England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
SITTING AT BIRMINGHAM CIVIL JUSTICE CENTRE

		Birmingham County Court Bull Street Birmingham
		12th April 2012

JUDGE CARDINAL:

1. I shall begin my remarks this afternoon by reminding everyone of the events that have taken place today and comparing them with last week and indeed this week. I made it clear during these proceedings that on no account were the proceedings to be discussed with JM; for in no manner of course should any injunction made by this court be breached. Any discussion in JM's presence with a Solicitor is therefore in breach of the rules and a contempt of court. Any wrongful removal of him from the Home other than for the purposes of contact is also a breach of the injunction. Both of these appear to have happened today. I anticipate an application for committal to be made in due course by the Local Authority involved. I will not deal with committal today, though it is tempting, because there appears to have been a flagrant ignoring of the directions and comments that I have made and calm reflection is required.
2. However, in order to protect JM, whose welfare comes first, I make it clear that he is to be kept in a separate room this afternoon with someone from Social Services and with security and nobody else, and he is to be collected and returned to AH as soon as the representative from AH can be here. I think that should be done as a matter of urgency and I trust there is someone in transit.

COUNSEL: I know that a phone call has been made.

JUDGE CARDINAL: Thank you.

3. I make it clear to this lady Solicitor here at the behest of WM and IM, because I do not suppose she may have known that there are injunctions afoot, and I make it clear to her too that the rules make it absolutely plain that the matter cannot be discussed inappropriately, and certainly it looks like there has been a breach, so she may inadvertently herself be involved in a contempt, though I do not think I need to dwell on that, that is something for me to consider on a later date, but this is a very, very, very grave matter. There is another lady now come into court, I do not know who she is.

COUNSEL: IM's' partner, C.

JUDGE CARDINAL: That is all right, C can stay. Very well.

4. I shall now deal with the judgment that I was intending to deal with:
5. Planning for the future of an ailing and declining relation is a very worrying and distressing time for all those involved, especially where a loved elderly parent is concerned and there are no real prospects of a recovery. Not only is their state of mind and health alarming, it causes great distress and upset, and it can affect relationships within the family and with professionals. The court has considerable sympathy for those in a family faced with such a problem, though less for those who disobey court orders.
6. The future of JM, who is the subject of an application by SCC, is such a case. He is now aged 79 and lives at AH, a care home run by SCC. He suffers it is said from Alzheimer's disease and vascular dementia, from which there is no recovery. I note at this early stage this diagnosis has at times been disputed by his daughter, WM, but at other times she seems also to accept it. She certainly agrees he has a form of dementia. He also has a number of other medical problems, such as diabetes and TB, so he needs to be very carefully managed, and his health management poses other challenges too.
7. JM is represented by the Official Solicitor in the case before me, so no one else can take instructions from him. The other respondents are the adult children of JM, namely his daughter WM, to whom I have referred, and his sons EM and IM. There is another son I think called WM too, but he is not taking part in the proceedings.
8. JM is currently detained in the home under the Deprivation of Liberty Provisions. That is contrary to the wishes of WM, who seeks either to look after him in accommodation in Turkey, whence the family in part originates, or else in a new rented home in the Local Authority area concerned.
9. The case has a complex and slightly confusing chronology as to residences and placements of JM, but the following appear to be the salient facts. First, on 26^th April 2010, JM was found collapsed on the floor at his home with hyperglycaemia. Second, he was transferred to a home called SC on 30^th April 2010. Third, the Local Authority apparently with WM present concluded that 24 hour care was needed, and he became resident at PH Care Home shortly thereafter until August 2010. Fourthly, in August 2010, his family moved him to TM Residential Care Home. Fifth, at WM's request he was…

FEMALE VOICE: Not right.

JUDGE CARDINAL: I will not be interrupted. I made that clear last week. That is a contempt. I will deal with you appropriately if I have to.

10. At WM'S request, he was returned to PH on 5^th November 2010. At this point, the Local Authority record that WM began a number of unauthorised removals of her father from PH for visits to her, keeping him out on occasion overnight. Sixthly, the Local Authority became concerned and obtained a Deprivation of Liberty authorisation. On Boxing Day 2010, JM was removed by his sons, EM and IM; and WM) took him to Turkey on 29^th December. That removal breached the Deprivation of Liberty provisions.
11. Although I was not going to say it, I now insert this here: it seems to me quite possibly that a number of criminal offences are being or have been committed in this case. That may well need the Local Authority to take suitable action; that is a matter for SCC.
12. WM returned JM and took him to a GP on 16^th February 2011. A welfare check was made by SCC Social Workers, who reported WM was abusive that day. On 8^th March 2011, although WM disputes this, the Local Authority report that she contacted them saying she could not cope and JM was becoming increasingly aggressive. Her case is she needed some form of respite from care. He was placed where he now lives at AH in SCC's local area. WM has repeatedly said she wants JM home in the community and indicated that he should be removed back to her or else she could take him to Turkey. She also wished to access his finances.
13. On 24^th March of last year, an attempt was made to remove him. The whole family at that stage was in dispute with the Local Authority, which led first to another Deprivation of Liberty authorisation and hence to these proceedings.
14. That is not the end of the matter. There are some other important points to make at this stage:
15. On 8^th June 2011, SCC alleged WM behaved improperly at a contact visit and they say caused JM some distress. The Police had to be called and WM was escorted off the premises. Since then, WM has only had supervised contact both by telephone or face to face. Her brothers by contrast have had unrestricted contact. WM has continued to discuss the matter inappropriately say SCC with JM causing him dismay, and as a result I granted injunctions to prevent molestation, harassment etcetera against her and her brothers in the light of the history. I anticipate a contempt application of a breach of those injunctions to follow today's events.
16. There have been concerns that WM intends unlawfully to publish details of this case in the Press and run some sort of campaign about the case…

FEMALE VOICE: Human right.

JUDGE CARDINAL:

17. I have during the course of this case reminded WM of Rule 90 of the Court of Protection Rules and I shortly shall do so again. During the course of this case, I have had to direct WM to surrender her father's passport, which she eventually did, but somewhat unwillingly, to the Official Solicitor and I shall make provision for the passport later again in the course of this judgment.
18. SCC argues that JM now needs 24 hour EMI residential care and that the current home can provide this as a permanent place of residence for him. I am told he can move in due course to another room in the premises when available.
19. I have already set out WM's wishes as to care. EM has decided not to attend the hearing. He says although his relationship with WM has not always been good, he supports her caring for his father. If not, he would wish his father to live close enough for him to continue to see him on an unrestricted basis. IM did not attend the hearing till Wednesday 4^th April and then just for that day. He was not represented. His view is that whilst he would support WM in caring for her father, her plans were not formulated, and his father is content and well looked after where he is at AH. However, I was alarmed that during the course of the trial, he is reported to have said he will remove his father if I do not order he can stay with WM. I shall come to that allegation in due course…

MALE VOICE: Who said that?

JUDGE CARDINAL: …I am even more concerned by his conduct today, which leads me to conclude that the threat is a real one.

20. WM has insisted upon representing herself during this case throughout, despite my urging her many months ago to take legal advice…

FEMALE VOICE: I explained…

JUDGE CARDINAL: …she has filed at court a number of letters and handed to me on Monday 2^nd April, the first day of the trial, a bundle of her care proposals. Sadly, it was but a folder containing loose documents. In addition, there is on the file an envelope containing similar leaflets and letters, plus two statements prepared by friends of hers. Her letters, like her evidence, are angry and at times rambling and imprecise…

FEMALE VOICE: Eh?

JUDGE CARDINAL: …in addition, they are not an easy read. I have at directions hearings impressed on her the vital need for a properly typed statement setting out calmly what her case is…

FEMALE VOICE: I've done that.

JUDGE CARDINAL: …whether she, [to WM's solicitor] if your client wishes to be removed from this judgment, she will be, and she will miss some very important information she needs to listen to. She either behaves herself now or stops behaving like a child. She must know there are things I am going to say she does not like. I shall continue to say them. I have had enough of this behaviour, which repeats what happened last week. I repeat:

21. Her letters, like her evidence, are angry and at times rambling and imprecise. In addition, they are not an easy read, and I have at directions hearings impressed on her the vital need for a typed statement setting out calmly what her case is, whether she opposes the diagnosis of Alzheimer's disease etcetera, and what her plans are for the best interests of her father. She has simply not complied, so in a sense she has presented no case at all.
22. I have found her to be a very difficult litigant in person. She is not always unpleasant, but she is inaccurate and often diverted in her advocacy and has the discourteous habit of rudely talking over the comments and questions of other advocates, even myself, seeking on occasion to chat to her brother IM when he was at the back of the court. She interrupts Counsel and myself halfway through questions and comments, and as can be seen she interrupts even today. She is tangential in her consideration of matters and is easily sidetracked.
23. On many occasions, she simply would not or could not answer a question. She is obsessive in her view of what her father's human rights are. She is obsessed too by the notion that SCC are after her father's money and assets and little else. This has led her to be discourteous on occasion and lack some self control. She makes wild allegations of dishonesty against the Social Worker LW and against the Local Authority in general, though I say at the outset she is yet to justify any such comments in any way or at all. I have tried time and time again to persuade her to be relevant in her answers to questions, and also in the questions she has asked and in her final submissions to me. Alas, I have not succeeded even after trying to give her the most graphic illustrations of just how unhelpful to herself her conduct of this case has been.
24. Regrettably, I have had to rise on occasion for WM to calm down, and she has I am told been very rude on several occasions to Social Workers and had to be removed from District Judge Owen's court at one hearing before the matter was listed before me. The point was well made in the evidence of Mr JF, the Independent Social Worker, to which I shall come. It is one thing to be appropriately assertive. It is not alright to be simply argumentative, which is what I am afraid she is and has been.
25. Her conduct during the proceedings has betrayed a complete disregard for the most basic etiquette. She has left her mobile phone on. She has eaten in court. She has interrupted and made inappropriate comments. She has exaggerated too, for example claiming JF only saw her for 30 minutes, which she then changed that to an hour, though clear evidence shows she was seen for over two hours. It does not help her case to overstate it.
26. But she is not, as I have said, all bad. She is very determined and committed to her father and he is very plainly fond of her. It would, it seems, be the case that he would like to live with her, but I shall come to his wishes and feelings below. WM is very anxious to repair what was a poor relationship between her and her father when she was younger and that is to her credit.
27. I have tried to assist her on occasion and get her to concentrate, but for reasons I have said it has been very difficult. She even handed to me on 11^th April, the day set for final submissions, a new set of purported care plans for her father. I have looked at them even though they have not been subjected to scrutiny by cross-examination, but without any demur from Counsel for the Local Authority or the Official Solicitor, and again they are a motley collection of loose documents and not a plan at all, just vague suggestions, save statements by family members which appear to repeat her evidence. Repeating evidence already given is not tantamount to preparing a care plan, nor is an assertion of the kind of person whom the family will seek to engage to help when nothing has been set up or formally proposed.
28. There is one very worrying side to her evidence, or should I say two sides, after developments today, with the father being wrongly taken to a Solicitor and brought to this court, a journey of 60 miles or so. Although WM sought not to tell me, she has clearly been preparing some sort of leafleting or Press campaign arising out of these proceedings, despite knowing that such a campaign and the revelation of names of the parties and the witnesses and the Solicitors is contrary to the Court of Protection rules. I remind her now that were she to go ahead and publicise these matters, she would again be in contempt, and I regard contempt very seriously indeed.
29. As I shall come to criticise her further, she might reflect on the fact that the Local Authority is undoubtedly now considering a committal application. It might also seek itself to have the whole of my judgment in an anonymous form to be revealed publicly, and that judgment will not reflect well on her.
30. In his final submissions, Mr Bowe relied on the protection of Rule 90 of the Court of Protection Rules and asked me to add in my order a lengthy recital, reminding everyone of the rules and their impact and stressing that the identity of JM and his welfare and the witnesses and the legal advisors should not be revealed. Miss Khalique supports that for the Official Solicitor, and I consider it essential given WM's attitude. I will ask Mr Bowe to prepare such a recital to be agreed only with Miss Khalique to cover all forms of publicity, whether by contacting the Press or TV, leafleting or using any form of electronic communication, including website, email, Facebook, texts and so on.
31. Unusually, at this preliminary stage I feel bound to refer to WM's own psychological problems, because during the course of his investigations JF recommended such a report be obtained to enable him to complete his, I insert it here because it informs all just how difficult it is working with WM. And so it is that I first heard from Dr CB. Concern as to the personality and functioning of WM led the court to direct a report to enable me to know her understanding of her father's needs in the short, medium and long term, her duty to work with outside agencies, and her understanding of her own needs and abilities as a carer.
32. CB is an experienced Child and Adult Psychologist. What she says in her report causes me further anxiety. I have no doubt that WM loves her father and that that love is reciprocated. Likewise, I do not doubt her commitment to him and her determination to see that the best is done for him, but as the report reveals there are considerable deficits in her perception and attitude that make her caring for him extremely difficult.
33. In her report of 2^nd December 2011, CB makes significant points which were not effectively challenged in evidence by WM: In providing answers to questions, WM supplied a great deal of tangential information to CB and became distracted in her account. [That is how she approached her evidence in general, and indeed how she has represented herself throughout]. In giving information about her father, CB writes this, "It was difficult to obtain very much information from WM about her father's current needs, as she responded to all questions of this type with a lengthy account of her concerns of the past actions of Social Workers and members of her family and about the current care arrangements for her father. WM simply doesn't anticipate the difficulties in caring for her father.
34. Indeed, in her oral evidence, Dr CB amplified this, saying WM did not agree the extent of the likely decline in her father, and she writes this further on in her report, "WM's preoccupation with her own concerns and the associated reluctance to listen to others are likely to form significant barriers to her engaging in cooperative and effective work with outside agencies. When assessed, WM showed evidence of confused thinking and extreme suspicion of Social Workers and other professionals. This suspicion is also likely to form a significant barrier to the establishment of effective working relationships with outside agencies."
35. She continues, "It is therefore likely to be very difficult for WM to accept advice or guidance from outside agencies regarding the care of her father and particularly if this advice is perceived by her as being critical. On the basis of all the available information, I have significant doubts about WM's ability to work effectively with outside agencies. WM sees caring for her father as some sort of emotional repair work"; and this was concluded by Dr CB. "Her own personality is an impediment to the successful caring for her father."
36. She adds this in her report, "When assessed, WM turns her focus on her own perspective and needs to the extent that it was difficult to obtain any detailed information about her father's needs. She tended to emphasise and perhaps even to exaggerate her strengths and achievements. She was not willing to assume any personal responsibility for difficulties that have arisen during the course of proceedings." She thought she was most unlikely to be cooperative with any outside agencies, as I have indicated.
37. Finally, WM's expectations of her father were unrealistic she thought, although WM interrupted her to deny this, and she felt that would cause distressing frustration for her. CB told me she had spent four and a half hours with WM and felt this is a quite sufficient period of time to get to know her. She had administered psychological psychometric testing and assessed her personality and intelligence in accordance with her written evidence and her observations. WM tended to emphasise her ability overly to cope with her father and failed to see things from the perspective of others. She could learn what her father's needs are, but it would be difficult for her to respond to those needs despite the strength of her commitment and determination. To change her approach, WM needed long term therapy, which she could not guarantee would succeed.
38. There was no effective challenge as I say to this evidence. Dr CB told me WM is a strong character, yet her motivation would not help her deal with a vulnerable man. She did not believe things would be different if there were a different care agency not connected to the Local Authority. Things might be fine initially, but WM takes any intervention and advice as negative and unacceptable criticism. Her personality difficulties would cause disagreements over such advice as to her father's needs. Of course, WM did not agree with that, but Dr CB did not waiver at all in her conclusions.
39. In time, she would like things to move to more contact between WM and JM, but there clearly had to be a working agreement, she advised, setting out obligations between each party. Whilst she accepted that WM might be able to deal with JM's needs on some occasions, dealing with his inevitable decline would be difficult if not impossible for her and she would find it very frustrating.
40. I have listened very carefully to all that was put to Dr CB. She maintained her view, and it her views were compelling. It seems to me therefore there is no real prospect now or indeed ever of WM being able to care for her father.
41. So it appears from the outset WM's care proposals are doomed to failure, but I move on to consider the matter more fully. The Local Authority seeks findings by me that the diagnostic and functional test within the 2005 Mental Capacity Act are met and JM is accordingly unable to litigate without the Official Solicitor and that he cannot make decisions as to his residence, care plan, contact with his family and as to dealing with his property and financial affairs.
42. So to evaluate that alleged disability, I have read and heard the independent psychiatric evidence, to which I now come. Dr J is a Consultant Psychiatrist in old age medicine. I have seen two reports from her of July last year and December last year, the first dealing mainly with the welfare issues in the case and the latter with the property and affairs application by the Local Authority. The reports are very lengthy, but the conclusions are clear.
43. In the first report, Dr J concluded this, "In summary, JM presents with a history and an examination consistent with a mixed Alzheimer's/vascular dementia. He presents with global impairments of orientation, attention and concentration, short term patchy long term memory deficits, spatial awareness, executive dysfunction and reduced insight, which would be in keeping with the above diagnosis. This has impacted on his activities of daily living in that he needs prompting and supervision with these tasks. It is documented that he had a gradual decline which would be consistent with the Alzheimer's type process. He does have significant vascular risk factors, diabetes and hypertension, and also presents with a fluctuating picture which is consistent with a cerebrovascular disease component."
44. In her oral evidence, she confirmed to me there is no cure for vascular dementia. Medication can slow down the deterioration of cognitive functions, but not prevent a slow decline eventually to death. She felt that JM does not have the capacity to litigate and she said this in particular, "In my opinion, on the balance of probabilities, JM does not have the capacity to make decisions regarding (a) his residence, including with whom he should reside, (b) with whom he should have contact and what format contact should take, and (c) his care needs and how these should be met." There was no prospect, she said, of him regaining ability to take those relevant decisions.
45. In her first report, she weighed up in accordance with the guidance given by Mr Justice Thorpe, as he then was, the advantages and disadvantages of living in a care home, in a supported care home environment, and with WM with or without support, and she outlines matters in full, dismissing all the opportunities apart from being in a 24 hour care home.
46. She says of that, "JM has settled extremely well in 24 hour care. He needs supervision and some assistance with his personal care. There is a history of poor compliance, weight loss and self neglect in his home environment, which has improved in 24 hour care. His health and safety are being maintained through staff supervision, support and monitoring of his diet, self care, medication and diabetes control. While on the unit, JM has shown evidence of intermittent agitation, but this has necessitated a skilled care staff, and he has exhibited agitation and disorientation when out of the home environment. JM has made friends within the unit and has not made any attempt or request to leave unless prompted by his family or professionals."
47. She was quite unable to recommend a move as WM suggests to Turkey, though in the course of proceedings WM told me that the stay in Turkey would only be temporary, though I was not quite sure what she meant by this. She did not think in particular it would be in the interest of JM to live with WM.
48. In her second report, she was of the opinion it was unlikely JM would ever recover capacity to make decisions relating to his property and affairs, which he did not have. She confirmed to me that JM's condition means that the diagnostic and functional tests within Sections 2 and 3 of the 2005 Act are duly met. She understood that contact had been difficult for WM and initially had been for IM and EM, though over the last few months extensive unsupervised contact for the brothers had been effective. She continued to recommend supervised or supported contact between WM and JM. There were a number of concerns as to contact with WM, Problems arose because of WM's personality and the level of agitation and interactions that WM caused.
49. During the hearing before me, she learned that JM could now stay at AH in SCC's area and that the transfer to him from the assessment unit to living there full time could be effected. That was, she said, a very positive development. She regarded the move, any move, to elsewhere to be disturbing for a party with dementia, and the ideal solution was to stay in an environment where he is settled and happy. Such a move could cause distress and agitation. She was certainly opposed to moving to Turkey, where there was a different way of life. At AH, JM knew the Manager and the staff. It was the ideal solution.
50. She did not accept that she spoke only briefly about the matter to WM and reminded her of a pre-booked telephone call that had taken place and lasted until WM's own credit on her phone ran out. She was concerned, she said, that JM's problems might escalate in travelling to Turkey or in the distress and anxiety caused by such a journey. She accepted it was ideal for a dementia patient to live at the same home if possible, and she saw no evidence that other than full 24 hour care will be needed.
51. Was it not true, asked WM, that JM had 'improved 100%' when he was in Turkey. She did not know about the stay, but she did know that when JM was admitted to care, he was in a distressed state and in a state of neglect. He was in any event continuing to decline because he has a dementing illness. Just because he has been to Turkey before successfully does not mean that he should go again, and that reveals a fundamental flaw in WM's perception of the case.
52. Was it not the case that JM was now deprived of the long walks he used to love when in Turkey? But JM was able to go out for walks with WM's siblings, and one needed to balance his immediate needs with the distress and agitation doing unusual things might cause him. She did not believe WM could provide the appropriate 24 hour care that is required in this case. Could not care in his own home be purchased? Were he still living at his home the Local Authority undoubtedly would have sought to provide such a care package, but that was not the case here; and indeed there remained concerns as to the cooperation with this family and Social Services when he had been admitted to Local Authority care, concerns, if I may say, that have been underlined by the behaviour of IM and WM today in bringing their Father to court.
53. She took account of JM's wishes and feelings, and those needed to be weighed in the balance against what is clearly in his best interests. WM alleged that remaining in the home would kill him; But Dr J would not accept that. Decline in any event is inevitable. She was aware of the injunction restraining WM from talking to JM about leaving the home, and in addition in any way pestering her father. She was in agreement with the Social Services plan if possible to increase time spent with his family over periods of time by graded increase in contact. It was important though that the family should engage with Social Services. When she gave this evidence, she was able to say that EM and IM appeared to have calmed down, but WM appeared not to have done. It was still the case that even telephone calls from WM had caused JM to be agitated, and she noticed that on one occasion he had had to walk out of the room during face to face supervised contact.
54. There needed to be, she said, a complete change in WM's attitude. After this court hearing, she hoped that a line could be drawn and WM could start again. I must say that is a hope that has foundered this day. She did not feel that JM was in a restricted environment where he is at AH.
55. I found Dr J's evidence compelling. She confirmed what JM's needs are. She confirmed where he ought to live. She confirmed the impossibility of him taking a balanced decision himself as to residence, contact, care, and property and affairs matters, and she confirmed what his best interests are in terms of care package etcetera. The evidence as I say is compelling, overwhelming and was not controverted in any way by the cross-examination.
56. So that leaves the main issue of best interests. Given JM's incapacity, what is best for him in terms of residence and care package? With whom and how should he have contact? Who should be his financial deputy? I remind myself that WM considers her) father cannot deal with his finances in any event and she offers herself as deputy, but the Local Authority seeks that one of its officers be appointed.
57. The Local Authority's case is based on the key evidence of the Key Social Worker LW. She has been subjected to a great deal of criticism and indeed been accused of lying by WM, being after father's money and property. Well what did she say? She has been the Key Social Worker since the outset of these proceedings and I have read all six of her statements filed. In addition, she produced notes of recent telephone calls to AH that caused me some concern, to which I shall come. She would be concerned were WM to return JM to Turkey because she knew nothing of care planning there and the skills of those who would look after JM in Turkey. She noted that WM had not yet filed a distinct care package plan. She would have expected a proper plan to cover JM's needs, that would set out his physical and mental difficulties, what could be done to provide for those needs on a daily basis, identify the General Practitioner involved and so on.
58. By contrast, the Local Authority had a clear plan for JM to remain in his present home. The Local Authority relationship with WM has remained a difficult one. She would shout and swear on the telephone. By comparison, IM and EM had it seemed moved on, subject to what I say later in this judgment, and they now have unrestricted contact. IM had had unsupervised contact for a good three months. There had been a risk assessment which had led to that unsupervised contact. She was however concerned to see the notes of AM at the AH home of a recent alleged threat by IM to take the law into his own hands and remove JM from AH, but she wanted WM and indeed IM to continue to have unsupervised contact, though in WM's case it must be after a period of building up and trust. She agreed with the views of Dr J and also of JF, the independent Social Worker, to whom I shall come.
59. She was also concerned by the apparent preparedness of WM to reveal matters in this case to the local newspaper. She told me she wanted an injunction to restrain a removal of JM from the property, and I remind all parties, as I have several times in this case, that they are so restrained and will continue to be so, and there should be no publicity of this case without application to me; the rules make that distinctly clear. Indeed, I make it clear now at this point in my judgment that any revelation of information in this case is a contempt of court and I will deal with it seriously.
60. Originally, the Local Authority had sought to support a return home by JM after an initial stay in Local Authority care, she said. She had been seeking to arrange a reallocation of better accommodation for WM and JM together. A letter had gone to the Housing Department to support that. WM would not accept she had done that and said she had not written, but she had, she said, and I believe her. She then told me that WM had wanted to remove her father back to either his or her address and that had led to a Local Authority intervention, and she recalled WM had been abusive on the telephone.
61. Of the family, it was only WM who wanted JM at home with her. It was not feasible for EM. IM had considered it, but had no plans that had come to fruition. WM's flat however was difficult. It only had access through a number of stairs and was quite unsuitable for her father, nor had WM provided yet the proper 24 hour care plan which JM requires.
62. It was put to her that she was never sufficiently available to speak on the telephone to the family, but she told me she always returns calls and there is someone who can take calls in an emergency; again I believe her. WM irritably accused LW of neglect of her father so that he nearly died. When that serious event allegedly took place, she was not the Social Worker at the time and I have not had to consider evidence with regard to that.
63. What did she say JM needed? She said this, "Due to JM's presenting care needs, previous recommendations for long term care needs remain the same. He will require a residential home that specialises in dementia care. This type of accommodation should provide a consistent approach to ensure that JM's care needs are met and managed within a structured environment."
64. She had assessed the relative merits of provision for JM in her statement of November. She dismissed the possibility of a return home because of the progressive dementia illness and the deterioration in his cognitive functioning. She would like him to be living in a supported living environment, but that would not provide the consistent structural routine that he needed, and the return to WM would simply be an unacceptable risk in the wholesale absence of a proper care package, and WM in any event would seek to disengage with professionals. The only alternative in reality, and the best alternative, was an EMI residential home to cope with the significant cognitive impairments of JM and his short term memory deficits.
65. She did not accept there was any evidence of neglect of JM in the care home. She had not seen any evidence of rough handling, and if there had been she would have caused it to be investigated, and I note at this point that when IM gave evidence, he said that WM, his sister, was wrong and JM was being well looked after in the home. It was not true to say, she said, that JM was restricted in the home. He had outings, for example to a garden centre and to local gardens, with the home, plus of course a trip to the shops to buy clothing. In addition, he went out with his sons. It was not true that IM and EM had only had two supported contacts and then wholly unsupervised contacts as WM alleged, but she did hope that one day unsupported contact with WM might be possible. What was needed was consistent settled contact with WM with no upset to JM and no form of distress caused to him. She later said she agreed that a good working agreement needed to be drawn up so that contact could progress.
66. She was specifically challenged by WM about an occasion when the Police had to escort her off the premises at the AH home. I was shown the contact notes for that day and that reflects WM's aggressive attitude. I could not see how this questioning benefited WM's case. Her behaviour plainly continues to leave a great deal to be desired.
67. WM accused her of discriminating against her, but to put no example of this to the court. LW is perfectly entitled to draw a distinction between a cooperative family member and one who plainly is not, and I do not criticise her, for WM's accusations and implied threats are wholly unacceptable. WM accused her of saying she [WM] had learning difficulties, but that is plainly not the case as documents reveal. She was satisfied that JM is settled and content in AH. I find that the questioning and challenges from WM were unjustified, inaccurate, rambling and exaggerated, and even on occasion incomprehensible. LW told Miss Khalique what the new care plan is for JM. I have to say that it seems to me to be entirely proper and well conceived. She also told her about the financial plans for reviewing JM's finances, which seemed to be in accordance with usual Local Authority practice. She agreed that there should be some eight weeks of peaceful contact before WM could begin to have contact unsupervised.
68. I find the evidence of LW entirely reliable. I accept all that she says. I make no criticisms of her whatsoever. Her suggestion, confirming the evidence of JF, of a working agreement with WM is entirely appropriate. If WM cannot abide by reasonable agreements then she will only have herself to blame for restrictions on her contact. I find there was no reason for WM not to engage with LW, who has done her best to engage with this family. WM should enter into such an agreement now and abide by it.
69. Having reviewed LW's evidence extremely favourably, I turn to the remaining expert evidence of JF, the independent Social Worker. What did he have to say? JF is a very experienced Social Worker who has assisted me on a number of occasions in Court of Protection cases in the past. I have read two reports of his dated October and December of last year. The important points are these: He supports the Local Authority plan for JM to remain at AH and does not consider it in the best interests of him to be placed with his daughter. Contact with WM should continue to be supported/supervised to include supported telephone contact until contact can become a more and more positive experience for JM.
70. Of the possibility of WM caring for JM, he writes this, "People with dementia require a settled, predictable and consistent environment in which to live and carers who are stable and calm in the way they conduct themselves. Carers must always place the needs of adults with complex needs before their own needs. They must never become frustrated by the behaviour that results from dementia and must relate to them in a way which acknowledges their difficulties. The available evidence thus far suggests WM would have significant difficulty in maintaining these essential aspects of care for her father."
71. That view was repeated in his second report, where he says this, "It is my opinion that JM should not be placed in the care of WM. It is further my opinion she should not have unsupported contact with him at this time as there must be concerns that she will act in the way which satisfies her needs and is likely to place JM at risk of harm."
72. JF gave a balanced and entirely fair piece of oral evidence, agreeing entirely with the views of Dr J. JM should remain in the 24 hour care environment in AH. He had conducted appropriate interviews and was aware of the concerns caused by the views of WM. Indeed, such were his concerns, it was he who suggested the psychological report which I have set out in great detail, and having seen that report he believed that the actions of the Local Authority were an inevitable response to the behaviour of WM and JM's best interests were served by being looked after in the safe and caring environment.
73. So what did he say of WM's proposals for JM? She and her brother are important people in JM's life, but JM needs consistency, understanding and the avoidance of frustration. Those with dementia can react aggressively and even be violent. Those caring for those needs need to be passive and reassuring in their reactions. He could not tell what care in Turkey would be like, but he did not think that living with WM would provide the consistency and calm that JM needs. He was concerned too about a move to Turkey because the Local Authority cannot of course fulfil its statutory duties in Turkey, a foreign jurisdiction.
74. He agreed with the psychiatrist that a gradualist approach to increasing contact should be adopted. There would need to be a period of calm before it can move on. The extension of contact should be an evolutionary process. Contact is a vital part of physical and emotional well-being provided that JM is physically and emotionally safe. He advised the Local Authority to be reactive and WM to demonstrate that she could provide good, safe and secure contact, "It is up to WM to make the first move."
75. He agreed remaining at AH is an advantage. Whilst JM could move, it is the best place for him. He had borne well in mind JM's wishes and feelings and the best interest considerations. He did not agree it was better for JM to move to his family despite WM's urging. True enough he likes the outdoors, "he is a free spirit", he said, but if he was sure JM would be safe with the family then he would have recommended it. If WM could demonstrate a settled and safe lifestyle then she might have a compelling argument, but that was not the case. He did not expect her to agree with everything he said, but he thought she could be appropriately assertive, but should not be [as she is instead] argumentative.
76. JF denied seeing WM for only 30 minutes, and it turned out from his records that he had seen her for two hours 10 minutes. I believe JF and I am concerned that WM continues to exaggerate to try and support her case. He denied that he had not asked appropriate questions. WM put to him that the Local Authority had lied about her, but he could not comment on that. He did not accept that JM is 'locked up' as it was put. WM needs to be assertive but not argumentative he repeated. I find the advice of JF to be measured, wide and accurate and his arguments compelling too. WM was quite unable effectively to attack what he said.
77. What are the views of JM himself? I was shown a video of a family meeting taken it seems without the home's knowledge before proceedings were begun in April of last year. It was an unsupervised visit and JM is seated in the garden of AH. He plainly says he would like to live with his family. He called the Local Authority 'silly buggers' and said he did not want to remain at AH. He missed his family. He would like to be with WM. But that said, the questioning leaves a huge amount to be desired. Questions with answers supplied were fired at him from the family, especially from WM. He was effectively being told what to think and the questioning was very intrusive.
78. So I look elsewhere for information as to his views. I have re-read carefully the notes of JM's meeting with KJ, the representative for the Official Solicitor. It seems to me that apart from wishing to move outside, JM does not express a consistent view. Accordingly, to be entirely fair, on 4^th April I telephoned JM at AH in the presence of Miss Khalique and KJ. Neither of them spoke to him. I spoke direct to JM at the home. KJ kept a note of the conversation, which is now in the bundle, and which is entirely accurate. I thought it would be intimidating for others to be involved in the circumstances.
79. JM remained inconsistent. I should read out the relevant parts of the interview. He is living at AH, "It's a very nice place. I like living there, although there are one or two people." He named his children. He said they were close family. IM and EM take him out regularly, "WM thinks the world of me." He was asked where he would like to live. JM said he travelled the world and he could not live in one place. He is very fit to travel, could cycle anywhere. He is just as fit now as he was years ago. Would he like to live with IM, EM or WM? He said that he would like to think about it. He could not live on his own. When asked if he would like to be with WM, he said it would be touch and go. When asked if he would live with IM or EM, he said, "He comes for me, he takes me out." He could not live at AH, though they did like him there. He would like to see his children regularly.
80. I therefore take it that ideally he would like to live elsewhere, but he is by no means certain of where, but I am satisfied that he communicated this information to me with no pressure put on him; but his view is inconsistent.
81. That leaves the very important views of the M family, and I come then to the evidence of IM, who attended on one day but has also been here today. Since then, WM tells me he has changed his mind, and it appears so in that he had come with a Solicitor and WM today, but it is by no means conclusive for IM has not written to me directly nor appeared before me seeking to change his views.
82. What did he say in his evidence? His evidence in sharp contrast to the approach of WM seemed to be measured and fair. He was not able to look after his father himself and he understood WM wanted to look after him. He said he appreciated twice weekly contact with his father. He did not make any allegations against the home. He felt that his sister should look after the father if she had a proper detailed care package, which presently he said she did not. He did not get on with LW, felt she misrepresented him, but got on with other members of the social work team. He was very pleased that AH would let his father stay there, "That's a very nice gesture", he said. His father was looked after well he thought. His father liked it there. He agreed he had made friends. He did not think WM was right to say that his father had sustained worrying injuries there.
83. He said he would take steps to let JM leave AH further, but it did not mean that he would remove him unlawfully, I have to say in the light of what has happened today I no longer trust in that. He would if requested give an undertaking to the court not to remove him, I think I should go further than that. He thought it proper however for his father to remain where he was. He would trust the court's judgment and he thought it would be fair.
84. His evidence was challenged of course by his own sister, WM, but he did not agree with her. He said again that her care plans were incomplete and lacking in detail. He did not think that the current plans for his father were inappropriate. He would however like to go on a course for carers himself and he would consult with the Local Authority if he could take his father on a holiday. He said that AH looked after his father well and he said that the care there was brilliant. He told me of a time when his father was shaky over being taken out, which only reflects of course the concerns one has for this man with dementia, "My father means everything to me", he said. He came over in his evidence as a kindly and considerate man, and what he said in his oral evidence wholly undermined all of WM's case and persuaded me that the plans of the Local Authority for JM are entirely appropriate.
85. Until today, I would have said that IM sensibly recognises the realities of the situation and was fair in his approach. That he has chosen with WM to take his father to see a Solicitor today convinces me that I was by no means right and I shall now listen at the end of my judgment to anything Mr Bowe wishes to have in terms of a further injunctive relief or anything further to protect this plan.
86. But on the evidence I heard, the only person sharply opposing the Local Authority's plans is therefore WM. I come to her evidence. The evidence of WM confirmed my worst fears for her inability to concentrate on the point at hand and to pursue even the ends she intended. I have already commented on her written evidence, the absence of a proper statement and the statements she provides from some friends in Turkey, who were of course not called. She has made a number of allegations of corruption against the Local Authority and against the Official Solicitor, allegations she has not pursued against the Official Solicitor. I make it clear that I have no criticisms of the Official Solicitor at all either on the basis of the expert evidence adduced or of conduct of Miss Khalique or her instructing Solicitor KJ. They have acted with impartial efficiency.
87. She had been ordered in August last by me to file her full care plans for JM, something she has still failed to do. She protested she thought she had given me full care details. I can only agree with IM that she has filed nothing like sufficient detail. She told me she lives at two addresses, in a rented property from the Local Authority at [address given], and in her own accommodation in Turkey at Daphne Apartments. She told me she made a great deal of money in property dealing in Turkey, which caused me some surprise as to why she has therefore Council property allocated to her. She thought her father had a form of dementia, but did not think he had got Alzheimer's disease. During the course of her evidence however, she accepted he will gradually decline, and then she would have in due course to deal with mobility problems, possibly incontinence, and other serious needs. She said she wanted her own independent psychiatric evidence, forgetting of course that Dr J had provided just that.
88. She wanted her father to spend some of his last days in Turkey, where he would be 100% better. She had sufficient money to look after him she said, though that did not square with her continuing reminders that she wanted to be paid for the last time she had him in Turkey. If her father lived in Turkey, he would get fresh air and greenery and that was what he needed. She filed a statement from an AT saying what help he could give. She told me there was a lively Pentecostalist church which she attended that is supportive. She had not filed a detailed care plan for living in Turkey, but a number of papers in its support.
89. Her father could either live with her or with her current boyfriend, one N. She said, "He is a very responsible man who has looked after his parents in the past", but I have no evidence from him, no evidence that could be tested at all. She had advertised in an English newspaper for help in Turkey and had so many offers of help she said she could become a hostess. If her father did not like N, he could live with her. Her father had met N at church. She had known him now as boyfriend for six months, though she had known him overall for five years.
90. If her father had to remain at AH, she wanted unfettered contact so she could talk to him. She did not like to have directed contact and phone calls foreshortened, "I have been written off by the Council, I have been set up", she said. She had been her father's main carer and that was the reason, the logic of which I am still unable to follow. If she resumed care of her father, whether in the United Kingdom or in Turkey, then she would ask for appropriate help.
91. Was it not true she had spirited her father away to Turkey in the past under a forged passport, where she had used her mother's name and called herself GL in the passport? That was because she had had a change of name, she said though I could not see the reason for that. She had brought her father back in 2011 because his accounts had been frozen. Given her protestations of wealth, that did not make any sense to me at all. She said her father got upset over money and wanted to have access to his money.
92. She did deny that she told the GP she could not cope with him; she had not said that, she simply had been unwell and wanted there to be short term help for her father in a day centre for respite. She did not agree she had said that her father was unmanageable. She did not agree that she had said her father was verbally and physically aggressive towards her, but it seems to me that is what the records say, "I was trapped, I had to surrender", she said, which made no sense to me at all, but her father had been angry with her she conceded. She was asked why she had not prepared a care plan, but she did not really give an answer as to why that was.
93. Well, what about IM's evidence? She did not agree that AH was the best place. IM had said different things to her; he did not visit her father quite so regularly anyway. She did not accept the Local Authority had cared sufficiently for him, "The home is not a healthy place", she said, and it seems to me she had no evidence to support those assertions.
94. If they stayed in the United Kingdom, they would stay at her father's house until it was sold, even though it had bad memories, or he could stay in her one bedroomed flat; then she conceded her brother EM was staying in her father's house and she had only just found out, and that concerned me because it revealed a family still struggling to work together. She wanted her father to have a social life, whether it be in Turkey or in Stoke. She felt however when her father says he wants to stay at AH, he had been brainwashed, an allegation again she was unable to sustain.
95. As to money, she should be the deputy and not the Local Authority because she knew how to pay bills. There was a conflict of interest she alleged with the Local Authority. I do not accept this and can find none.
96. Had she noted the injunction, preventing her from discussing matters with her father? That made her feel pushed away and frustrated. She was closest to dad. The Local Authority had pushed her too far, but that was not explained, nor her behaviour in discussing matters in front of her father, which she appears to do even today. The Local Authority have brainwashed her father, she said again, but she could not justify that.
97. Things had been very different when her father had been with her. Had she not prepared the purported draft Press article pushed through the door at AH and now in the bundle at B340 to 50? "No comment", she said. I had to press her, and eventually she conceded it with a bit of a smirk, saying it was pretty clear she had caused that to be drafted. That leaflet includes the comments, "My father has been kidnapped and held by the Council of S in order to have deputy over his personal privacy, freedom and his assets." It alleges a scam by the Local Authority that it is defrauding people and that they are thugs. It is bizarre, inaccurate, widely exaggerated and continues to make a number of other inaccurate allegations.
98. She admitted also she intended to sue the Local Authority Social Worker LW for discrimination, though what form of discrimination I cannot tell. She wanted, she said, to rescue people from this Local Authority. Her evidence became increasingly unbalanced and inaccurate, and I seriously doubt if she is fit to care for any elderly relative under any circumstances. She thought that KJ on behalf of the Official Solicitor had been effectively conspiring with the Local Authority. She had phoned KJ and been cut off. That did not explain her allegation at all. It concerned me that she was unable to see the Official Solicitor was investigating the matter impartially through independent experts.
99. Did she understand what dementia means? It seems to me she did not. She was asked about a former violent partner, Mr N, but said she had kept him away. Could she put the past behind her and begin to work with this Local Authority? She could not see her doing that unless there was a new Social Worker. It seems to me on the basis of what I have heard she would not work with any Social Worker under any circumstances. I have seldom heard such a mixture of bizarre, unjustified, illogical and depressingly worrying attacks on the Local Authority, and in addition on the Official Solicitor.
100. It seems to me that she holds forth with great gusto about her views which she cannot justify. Of all the parties in the case in terms of evidence, she is the only one out of step with everyone else, including her own brothers. I cannot conceive under any circumstances, even a substantial change in attitude, that JM could live safely with her. This lady simply does not listen to advice or take it onboard.
101. So I come to the conclusions I must draw as a result of what I have heard. First I am satisfied that JM is unable to take decisions as a result of his mental incapacity arising out of his Alzheimer's Disease and vascular dementia as to residence, contact with his family, his care package and his property and financial affairs. I remind myself as I must that the law is decision specific, so I have considered each point separately. This man is incapable of making decisions in all these aspects.
102. I am satisfied that JM's best interests are served by remaining where he is at AH. It is an entirely suitable place and JM likes it. He is made a fuss of. He likes the staff. He has friends. He likes going back there, even after a day out with IM. I am satisfied with the Local Authority's care package, which I have read. It is well constructed and covers the necessary aspects of the case.
103. I am not satisfied a trip to Turkey either in the short or long term would be to JM's benefit, rather the opposite. I have no criticism to make of the members of the local Pentecostalist church that WM attends. It appears a number of good hearted people were willing to help out with JM. Helping out is not good enough however. JM presents difficulties that will worsen. He now needs 24 hour care, something that WM even now does not seem to appreciate. I have not seen anything like sufficient details of what can be provided, just a jumble of leaflets and possibilities in Turkey.
104. Moreover, given the history of this matter and WM not apparently coping in the past, I do not consider it at all appropriate to authorise a removal from the jurisdiction. Likewise, I remain dissatisfied with WM's so-called care plan for JM to remain in the UK. The sad truth is that despite being ordered as long ago as last year in August to do so, she has still not filed a care plan in detail at all. She has persisted to the last in providing leaflets as to possibilities and suggestions; nothing but nothing has been concrete or carefully constructed.
105. But there is a more serious issue why WM may not care for her father. Even though she loves him and is motivated partly by past hurts to care properly for him, her psychological profile renders her unfit to have the care of a vulnerable old man. She has neither the patience nor the ability to plan and be reasonable nor the tranquillity to cope with the increased demands of her father. Her volatility in this case has again persisted to the last. She simply would not be a safe long term carer for him.
106. As to contact, the Local Authority proposes to continue the current arrangements for EM and IM to see their father. Up till today, I would say such arrangements are clearly in accordance with his wishes and benefit him. I would have directed they continue. However, today there has been a most alarming development. JM contrary to court orders and contrary to Court of Protection Rule 90 has been taken to see a Solicitor. He has been taken out at a time where I understand he has infections. This can only cause him distress and cannot do him any good at all. So I propose to make it clear, since I have no criticisms of LW, that it is a matter for the discretion of the Local Authority as to what contact can take place, how it can be built up, and when it resumes, and I am prepared to give authority today, and Mr Bowe can draft the order accordingly, for contact to be suspended for all the family whilst the matter is reconsidered and re-evaluated by the Local Authority. That is something I know that would not be opposed by the Official Solicitor.
107. Finance. Clearly the appointment of a deputy is required in this case to sell the home and administer the finances. Whatever WM's business expertise [she has told me she has retired early she has made so much money] she in my view would not be able to resist the temptation to refuse to meet the Local Authority's reasonable home fees and other bills for her father. As they have day to day care of him, a Local Authority deputy is appropriate and I so direct.
108. Passport. JM's passport has been with KJ for the Official Solicitor for some time. It cannot certainly be returned to the family in the light of the history of JM being unlawfully taken to Turkey, and indeed it cannot be returned at all in view of developments today, so it must remain with KJ until I review this matter, as I shall do in due course.
109. Publicity. I said a great deal about that, but I want to make it clear one thing. I regard very seriously any attempt to publicise the case because it would be a cruelty to JM. JM deserves to spend his last years on this earth in peace and serenity.
110. Injunctions. I have already dealt with the injunctions and the appalling behaviour today by the family. I shall continue the injunctions as they are presently drafted to cover violence, threats, intimidation, harassment and pestering of JM and employees of AH and the Local Authority. There should be no removal of JM or encouragement of him to leave AH and no discussion with him, and in particular no removal from the jurisdiction. Having heard WM's threat to 'have' LW for discrimination, it is best to continue all the injunctions in their entirety and to expand them as reasonably suggested by Mr Bowe, and no doubt with the support of Miss Khalique.
111. Review. I need to look at this case again to deal with the passport, to look at progress with contact, to deal with any other relevant matters, and the possibly almost certainly an application to commit IM and WM. I shall list the case today for review with a time estimate of two hours on the first available date after three months, but I anticipate the matter will be listed sooner than that in the light of what I expect to receive from the Local Authority. I shall direct today all parties to lodge position statements at least 48 hours before the next hearing.
112. The law. In coming to my decisions, I have carefully considered and applied the relevant parts of the 2005 Act. In particular, in evaluating Dr J's evidence, I have applied Section 2 and 3 of the Act. I am satisfied JM cannot make decisions to which I have referred owing to an impairment or a disturbance in the functioning of his mind or brain. In addition, with regard to each and every of the decisions necessary as to residence etcetera, he is unable to understand the information relevant to the decisions, to retain that information, to use or weigh that information as part of the process of making the decision, and to communicate that decision with consistency.
113. There is, I have noted, a confusion of WM's part as to her father's wishes and feelings. Just because he expresses a wish to live with her, about which he is not consistent anyway, does not mean he has a capacity to make a decision on the matter. That may explain her conviction that he is not as affected by his dementia as in reality he is.
114. I have further considered Section 4 of the Act as to best interests, and in particular have considered the past and present wishes and feelings of JM, the beliefs and values which would be likely to influence his decision if he had capacity, and the other factors he would be likely to consider if he were able to do so. I give appropriate weight to his wishes and feelings, but they are not determinative, nor as I say are they consistent.
115. Finally, I remind myself that WM has on many occasions told me her father has a right to family life, misquoting the right to respect for family and private life from Article 8 of the Human Rights Convention as enacted in the Human Rights Act. I am grateful to Miss Khalique for alerting me to the judgments in K v LBX etcetera [2012] EWCA Civ 79. In discussing whether or not the court which will start from the prescribed starting point of a right to family life, Lady Justice Black said this, "…a prescribed starting point risks deflecting the decision maker's attention from one aspect of Article 8 (private life) by focussing his attention on another (family life). In its wider form, incorporating reference to both private and family life, there is a danger that it contains within it an inherent conflict, for elements of private life, such as the right to personal development and the right to establish relationships with other human beings and the outside world, may not always be entirely compatible with existing family life in the sense of continuing to live within the existing family home."
116. I have to conduct a balancing exercise. Should the court interfere with JM's rights? In my judgment, I should in accordance with the law and insofar as such interference is necessary and proportionate. In this case, that interference is necessary to secure JM's safety and welfare and his peace of mind. He will not be well looked after unless he is with the Local Authority and he would not be were he with WM, whatever else she may say, and I order accordingly.
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