England and Wales Court of Protection Decisions

(IN THE COURT OF PROTECTION)

		Birmingham Family Courts The Priory Courts 33 Bull Street Birmingham B4 6DS
		15th April 2014

JUDGE CARDINAL:

1. B is eighteen-years of age and suffers from a learning disability and an attachment disorder. She has been in a care home in Derbyshire. I have had the privilege of meeting her. She can be very pleasant, but at times, as will be seen, she can be difficult in her behaviour and finds it hard to control her anger.
2. In the last month or so her behaviour has become more distressed, angry, violent and she has even self-harmed. The local authority would say she was improving in her behaviour for a considerable period of time following final orders in the High Court in the summer of 2013 and it is because of the events that I shall hereinafter relate that her behaviour has so deteriorated.
3. I have already delivered two judgments in her case, both with regard to her father's contribution to these proceedings and in making final orders as to her residence, care package and contact, disposing of the matters in late March and early April of this year.
4. I have not heard at any stage from her father or her grandmother to whom today's proceedings relate and whom I can name as Kathleen Danby. It is said that they both have a very adverse effect upon B. There is a history of their, [particularly father's] dealings with her in care proceedings and under the inherent jurisdiction of the High Court and it was a result of very considerable concern as to the behaviour of father and grandmother that Her Honour Judge Thomas in the Court of Protection and in proceedings before me, which began in August of last year, made the following injunction orders on 10^th of January 2014. She directed this of Kathleen Danby:

"The Second Respondent Kathleen Danby is forbidden to do any of the following, either by herself or by instructing or encouraging another person to do so.

"(a) From approaching or attempting to approach B personally or through instructing and/or encouraging any other person so to do.

"(b) from communicating with B in any way whatsoever, whether in writing or by post, telephone, fax, text messaging, e-mail or any other form of telecommunication or information technology, including internet, video calling (i.e. Skype), whether directly or indirectly through another, save that she may receive a single telecommunication call from B on a loudspeaker and supervised by the local authority their servants and/or agents to take place on the first Wednesday of each calendar month between the hours seven o'clock p.m. and eight o'clock p.m. only in strict compliance with the declarations on the face and the schedule of the order of Her Honour Judge …" (it says "Taylor") that should be "… Thomas of even date (annexed hereto).

"(c) For attending at, entering or attempting to enter or go within J town (the town in which B's placement is situated) either personally or through instructing and/or encouraging any other person to do so.

"(d) From attending at, entering or attempting to enter or go within 100 metres of XCollege, either personally or through instructing and/or encouraging any other person to do so.

"(e) From loitering within a radius of 100 metres of Y placementeither personally or through instructing and/or encouraging any other person to do so.

"(f) From loitering within a radius of 100 metres X College, either personally or through instructing and/or encouraging any other person to do so."

5. This injunction order was personally served on Kathleen Danby on 3^rd of February 2014.
6. Before me today the local authority contends that this Respondent Grandmother, Kathleen Danby, is in breach to a significant degree of the injunction granted by Her Honour Judge Thomas. By an application in an appropriately drafted committal notice the local authority complains of the following points. It says:

"In breach of paragraph 1(b) of the injunction order on or before 28^th February 2014 Kathleen Danby through herself and/or instructed or encouraged another person contacted and/or communicated with B to arrange to meet her 28^th February 2014 at or about 17.27 hours outside the Z public house, next door to Y Placement (the placement).

"2. In breach of paragraph 1(a) of the injunction order on or about 28^th February 2014 at or about 17.27 hours Kathleen Danby met with B at or about 17.27 hours outside the Z public house, which is adjacent to the driveway of B's placement, and passed to B a package, who immediately concealed it about her person.

"3. In breach of paragraph 1(e) on or about 28^th February 2014 at or about 17.23 hours loitered within 100 metres of Y placement with the intention of meeting of B."

7. In support of that application I have read affidavits from Police Constable Christopher Hamilton, Mr A, Ms C, Mr H, Mrs D and Ms B.
8. I have also seen a compelling piece of CCTV recording, made by the CCTV cameras outside the Z public house which plainly shows an older lady meeting B, greeting her with a hug and clearly discussing matters in a very friendly, possibly intimate way. I have watched that video on two occasions.
9. I have seen clear evidence of service of the committal notice, the COP 29 form and the affidavits upon Kathleen Danby giving her fourteen clear days notice of this hearing, so the technical requirements for a committal application have been complied with.
10. It is worth noting too that she has never attended court, as I have said, and has not made any representations at all save that she initially instructed lawyers last summer in these proceedings.
11. I have asked myself whether the Applicant has complied with the requirements for committal and answered that in the affirmative. I have asked myself whether the Practice Guidance issued by the President and the then Lord Chief Justice of 3^rd of May last year has been complied with and in my judgment it has been. This is a public hearing to which all could have attended and a proper notice has been placed outside this court and downstairs in the court's reception area complying with the Practice Guidance of 4^th of June of last year. Anyone who wanted to could have attended this hearing if they wished.
12. I turn to the evidence which I shall divide into three sections: the events prior to 28^th of February; those on 28^th of February of this year and the after-effect.
13. Ms C (the manager of Y placement where B lives) spoke of B's behaviour deteriorating whenever she felt under close contact or under pressure from her father and grandmother. That of course does not in any way prove or even underline the strength of the local authority's case, but it does give a picture as to a possible explanation.
14. She described events that took place on 10^th of February of this year when B became very abusive towards staff, towards her co-resident V and said of herself that she would like to be six foot under, threatening of course to harm herself. So there is clear evidence of deteriorating behaviour in early February.
15. On 24^th of February B was escorted to the bank by her registered care worker, Mrs D. She told me that they were going there to get cash to pay a library fine. On the way there B said she would like to speak to her father on the telephone, although she knew that she was having one call on a supervised basis on a loudspeaker call once a month and she was not due such a call.
16. On leaving the library B gave her the slip and she was missing for many hours until she was eventually traced, I think in the Whaley Bridge area. It seems that she took a rather curious route both by walking and, more particularly, by public transport from [the area of her placement]. She told P.C. Hamilton that she was going to see her mother in Glossop and yet she diverted and went to Chapel-en-le-Frith.
17. What is concerning, although of course that matter has not been proved beyond peradventure to me, is that in going to Chapel-en-le-Frith she would know that for the last three-years her grandmother has attended an annual model railway show there in February and it seems, although I cannot conclude with certainty, that she had some plan to meet her grandmother, whether pre-arranged or no.
18. On 25^th of February, having been returned via Buxton police station, she was questioned about her movements the previous day. The police officer told me she became agitated when difficult questions were asked of her and, again, she became violent towards her co-resident at Y Placement, behaviour that has not been consistent with her behaviour prior to February of this year for some months. She had to be restrained and the officer was constrained to seek the help of other police officers.
19. But events took their serious turn, of which the local authority complains, on 28^th of February. On that day I am persuaded, not on a balance of probabilities but because I am certain, that B had a meeting with her grandmother. P.C. Hamilton has seized CCTV footage from the X public house which shows the road from the pub which is next to the driveway to Y Placement where B lives and he sets out what can be seen very clearly in his written evidence. He says this:

"I viewed the footage in a private office inside the pub. The footage shows a lady, who I can describe as being white, approximately sixty-five-years, approximately five foot four inches in height and had prominent white hair that is collar length. She enters the pub by the front door at 17.21 and camera 13. The footage then shows the lady walked to the rear of the pub and going to the toilets. The lady is then seen leave the pub by the front entrance at 17.23 and stand towards the edge of the camera footage close to the pub car park. At 17.27 B is then seen running towards the lady with arms open wide and immediately hugs the lady who is seen reciprocating. They then stand in the same position for a few minutes during which a car parks, pulling up, parking across the road. The lady and B then walk back up towards the pub entrance and some items are passed between the two." [In fact I think it is one item that I saw]. "The lady is lastly seen handing something to B. The pair split up with B walking over to the car and the lady walked past the entrance to the pub, past the entrance to Y placement."

20. He himself says he never had seen the original picture of Mrs. Danby, so he cannot personally identify her, but for reasons I shall come to it is clear that it is she.
21. What is also clear from that CCTV footage alone is that the lady concerned was loitering, as is complained of by the local authority, in the area nearby to the Y placement, so that of itself is of course partly a breach of the injunction.
22. I have said that this lady is the grandmother of B is absolutely clear. It is clear not just from the intimate way in which the two greeted each other and the passing of items, but because it is clear that B went on to describe the meeting to Mr A as being with her grandmother. For that night she was due to go out to another care home. She had been having difficulties with her co-resident and Mr. A was taking her to a different home for the evening to have time to cool down. He was waiting for a taxi to take them and at 5.30, approximately, he saw B speaking to an elderly woman. When the taxi came he called to her, but she did not initially come. He got in the taxi, it moved slightly along the road, then he shouted for her to come over and eventually she did and she came over to the taxi and got in.
23. He noted that for the rest of the evening that B was "hyper", to use his word, but she said this to him: "I bet you'd like to know who that is." And he said he didn't. "No, that was my grandmother." "Which grandmother?" "The one from Scotland." "She's come all that way?" "She came to see me." It was thereafter for the rest of the night that B kept discussing both her grandmother and her father in considerable detail. Indeed, she had with her that night a DVD that her grandmother had previously supplied to her of her life going to school when she was a young girl.
24. So it would seem that B knew whom she was going to meet and knew precisely what was going to happen and so it is clear, in my judgment, that there had been a pre-arranged meeting. It is beyond mere coincidence that B should be in the street at the very same time as her grandmother from Scotland was in the area waiting too as if there was an appointment to meet. It must have been pre-arranged; it could not be a mere accident.
25. There is further corroboration for it being the grandmother in the evidence of Mr H for he says this on discussing matters with B on 4^th of March.

"I then asked B about her meeting on 28^th of February with her grandmother. B said her grandmother had come to see if she was okay and safe as F had told her grandmother she had previously absconded and been missing. I asked her if her grandmother had given her anything. She said she had not. I said the police had CCTV footage of the meeting and the police have stated that Mrs. Danby handed B an envelope/package which B then concealed in her top/jacket. She said the police were lying about this. She then became agitated and appears to be low in mood. She stated she did not want to talk further."

26. P.C. Hamilton spoke to B on 1^st of March. She denied seeing her grandmother then, though it is plain from what she said both the evening before and to Mr. H that she did. He noted that B's behaviour has been deteriorating, even though, as the local beat bobby, he has noticed that she has become more settled generally whilst at Y Placement-- in other words, it was the events of late February of this year that have made her more volatile and unpredictable.
27. Ms C tells me of further events on 2^nd of March. B absconded again on that date and on 6^th of March she absconded from a holiday in Rhyl in North Wales. She describes the recent behaviour of B as deteriorating and out of character. Evidence that is corroborated further by Mr. H and by Ms B.
28. So it is that in my view I can be satisfied beyond doubt, I am satisfied to the criminal standard of proof, that the breaches of injunction complained of by the local authority are all made out.
29. I am also sure that this grandmother needs restraint. Whether it is she who is motivating the father to behave as he has behaved over the years or whether she is under persuasion from him matters not; what matters is that B is protected.
30. The evidence, as I observed at the final hearing of her future residence and care plans, pointed unequivocally for the need for her to have a period of peace from intervention in her life from her grandmother and her father, hence the final orders that I made.
31. I am sure, too, that the deterioration in her behaviour results from these meetings with her grandmother. Her behaviour has deteriorated; she has self-harmed; she has assaulted staff; she has threatened her co-resident and she has run away. Not in a sense that she disappears by being an hour late, which she does from time to time as is perhaps typical late teenage behaviour, but because she literally runs away and has to be found with the help of the police.
32. Accordingly, I take a serious view of the behaviour of Kathleen Danby and it is plain to me that unless restrained by serious punishment she will simply continue to behave the way she has.
33. I remind myself that the case of Hale v. Tanner sets out that punishment is not the aim of the court, but rather to express its concern at breaches of its orders and the need to effect protection. In those circumstances, in my judgment, there should be a suitable punishment.
34. Miss Cavanagh has reminded me of the options available to me - although of course the local authority has not had the temerity to tell me what to do. I could impose a custodial sentence and then order the case to be listed before me for review. So, I could issue a warrant and then if this lady is arrested or on the review date, as the case maybe, the sentence can be reviewed and it can be reviewed downwards if I have a wrong impression of this lady's attitude and approach.
35. In the circumstances for each and every one of these breaches of the injunction I shall sentence this lady to three months' imprisonment concurrently. I shall issue a warrant for her arrest and list the matter for review, I think in two months' time, unless Miss Cavanagh tells me that it is a wrong date to choose, in which case I shall listen to what she has to say. I shall direct that this lady can come before the court, mitigate and try to persuade me to take a different view if she can justify her behaviour and explain to me what she has done and why it is not as bad as I see it to be.