment of Mr Justice Jackson at paragraph 114. They had been ignoring the fundamental issue of what Steven’s condition actually was. I quote:
“….. On 16 August, the psychologist reported, highlighting the lack of independent advocacy for Steven or Mr Neary, and commenting that Steven’s autistic spectrum disorder had received minimal attention at the support unit. It is deplorable, and a clear sign of the adversarial approach being taken by Hillingdon, that this report was deliberately withheld from Mr Neary for at least six weeks.”
Next, one of the procedures under the Mental Capacity Act 2005 is that a person subject to a “DoL” order should have an independent voice to speak on their behalf, a Independent Mental Capacity Advisor or “IMCA”. In fact the IMCA should have been appointed months before. This had not happened. When it did, for once “The System” worked. Whoever the IMCA was, she did “the business”. This again from the later judgment:
“123. On 18 November, the IMCA delivered her report. It is an impressive document. For the first time, professional support was given to Mr Neary’s arguments. The previous best interests assessments are subjected to analysis. The IMCA’s conclusion is that Hillingdon was potentially not acting in Steven’s best interests by refusing his father’s request to have his son live with him at home. The fact that this is the most important relationship in Steven’s life was noted. No evidence had been presented to show that the care he had given to Steven over the years was no longer appropriate. A return home, even as a trial period, should be considered. Further depriving Steven of his liberty might lead to emotional harm. Steven’s wish to return home was rational and understandable and Mr Neary had demonstrated in a number of ways his willingness to work positively with professionals involved in providing care for his son. [Emphases added]
124. This report pointed the way towards a different outcome for Steven…
125. Nevertheless, on 19 November, the fourth standard authorisation was issued, on this occasion for five months, for some reason…”
The astute reader may note that last seemingly throw away line “for some reason” in the passage from the Judge. High Court Judges rarely make “throw away” remarks. It means “without thought” and “without any good reason at all.”
Next, Mark was given “legal aid” for a solicitor, and even more critically Steven was given legal representation by the Official Solicitor. Now what I think happened here was important. Once again “The System” was actually working. The Official Solicitor is one of the government’s official law office departments. Someone was on the ball, and Counsel was appointed in the form of a highly able and experienced barrister Ms Aswini Weeratne, of Doughty Street Chambers.
I doff my hat to Ms Weereratne, who plainly knows her stuff.
Finally Hillingdon and its legal team seem to have completely misunderstood the forum they were entering into. As I blogged previously, few things grab the attention of a Judge of the Chancery or Family Division more than the liberty of the individual and the protection of children and the mentally infirm. It used to be part and parcel of what was called rights of Habeas Corpus and always gets the Judges as perky as a stoat in heat.
Surprisingly there is a radical and string “libertarian” streak amongst these Judges who see themselves as the guardians of the liberty of the individual against arbitrary power of the state.
And that is what happened. When the Council walked into Court in December 2010 what they got was quite unexpected. What they got was the icy cold anger of Mr Justice Mostyn.
A formidable mind and a highly experienced High Court Judge of the Family Division, he had instantly appreciated that Steven wanted to go home, his father wanted to have him home, that they had not considered what Steven’s needs and wishes were at all, and that legally that should have been the foremost consideration. Neither had they paid any great attention to the fact that he father Mark had done a fantastic job looking after him. And that home was the best place for him.
I have been in a court like that. Instead of the normal genteel civility of the court, you get a judge who has read the papers from top to toe, steams in looking vengeful, and the atmosphere changes. There can be a real sense of intellectual violence and indeed outrage and anger in the air. I saw a Judge who is now one of our most senior Law Lords, a brilliant, urbane and charming man, “go off” on one of those once when he thought the interests of a child had been overlooked and messed about with, and it was quite a sight.
I am told by Steven’s father that this was quite a short hearing. I can imagine it was. In the sort “what the hell do you think you have been doing” sort of way. As they say in the military: Short interview, without the coffee.
Steven was rightly released from detention and allowed home for Christmas, where he belonged, while the proceedings continued. The decision was formally a temporary one. In the February of 2011 it was made permanent. But that would not be an end of the matter. This case was not going to be allowed to go away just like that. A full hearing was ordered to rule on the lawfulness of Hillingdon’s actions in Spring 2011. There was a public interest in making findings about the matter. So much so that in February 2011 Mr Justice Jackson allowed an application on behalf of the Independent, the Times, The BBC and the Press Association and others to attend the forthcoming hearing and subject only to limited restrictions report what occurred. In Court of Protection cases that is almost unheard of.
A full hearing in semi open court was fixed for May 2011. Even then the Hillingdon machine seems to have miscalculated how to behave. This from paragraph 155 of the subsequent judgment:
“On 20 May 2011, the eve of the hearing, Hillingdon circulated a three page media briefing note to most of the national media. The document was designed to counteract adverse publicity that Hillingdon has received, and against which it had not attempted to defend itself. Nonetheless, it is a sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour. I learned about the document by chance on the last day of the hearing, expressed dismay, and asked for an explanation. I am told that it was authorised by the Director of Social Care, the Head of Corporate Communications and the Borough Solicitor. It is now accepted “in hindsight” that an error of judgment was made in issuing the briefing note. That is indeed so, though again hindsight has nothing do with it. In addition, Hillingdon has unreservedly apologised to the court. That courtesy is appreciated, although an apology for the document is in truth not owed to the court but to Steven and his father…..”
That is quite moderate language written after the event. In fact the Judge went ballistic at the time.
The essence of the judgment was two fold. First, the initial period of detention against Steven and his father’s wishes from early January to April 2010 was without any veneer of lawful authority. In laymen’s terms it was tantamount to “false imprisonment”. Thereafter detention was purportedly justified under the statutory DOL power. But Hillingdon had never operated that power properly by taking into account the relevant factors at all. This again from the final judgment:
“Hillingdon approached matters without any proper regard to the principle set out in the previous paragraph. Nowhere in their very full records of Steven’s year in care is there any mention of the supposition that he should be at home, other things being equal, or the disadvantages to him of living away from his family, still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere. No acknowledgement ever appears of the unique bond between Steven and his father, or of the priceless importance to a dependent person of the personal element in care by a parent rather than a stranger, however committed. No attempt was made at the outset to carry out a genuinely balanced best interests assessment, nor was one attempted subsequently. The first best interests assessment that deserves the name is the IMCA report of 18 November 2010…”
Hillingdon had not operated the statutory criteria effectively or in some cases at all. One case meeting supposedly held to consider relevant matters was described by the judge as “window dressing” (paragraph 106). They had delayed in taking important steps and safeguards. They had not held back key information.
The net result was the Judge held that pretty much the entire period of detention infringed his right to family life under Article 8 of the European Convention on Human Rights and his right to liberty under Article 5.
Just after Christmas last year, on 29th December 2011 the Judge ruled on the question of costs. The default position in Court of Protection cases is that there are no adverse orders about costs. In this case the Official Solicitor took a different view. To quote from the judgment on this issue:
“On behalf of Steven, the Official Solicitor relies on the illegality of Hillingdon’s actions, its disorganised decision-making, the lack of proper assessment of Steven’s best interests, its uncooperative attitude towards Mr Mark Neary, its delay in referring the matter to the court (thereby increasing costs), and its attempt to defend its actions to the end, both in court and in the media….”
With which the Judge agreed. He made a significant award of costs against Hillingdon. He could have gone further than he did. There are technical distinctions between awards on what are called the “standard” and “indemnity” bases, and the Judge opted for the less stringent one. In fact there is only one reason why he did so, and why if you read the full judgment you can see that he pulled back from a completely full on judicial bollocking in the main case. He recognised that in the future social services will still have to support Steven’s care, and he did not want to cause such resentment in that department at its utter humiliation that it would prejudice their future behaviour.
Judges can be very clever….
The case is still not quite over yet. There is the little matter of damages. There will still be a further hearing to decide in what compensation is due to Steven. This has been adjourned twice as I understand it. And Hillingdon continue display a side which might best be described as either insensitive or just cruel. Mark still needs the occasional respite, which means Hillingdon taking Steven back into short term residential care. Hillingdon propose to do this by suggesting he stays at the same Orwellian sounding “positive behaviour unit” where he was held against his will for nearly a year. Even mention of this place makes Steven extremely upset, as is quite understandable.
But watch out Hillingdon, we have our eyes on you….
To be continued…