Reading Borough Council v P (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Owens |
| Judgment Date | 04 May 2023 |
| Neutral Citation | [2023] EWCOP 16 |
| Court | Court of Protection |
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[2023] EWCOP 16
HER HONOUR JUDGE Owens
IN THE COURT OF PROTECTION SITTING AT OXFORD
Representation:
For the Applicant: Mr Boukraa, Counsel
For P, First Respondent: Ms Kirkbride, Counsel
SS, Second Respondent: Litigant in Person
HS, Third Respondent: Litigant in Person
KS, Fourth Respondent: Litigant in Person
This judgment is being handed down [in private] on 4 th May 2023. It consists of 34 pages and has been signed and dated by the Judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of P and the members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.
This is the second set of proceedings concerning P who is an 87-year-old woman. She was born in Iran and moved to the UK in 2002 to live with her family. She has two sons, HS and SS, and one daughter, KS. P suffers from Alzheimer's dementia and a number of other physical health conditions including double incontinence. She has a history of falls and injuries and requires support in all aspects of her care needs, with the assistance of two members of staff for any transfers. Although she is reported to have spoken some English in the past, having grown up speaking Farsi, as a result of her dementia it appears that she has lost the ability to communicate in English.
P lived with her daughter, KS, from 2017 to 2020. In August 2020 she was admitted to hospital. Having undergone several operations to her hip, P developed an infection and contracted Covid-19. Agreement could not be reached about where she should live following discharge from hospital. In January 2021, P was transferred to a less acute ward at a different hospital. On 3 rd January 2021, following agreement within her family and with the Local Authority, she moved to a nursing home where she was deprived of her liberty.
In light of disputes between P's children about her care and residence, in March 2021 the Local Authority commenced welfare proceedings. Upon the parties reaching agreement that it was in P's best interests to continue to live and be cared for at her then nursing home, I approved an order on 28 th May 2021 permitting withdrawal of the proceedings.
In July 2021, however, that nursing home served notice because of allegations concerning KS's behaviour which she denied. Further welfare proceedings began on 14 th July 2021. After extensive enquiries, P's current care home was identified and, by consent, on 15 th September 2021 P moved there. Disputes remained about whether it was in P's best interests to remain there, though, so the matter remained before the Court.
In May 2022, I concluded those proceedings determining that it was in P's best interests for her to remain in a residential care setting and to continue to receive a package of care and support which by that point had been in place for some time. All parties except KS had agreed with the expert evidence showing that P's best interests were better met by her remaining in her then residential placement rather than going home or having a trial placement with a family member. In my judgment, I noted “the relationship between KS and the [previous] care home broke down with allegations being made both ways…As a result, conditions were attached to contact arrangements between KS and P to preserve P's placement at the previous care home whilst a replacement care home could be found” (G17/362). I also noted that “it was not in dispute that a previous attempt to provide P with a package of professional support at KS's flat broke down within a week, with the agency alleging that this was because of KS's behaviour and KS making allegations about the care agency” (G17/362). I also found that “more often than not there is an extremely challenging and difficult relationship between KS and professionals providing care for P with allegations being made of inappropriate behaviour on both sides. Frequently behaviour contracts have had to be put in place to manage this” (G18/364).
In the normal course of events those last proceedings should have resolved matters for P, but unfortunately for P further allegations about KS's conduct when visiting P or communicating with the current care home (which had been a feature of the previous proceedings as noted) arose. These led to the current care home saying that they could not continue with the placement and thus led to these further proceedings being issued in November 2022.
KS does not accept that she has behaved inappropriately in the way alleged by care home staff and the Local Authority, or that her behaviour poses any risk of harm to P, including any risk of harm arising from P having to move placement as a result. KS also did not accept that she should have restrictions placed on her contact with P, though she did agree to provide the court with undertakings about this in the relatively short-term and pending the court considering the issues. Very unusually, because of the complete absence of acceptance by KS that she had done anything wrong or should moderate her behaviour in any way to protect P from harm, the applicant applied for there to be a separate fact-finding hearing to determine the allegations about KS's behaviour and to therefore enable best interests decisions about contact and placement for P to be determined by reference to what the court did or did not find proved about the allegations. KS opposed this course of action, though the other parties supported it. Direct contact between P and KS has been suspended in light of the allegations about KS's behaviour, though indirect video contact has been established twice a week between P and KS. P's placement is under threat as a result of the allegations and a search to find a new care home has commenced. Since KS did not accept any of the allegations or any suggestion that she may need to change her behaviour in future, it has thus far not been possible to persuade the current care home to agree that P could continue to stay there or determine how contact between P and KS could safely be managed. Applying the principles in Re AG [2015] EWCOP 78 (which itself endorsed the approach in the London Borough of Newham v BS and Anor [2003] EWHC 1909), I therefore determined that a separate fact-finding hearing was necessary in this case, and this has been the listed fact-finding hearing.
During this fact-finding hearing, I have read the Bundle and heard evidence from the following witnesses: A, B, C, D, E, F, G, H and KS.
The hearing has proceeded wholly remotely, with the consent of all concerned, given the geography of the various participants in relation to my court base, a previously expressed preference on the part of KS to avoid personal attendance at court, and given that the previous proceedings were conducted wholly remotely without difficulty. It is true that the connection from the care home set up by the Local Authority for the care home witnesses was not without occasional issue for this hearing. A combination of this, witnesses having to articulate their evidence when English was not their first language (though I was not asked to direct that interpreters be provided and it was clear that they understood English and could communicate in English), and some witnesses not realising at first that they needed to sit a bit closer to the microphone did mean that there were some points when their oral evidence had to be repeated. There were a couple of occasions when the sound quality dropped so I directed that the laptop at the care home should disconnect and reconnect to secure a better-quality wifi connection, and this also worked to improve sound quality. At times I checked that everyone had heard something that had been repeated too, reading out my note of their evidence to check that was what the witness had said and everyone else had heard. It seemed that all of us had been able to hear what was said even when answers were repeated, and nobody indicated otherwise until I came to hear closing arguments at which point KS complained that she had not been able to hear some of the evidence. She had not raised any issue with this previously, despite having clearly felt able to raise other questions and issues throughout the hearing. She was also vague as to which, if any, parts of evidence she thought she had not been able to hear and certainly seemed to have been able to hear what was said so as to be able to challenge the various witnesses about it when she questioned them, and it did not affect her ability to make her case that all the witnesses were, in essence, lying.
Mr Boukraa for the Local Authority and Ms Kirkbride for the OS produced comprehensive and helpful position statements, which included reference to the relevant law. It is, of course, for the Local Authority to adduce sufficient evidence to seek to prove the allegations. The allegations are broadly disputed by KS, and I will return to the details of her responses when I consider each allegation in turn....
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