Let’s talk about court processes: part 2 – ongoing proceedings

Let’s return to our example of P. At the end of my last post, we had got as far as the application being made, mum being notified of this, and a hearing date being set.

So now what?

Well the Official Solicitor will have to consider the papers and decide whether or not to accept the invitation to act as litigation friend. With 6 weeks between papers being issued and the first hearing date, we’d hope that they’ll have made a decision by the hearing date. They will write to the local authority and the court with their decision once made.

In P’s case, his income is benefits only and he doesn’t have significant savings or other assets, so he is eligible for legal aid. The Official Solicitor accepts the invitation to act, and picks a solicitor from their approved list to instruct. That solicitor will contact the local authority solicitor when they have instructions and notify the court that they are now representing P by completing the appropriate forms.

The initial directions given by the Court were the usual first directions meaning there isn’t much to do but notify interested persons, make sure everyone has the contact details of representatives and give mum time to decide if she wants to be a party or not, and take advice if she wishes.

Now some family members like to kick up a fuss, but will then not engage with the court process at all. Frustrating as that is for those of us in the local authority, I get why they do this because going to court feels intimidating. But it isn’t actually that way at all.

But P’s mother is not so easily dissuaded and she fills in her COP5 form saying she does want to be a party and objects to the order sought by the local authority, as expected.

In the run up to the hearing, there will be conversations between the local authority, Official Solicitor and mum (who in this instance hasn’t got a solicitor) about what the next steps in the proceedings should be. If everyone agrees, then an agreed order will be put together, approved by the parties and then sent to the court for the judge to consider.

Now in my experience, it is far more common for orders to be agreed than would seem likely to an outsider. Because the general understanding of court proceedings is that they are adversarial. So we expect arguments, and we expect sneaky tricks like we see on TV. But a lot of that only takes place in entertainment land. And especially in the Court of Protection, agreement is encouraged because at the end of the day everyone involved in the proceedings is working to the same aim: getting the best outcome for P. And even if there is not agreement as to what that looks like, it is usually possible to agree what information the court is going to need before they can make a final decision.

And that is exactly what happens in this (fictional) case. Mum still wants P to return home with him, the local authority still want him to stay where he is, but it is agreed that it is appropriate for mum to be added as a party to the proceedings. Once that is in an order from the court, mum will receive the entire bundle of documents that the court has received by that point. Any future evidence will be sent to mum at the same time it is sent to the court, and she can attend all future hearings. The local authority, as the applicant, will be required to send the papers to mum within a reasonable time period after the order has been made.

In this case, agreement is also reached that before the judge can make a decision, they will need:

– an up to date assessment of P’s social care needs

– information from the local authority about what support P would need to live in the community

– whether living with mum is possible from an occupational therapy basis, and

– a view from the multi disciplinary team as to risk management of P’s destructive behaviour, and any identified triggers for this behaviour

Please remember though, this list is given just as an illustration and what is actually needed will vary from case to case.

It is also agreed that the Official Solicitor will need to see records for the last 3 years from the local authority and care home, so they can begin to form a view as to his needs and interests. They’ll also visit P in his current placement.

Once the local authority have provided the information I have set out, it is agreed mum will then do her own statement setting out what she wants for P, and her reasons and evidence for this view. There is also permission (which differs from a mandatory direction) for the Official Solicitor to file a statement of P’s wishes and feelings, in so far as these are ascertainable.

Once all of the evidence has been exchanged between the parties, there may also be a direction for the parties to have a round table meeting where everyone gets together to discuss any questions they still have or issues that still need resolved. Again, if it can be agreed that more evidence is needed, such as, for example, a capacity assessment by P’s treating psychologist under s49 Mental Capacity Act 2005, or there is another alternative that mum and the Official Solicitor don’t think the local authority have considered in enough detail, then a further agreed directions order may well be filed with the court. If this is the case, then the hearing won’t go ahead so long as the judge is content to approve the order that has been agreed.

In the meantime, whilst this is ongoing, the court can make interim declarations to say that there is evidence that he does lack capacity in the relevant areas, that it is in his best interests to remain where he is until the next hearing, and authorising the deprivation of liberty until the next hearing.

And this cycle may repeat itself a few times whilst evidence is gathered and options are explored until eventually you reach a point where either agreement can’t be reached as to the next steps, or a final order is going to be requested.

But there could well be multiple directions orders before that stage is reached and it is very important that timescales set out in the orders for evidence to be filed are complied with. There will always be situations where a professional goes off sick, or P has to spend a period of time in hospital, or there is a sudden deterioration in P’s behaviour or some other unforeseen circumstances arises and in those cases it is possible to apply to the court to change the timescales (hopefully with agreement from the other parties). But unless the court gives permission for a delay, missed deadlines can result in criticism from the court and the practitioners or whoever being dragged (not literally) into the court to explain themselves.

So top tips for getting through these proceedings would be:

1) don’t agree to provide evidence if you can’t follow through

2) don’t agree to deadlines you can’t keep

3) keep a steady and helpful dialogue between the parties throughout the proceedings

4) run any other processes in the background just like you would normally. Reviews should still be conducted, best interests meetings should still be held and mum should still be involved in all of the discussions just like in any case that wasn’t before the court. Some family members will refuse to engage in any out of court discussions, but that is rare, and in those cases it is even more important for the local authority to be able to evidence that they have been following their usual processes and being reasonable in terms of how they have interacted with family members.

I would also point out that special consideration will need to be given to the fact P’s mother does not have a legal representative throughout the proceedings. The solicitors will be expected to make efforts to explain processes etc to her that they would not make if she had her own legal representation. Because it would be unfair to expect a family member to understand issues and practices that only a relatively small number of specialist lawyers have an in-depth grasp of. But the solicitors on the Official Solicitor’s approved list are well-accustomed to this, and most of us in local authority are familiar with this too.

Next time we will go through what to expect if there is a hearing, and then the concluding part of this series will discuss bringing proceedings to an end, and things to consider at that stage.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority