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The Secret Court v Grannies

This year my twitter feed has mostly been lighting up with the shocking news “The most sinister Court in Britain strikes again” – “Fury as Secret Court Sentences 72-year-old to three months for contempt” – “you have no idea of the corruption and fraud that takes place in the Court of Protection!” – “Secretive uk Court of Protection jails grandmother 4 hugging her granddaughter”.

Well, it all sounds very dramatic. Christopher Booker called it a national scandal. Even the Guardian’s talking about it.

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Is it really so secret (forgetting the fact, of course, that it’s not really that secret if it’s smeared across most of the papers and all over twitter)? Should we all, at once, cease contact with our loved ones, lest the secret court swoop in and jail us?

The short answer, as you may expect, is no. A slightly longer answer is below, and the explanations of others can also be found on other legal blogs, like Pink Tape (here: http://www.pinktape.co.uk/category/rants/) in the form of a blog by another Lucy, Lucy Reed, a barrister who is much more eloquent than me, as well as no doubt on other legal blogs or in irked legal snippets in tweets and updates.

Strike One for Secret

To the case then, for the facts, and to see how claims about the secret court stack up.

There have been a few hearings following an injunction to stop contact between the grandmother and her grandchild (as well as between the grandmother’s son, the granddaughter’s father, and the granddaughter).

The first judgment, of four, was on 21 March 2014. You can find it here: http://www.bailii.org/ew/cases/EWCOP/2014/B18.html so there isn’t much point in my regurgitating it in too much detail for you.

The link is accessible to anyone, so, it seems like it’s already strike one for “secret”.

In short, this dealt with behaviour by F (let’s call him Frank – I hate alphabet soup), the father of B (and let’s call her Beatrice), who has been the subject of litigation for most of her life, having recently turned 18, which naturally caused her a lot of stress and anxiety, in particular since she suffers with attachment disorder as well as having mild learning difficulties.

Beatrice was described as pleasant although, it is acknowledged she sometimes has behavioural issues, in particular with her temper. Beatrice’s grandmother G (we all know now her name is Kathleen, so that’s what we’ll call her) is hardly mentioned, except to say the Local Authority thinks Beatrice shouldn’t have any contact with Frank or Kathleen, subject to this being reviewed periodically. The matter at hand is whether a Hadkinson order could be made – that’s otherwise known as an “unless” order (an order that you can’t make applications unless you stop being in contempt of court). There hadn’t been one in the Court of Protection before, although I agree there seems to be no reason why the Court of Protection should not be entitled to make them.

In Contempt of Court

Frank didn’t attend in person. He chose not to do so because he was already in breach of an order made in January 2014, banning both he and Kathleen from contacting Beatrice because of their on-going interfering and distressing behaviour, and the impact it was having on Beatrice. This meant Frank was in contempt of Court, and could have been arrested had he entered the jurisdiction.

Beatrice’s history, as the judge rightly noted in a later hearing, is unhappy. Shortly after her birth, social services had become involved, and she was made the subject of a supervision order. Her parents later separated and there was litigation over contact arrangements.

During a visit to see Frank in Scotland in 2005, he refused to return her to her home, although he became unable to care for her and sought the help of his local authority. Not long afterwards he assaulted Beatrice and was duly charged, (he seems to claim he roughly grabbed her to stop her running into traffic during a tantrum, or maybe it’s only the papers and his mother that claim this for him), after which she was placed in foster care, from where he tried to remove her, presumably back to stay with him although he had already shown he was not able to look after her, and away from the relationships Beatrice enjoyed with her mother, her mother’s partner, and her two half-siblings.

The Order was made, and the judge directed that it be urgently anonymised as appropriate and published. It was published, like most judgements, on Bailii, where it remains today. Bailii is an online resource which anyone can access, but I have to wonder if the reporters at the various papers reporting this ever looked at it.

The next judgment, on 7 April 2014, is largely to do with Frank again (here it is: http://www.bailii.org/ew/cases/EWCOP/2014/B21.html) but you can see reference to Kathleen pops up at paragraph four – her case is being heard the next week – as well as some examples of her behaviour and how it impacts Beatrice.

The local authority wanted Beatrice to continue living where she was. She seemed to get on with staff at that care home, and seemed reasonably settled, despite the best efforts of Frank and Kathleen, including Frank trying to stop Beatrice taking medicine for menstrual problems, and Kathleen’s behaviour upsetting Beatrice to the point she smashed a window, broke cups and mugs, and scratched herself on the arms.

As it happens I attended a Number 5 Chambers event last year where this was mentioned in response to the first hisses of the press at the case of Kathleen and Beatrice, and I remember the Judge noting at that time that Kathleen’s behaviour had been extremely difficult.

Strike Two for the Secret Part

Here’s something important I remember from those comments about what was even then a very public case, which is reiterated in this judgement: the Local Authority did not want to stop contact between Beatrice and her family. Even in the face of– shall we say politely – challenging behaviour from Frank and Kathleen, Beatrice spoke with Frank over the phone (I do not imagine he would have visited, due to his warrant) and Beatrice’s mother, mother’s partner, and siblings continued to see her regularly. Beatrice enjoyed those relationships. She also enjoyed her relationship with Frank – perhaps fortunately, she was not able to understand his behaviour or the assault, and she wanted to continue her relationship with him.

Neither Frank nor Kathleen attended these proceedings. There was no evidence they had considered Beatrice’s wellbeing in any of their behaviour, although there was evidence they were campaigning against the local authority on Facebook. In Frank’s case, he seemed motivated by a desire to undermine the Local Authority. Tellingly, Beatrice told the judge of Frank “if he really wanted to see me, he would come to Court”. The Local Authority sought to restrict their contact with Beatrice to indirect telephone calls – that’s calls on speakerphone with an appropriate person – on a four weekly basis. This would be in place for five years unless Kathleen or Frank applied to have it changed, which they were free to do. This was largely to try to give Beatrice some peace from the litigation which had plagued her throughout her life.

Again, the judgement is published on Bailii, where it remains. Strike two for the “secret” part.

Strike Three for Secret

The third judgment, of 15 April 2014, is here: http://www.bailii.org/ew/cases/EWCOP/2014/B22.html. It was a public hearing and notice had been given to all the parties. As is usual, there was also a notice put up outside the Court and in the reception area. Anyone who wanted to attend was free to do so.

Strike three for secret, then.

The judge had still not heard from Kathleen, although it had been some two months since she was personally served with the Order banning her from contacting Beatrice.

This judgment is about the 28 February 2014, when Kathleen arranged to meet Beatrice outside a pub. Some of the papers claim this was pure coincidence, and Kathleen does not accept she deliberately met her granddaughter, saying Beatrice just happened to approach her, although it is also alleged Kathleen loitered there waiting for Beatrice, and CCTV does show her walking to the pub, going inside briefly to use the bathroom, and then waiting outside for some four minutes, before Beatrice arrived. More damningly Beatrice has stilted conversation, relayed in the link about, where she appears to be torn between keeping the visit a secret, and being thrilled her grandmother had come all that way to see her (I think a delight for Beatrice, so used to her father not coming to see her).

It was on that occasion Kathleen gave Beatrice the hug the papers have referred to, as well as a small package. Beatrice tucked the package inside her coat or underneath her top, and the contents of it remain unclear.

Kathleen told the papers that Beatrice had repeatedly run away from her care. Indeed she had run away – always to meet Kathleen or possibly Frank, who seem to have told her to do so.

At Court there was again reference that after seeing Kathleen or Frank, Beatrice’s behaviour would sharply deteriorate, in some cases as the one mentioned above with self-harm, in other cases with expressing a wish to be “six foot under”, threatening self-harm, or hurting herself. She would also become violent towards her co-resident at the care home. This is hardly the behaviour you would expect to be inspired following a simple hug from a loving grandmother. It is also clear the problem in fact is not the hug – it is the behaviour the contact, which is much more than a hug (a mysterious package more, at least).

The judge was satisfied Kathleen had intentionally broken the order to stop her seeing her granddaughter. She was sentenced to three months imprisonment.

Definitely Not So Secret

The next judgment is short (and also available online – definitely not so secret): http://www.bailii.org/ew/cases/EWCOP/2014/B26.html. It is dated 16 July 2014 and was for a hearing lined up for Kathleen to attend to ask the judge to mitigate, amend or even quash the sentence of three months (which she had not yet started). Again she chose not to attend court and so she was arrested. If she was arrested she was to be able to apply to purge her contempt. It was on 31 December that Kathleen finally did so, following spending time in prison, although she did tell the Guardian she did not care about that.

So, unsurprisingly, it seems this is not a case about a hug, and it is not a case in a secret court. However dramatic the headlines may be, in this case, it’s better to take them with a pinch (or a shovel) of salt.