Category Archives: Tracy Ling

Adoption – How far will Local Authorities go?

North East Lincolnshire social workers severely criticised by judge.

Three North East Lincolnshire social workers have been the subject of severe criticism in a judgment by His Honour Judge Jack which has just been published on BAILII.

In June 2014, North East Lincolnshire were seeking a care order with a plan for the child to be adopted.  The judge threw out the application.  The judge stated that he had, “Never in over 10 years of hearing care cases, taken the view as I did in this case, that the local authority witnesses were visibly biased in their attempts to support the local authority’s case”.  He went on to say “It is very unfortunate.  I hope I never see that again.”

Background

The comments were made in an approved judgment from Judge Jack in an application for a final care order with a view to placement for adoption of a little boy, J, who was approaching three years old.

His mother had died and the father was not in a position to care for J.

The maternal grandparents, Mr and Mrs G, had put themselves forward as carers for J.  They had had extensive involvement with him since his birth.  On numerous occasions, the local authority had placed J in their care.  They regarded them as a safe pair of hands.

Mr and Mrs G had previously had J’s elder brother, R, placed with them by the same local authority.  They had obtained a residence order for R in 2008.

Mr and Mrs G were assessed as potential carers by four social workers including Neil Swaby, Rachel Olley and Peter Nelson.  All the social workers were employed by North East Lincolnshire Council.  All the social workers decided that the grandparents could not be trusted to care for J despite their involvement with the child from birth.

The social workers were cross examined by Nigel Priestley, solicitor for the grandparents, on their reports and the judge formed a negative view of what he had heard.

In his judgment on the evidence of Neil Swaby, His Honour Judge Jack stated:-

“He was very begrudging indeed in his evidence and I have a clear impression that he was, for whatever reason, whether it was his own inclination or instructions from above, intent on saying only things which supported the local authority’s case and was very reluctant to make any concessions which would undermine that case”.

With regard to Rachel Olley, the judge stated that, “Her evidence was totally discredited in my view.”

He went on; “I had the very strong impression that the local authority witnesses were intent on playing up any factors which were unfavourable to the grandparents and playing down any factors which might be favourable.  In these circumstances, I found it very difficult to give any weight at all to their evidence.”

Commenting on the evidence of Neil Swaby and Rachel Olley, he said,“I took the view, as I have already indicated, that the local authority’s case was wholly undermined.  Their concerns appear to be grossly overstated in order to try and achieve their ends.  I have never, in over 10 yeas of hearing cases, taken the view as I did in this case, that the local authority’s witnesses were visibly biased in their attempts to support the local authority’s case.  It is very unfortunate and I hope I will never see that again”.

Having reached this decision, His Honour Judge Jack sought a further statement from Social Services about their future plans.  A further North East Lincolnshire social worker, Peter Nelson, was asked to prepare a report.  The judge concluded his report “smacks to me of the same bias that I regrettably have to say I saw from Neil Swaby and Rachel Olley”.

The judge determined that J’s best interests lay in placing him in the care of Mr and Mrs G under a child arrangements order.

Nigel Priestley, Senior Partner at Ridley & Hall Solicitors who represented Mr and Mrs G in the proceedings said:-

“I have been a child care lawyer since 1985.  I have never, in almost 30 years of child care practice, heard a Judge make comments of this nature.

“My clients were assessed by a total of four separate social workers.  Each of the assessments was negative. It is appalling that the local authority social workers could have behaved in this way.

“It was obvious to me that the assessments were seriously flawed.  One social worker appeared to have cut and pasted a section of his report from the previous social worker’s report.

“In addition to these negative assessments,  the children’s guardian, supported the local authority’s application for a final care order with a care plan for placement for adoption.

“It is quite clear to me that, without the decision in Re: B-S which highlighted the need for every realistic option to be considered before a placement order is made, the grandparents would have been in an impossible position.  They were determined to show that it was in J’s best interests to have their grandson placed in their care.

“His Honour Judge Jack is a very experienced judge.  In his judgment he made it quite clear that he “took the view that on the balancing exercise that I would have to undertake in accordance with the care of Re B-S then the positives for J in remaining within his own family far outweigh the negatives that would follow from adoption, and far outweighed any negatives which would be brought about by him remaining within this family.”

“I am delighted to say that J is thriving in his grandparents’ care!”

Recently Sir Martin Narey and the Adoption Leadership Board issued a “myth-buster” guide with regard to adoption.  This guide is designed to encourage local authorities to once again promote adoption.

The message from this case is that North East Lincolnshire required no prompting.  It would seem that they were determined to proceed down the route of adoption, whatever the cost to the child or his grandparents.

Ridley & Hall are one of England and Wales leading firms supporting ‘family and friends’ carers (kinship carers) and in challenging local authorities.

Nigel Priestley was named Kinship Care Legal Champion in 2013 by Grandparents Plus and in 2010 was awarded the Solicitor of the Year in Private Practice in the Law Society Excellence Awards

For further advice on Adoption matters, please contact the Kinship Care team at Ridley & Hall on 01484 538421 or via e-mail.

See also BBC News:

http://www.bbc.co.uk/news/uk-england-humber-30234549

Nigel Priestley Writes for The Guardian!

Nigel Priestley writes on the benefits of kinship care for the Guardian ahead of the Adoption UK AGM this weekend.

The full article on The Guardian website can be viewed here.

Nigel Priestley is a specialist solicitor at Ridley & Hall and the Adoption Legal Centre. For any legal advice regarding adoption, please contact a member of the team on 01484 538421 or by e-mail.

President of the Family Division’s Anger at Legal Aid Cuts

The President of the Family Division, Sir James Munby, was faced with a case where the parents wanted to oppose the removal of their child from their care and place him for adoption.  In circumstances like this, care proceedings would be issued and funding available for the parents, however, this is a case where care proceedings were concluded in November 2012.  When the care order was made there were concerns about the child remaining with his parents as both had learning difficulties, however, following an intense assessment and package of support the local authority’s plan was for the child to remain in his parents care with further assessments carried out in relation to the extended family.

One aspect of a final care order is that it gives the local authority parental responsibility for the child, alongside his parents, however, if they had concerns about the care the child was receiving from his parents then they had the power to remove him from his parents care.  Unfortunately in March 2014 the local authority had concerns and therefore gave the parents one month’s notice of their intention to remove the child from their care.

In these circumstances there is no automatic right to funding.   The parents need to provide details of their income to see if the are eligible for funding.  In this case the parents were £34.64 over the threshold set by the Legal Aid Agency.

This is the issue that the President had; proceedings had been brought by the local authority to separate the parents from their child, as they were not care proceedings the parents were not eligible for funding automatically and their income was too high for them to qualify for legal aid.  The parents had the option to pay for a solicitor privately but their limited income made this impossible.  The local authority had funding in place to instruct a solicitor and the child was granted funding automatically as well as he has no income.

In his judgment the President stated;

“What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation…..In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the [European convention on human rights]; it would be a denial of justice. The child is also entitled to a fair trial…..Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.  This is, it might be thought, both unprincipled and unconscionable. Why should the state leave it to private individuals to ensure that the state is not in breach of [its] obligations under the convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

Samantha Sanders, a lawyer at the Adoption Legal Centre, commented

“This is unfortunately something we are seeing on a daily basis; clients who require our help and support to enable their families to stay together, yet without the support of legal aid they are unable to fund it themselves.  More and more solicitors are doing the work on a pro bono basis with no guarantee that funding will ever be made available.

New guidelines were brought in so that a decision is made as soon as possible for a child, yet if funding is not available for the parents to challenge the decisions made in relation to their child, it does questions the validity of the decisions made by the court and whether they are compatible with Article 6 (right to a fair trial) and 8 (right to a family life) of the Human Rights Act.  I believe that this is an issue we will be seeing more and more as time goes on.”

The judgement of the President, Sir James Munby, in this case can be found here.

The team at the Adoption Legal Centre are specialists in advising both adopters and potential adopters. We can help when adopters are facing challenging problems. If you require legal advice, please contact us on 01484 538421 or via e-mail.

Adoption Numbers Show Rise to Record High

The Department of Education has recently announced a record number of children adopted in 2013/14.

Full details can be found in this BBC news article.

Nigel Priestley, specialist solicitor at Ridley & Hall and the Adoption Legal Centre commented,

“It‘s good news that adoption levels are at an all time high, meaning the children are getting the care and attention they so desperately need. However, there is clearly more work that needs to be done by the government to ensure that children over 4 years are also receiving this care. The key increase in adoptions has been in the 1-4 years age bracket.

“The Government must also make sure that more specialist support is available for adopters. The increase in adoptions will almost certainly lead to increased demand for support.”

The team at the Ridley & Hall’s Adoption Legal Centre are specialists in advising both adopters and potential adopters. We can help when adopters are facing challenging problems. We advise about what they need to do and what steps they should take to obtain support and advice when they face difficult problems.

For more advice with regard to any adoption issues, please contact us on 01484 538421 or by e-mail.

Battling Immingham Grandparent’s High Court Win – North East Lincolnshire Ordered to Pay £43,000

Immingham grandparents have won a legal challenge against North East Lincolnshire Council. The fight was over the failure of social services to provide  financial support after they took on the care of their grandchild.

In 2008, Mr and Mrs G were asked to care for their grandson by North East Lincolnshire social services. Social services had been involved with the child for 2 years but repeatedly failed to step in to protect him.

Their grandson was just 4 years old at the time. Social services asked Mr and Mrs G to look after the child for 3 months. They then transported him to their house. Three months passed. Social services again asked them to look after the child for a few more weeks.

Around four months after social services had placed the boy with Mr and Mrs G, the social worker asked them to obtain a residence order. They never told Mr and Mrs G that they would be entitled to apply for residence allowance.

Five years passed before the council were challenged to face up to their responsibilities.

It was not until they went to see specialist kinship care solicitors, Ridley & Hall in Huddersfield, that they discovered that they were entitled to be paid residence allowance.

Commenting, Rebecca Chapman, a specialist solicitor at Ridley & Hall said:

“The council had more than enough grounds to start care proceedings. They saved themselves a fortune placing the child with my clients. Care proceedings are costly and paying foster carers gets very expensive.

“My clients asked the council to conduct a residence order allowance assessment but the local authority did not respond to their request.

“Mr and Mrs G then instructed me and the council stated that Mr and Mrs G were not eligible for an allowance.

“The local authority were asked to review the assessment but never responded. High Court proceedings were issued. The council did not provide a response to the proceedings.

“The High Court in Leeds has today ordered North East Lincolnshire to make a back payment of £43,000 and to pay Mr and Mrs G a weekly allowance.”

Mrs G said, “This is all my birthdays and Christmases on one day! It’s a fantastic result. We couldn’t have done it without Ridley & Hall.

“Like many grandparents we stepped in when the council asked us to help out. When the social services then asked us to get a court order we did as we were told. The council never told us that we should have been paid an allowance.

“My husband is 69. He’s long retired. We are pensioners. We had not planned to take on the care of a child in his retirement and have spent our savings on looking after my grandson. At times we’ve found it difficult to meet the financial demands of raising a child at this time in our lives.

“Add to that, the fact that unfortunately our grandson had some serious behavioural difficulties, and I can truthfully say it’s been a challenging time.

“We were struggling to cope with our grandson’s behaviour. The local authority had failed him and then they just left us to it.  Our lives have been made more difficult with the council’s lack of action.  It’s vital that grandparent carers like us get specialist legal advice.

“The council totally failed to fulfil their duties both to us and our grandson.”

Rebecca Chapman said “It’s disappointing for Mr and Mrs G that they had to go to the High Court to compel the local authority to do what they are already supposed to do. The local authority failed this child.

“There was a bizarre lack of response from the local authority in relation this claim. Nobody from social services even attended the hearing. As a result of the council burying their heads in the sand, the judge has ordered North East Lincolnshire to pay my clients’ costs. It’s the hard pressed council taxpayers who have ended up with a large bill of legal costs.”

If you would like any more information about this or any other kinship care issue, please call Ridley & Hall on 01484 538421 and ask to speak to Rebecca Chapman.

Kinship Carers Meet in Westminster to Demand Equal Rights to Adoptive Families

“We take care of kids in crisis too!”

Nigel Priestley, Senior Partner at Ridley & Hall, joined over 50 Carers at the Time to Care summit held at Methodist Central Hall in London

Commenting he said “It was inspiring to meet the unsung heroes who are providing the care that many damaged children desperately need. It was encouraging to find that the Grandparents Plus recent poll showed that the public backs charity’s call for paid leave for family carers and end to ‘hierarchy of care’.”

Grandparents Plus brought over 50 grandparents and family carers from across England and Wales for a summit with the Children’s Minister, Edward Timpson MP and other MPs and peers to challenge the government on their treatment of kinship carers who are bringing up children as a result of extremely difficult family circumstances.

The summit – #timetocare about kinship care – was held as the charity published new poll findings to show the public overwhelmingly supports their call for grandparents and kinship carers who give a permanent home to children to be entitled to the same employment rights as adopters which would give them paid leave for the first time, with 76% in support, 41% strongly supporting. Polled grandparents who care for grandchildren are also overwhelmingly in favour with 88% in support.

A hidden army of 200,000 family or ‘kinship carers’ are raising up to 300,000 children across the UK. This could be because parents have died or are ill, because of parental drug or alcohol misuse, abuse or neglect, domestic violence, imprisonment or a combination of factors. The charity has calculated that it would cost taxpayers £12 billion a year in care costs alone if those children were in independent foster care. Yet kinship carers are currently not entitled to financial or practical support from their local authority unless the children are “looked after” children.

Commenting, Nigel Priestley said “It was great to find the support many grandparent carers receive from being part of kinship care support groups. There were carers from all over England and Wales who showed a fierce determination to ensure that local authorities recognise the important role they are playing.”

Once again the critical importance of carers having specialist legal advice was clear. Some of those who had been sent by their local authority to see a solicitor found that the person they saw simply didn’t understand the legal responsibilities of councils.

Fore more information, please contact us on 01484 538421 and ask to speak to a member of the kinship care team.

Battling Immingham Grandparents Win First Round in Fight for Financial Support

Immingham grandparents have been given permission to bring a legal challenge to North East Lincolnshire.  The fight is over the failure of social services to provide any financial support after they took on the care of their grandchild.

Background

In 2008, Mr and Mrs G were asked to care for their grandson by North East Lincolnshire social services.  Social services had been involved with the child for 2 years but repeatedly failed to step in to protect him.

Their grandson was just 4 years old at the time. They asked Mr and Mrs G to look after the child for 6 weeks.  They then transported him to their house. Six weeks passed.  Social services again asked them to look after the child for a few more weeks.

Around four months after social services had placed the boy with Mr and Mrs G, the social worker asked them to obtain a residence order.

Commenting, Rebecca Chapman, a specialist solicitor at the Huddersfield based Grandparents Legal Centre, part of Ridley & Hall Solicitors said, “The council had more than enough grounds to start care proceedings.  They saved themselves a fortune.  Care proceedings are costly and paying foster carers gets very expensive.

“Mr G is 68.  He’s not long retired and had not planned to take on the care of a chid in his retirement.  He and his wife are on a very low income.  They found it difficult to meet the financial demands of raising a child with emotional problems.  Unfortunately their grandson had some serious behavioural difficulties which resemble an attachment disorder and ADHD.  My clients think the council waited too long to act.

“At no point did the council offer any financial support to Mr and Mrs G, even though they had asked my clients to care for the child.  They had a duty to tell Mr and Mrs G that they were entitled to a residence allowance – but they stayed silent!

“Five years passed before the council were challenged to face up to their responsibilities.

“My clients asked the Council to conduct a residence order allowance assessment but the local authority did not respond to their request.

“Mr and Mrs G then instructed me and after a very detailed letter was sent, the local authority conducted the assessment.  The assessment appeared to be factually incorrect and stated that Mr and Mrs G were not eligible for an allowance.

“The local authority were not willing to review the assessment and high court proceedings were issued.  The high court in Leeds has now granted permission for the local authority’s failed to conduct an adequate assessment to be considered by a judge.”

Mrs G said “Like many grandparents we stepped in when the council asked us to help out.  When the social services then asked us to get a court order we did as we were told.  The council never told us that we should have been paid an allowance.

We were struggling to cope with our grandson’s behaviour.  The local authority had failed him and then they just left us to it.  We are pensioners having to cope with unexpected financial demands.  Our lives have been made more difficult with the council’s lack of action.  It is a total failure to fulfil their duties both to us and our grandson adequately.”

Rebecca Chapman said “It is disappointing for Mr and Mrs G that they have to go through the process of a judicial review in order to compel the local authority to do what they are already supposed to do.  The local authority’s actions are not consistent with their duties to this child.

“There has been a bizarre lack of response from the local authority in relation to this claim.  This means that they will be sleep walking into a hearing which could end with a large bill of legal costs.”

For more information kinship care, please contact Rebecca Chapman at Ridley and Hall Solicitors either by e-mail or on 01484 538421.

Manchester Grandmother Receives Out of Court Settlement for Support

A 63 year old grandmother has received £4,400 from Manchester City Council in an out of court settlement in a battle to get support for her grandchildren.

In 2007 the grandmother took on the care of her two grandchildren, who were at the time aged 8 and 10, to avoid them having to go into foster care.  She has continued to care for the children for the last 7 years.

The grandmother had applied for and been granted a residence order in respect of the children. She was challenging the council as they were not providing her with any financial support to help her to meet the children’s care needs.

The grandmother commented, “Things came to ahead in January 2007. The social worker was at the hospital with the children whilst they were being checked over for signs of physical abuse. The social worker contacted the children’s father. She attended the hospital. The social worker rang me and asked me to care for the children. It was made clear if I did not take the children they would go into foster care. The social worker took all three of my daughter’s children to my home.

There was a further meeting on the 20th January 2007. The social worker directed what would happen with the children – one would go and live with a relative, my granddaughter would stay with me and the other granddaughter would go back to live with her father. She only lived with her father for approximately four or five days before she was brought to me and left in my care. I contacted social services about this and was advised to keep her with me.

Social services directed what would happen with the children but I was not given any financial assistance and was just left to get on with it. Taking on three children was a massive commitment and I was left struggling financially. I only became aware that there was something that could be done to help with my situation after speaking with friends who had been in a similar situation. They urged me to seek specialist advice.”

The grandmother contacted Ridley & Hall. They corresponded with Manchester City Council which led to a lump sum offer being made by the council.

The grandmother commented, “It has been a year long battle. I didn’t know my rights and Social Services never told me about their duty to pay a residence allowance. I am delighted with the pay out. My grandchildren can now participate in activities and socialise like other children their age. I can now afford to send my granddaughter on her school trip.”

Ms Ling of Ridley & Hall said, “All the children were “looked after” as the social worker had accommodated them with my client which triggered section 20 of the Children Act 1989. The agreement my client made with social services that two of the children would be accommodated with our client was as an alternative to the children being taken into foster care with strangers. My client subsequently applied for a residence order.  We firmly take the view that a residence order allowance should be paid in these circumstances.

I am very pleased with the outcome. Like many family and friends carers who suddenly find themselves in this position, this grandmother found herself in difficulty due to the lack of support from the council.  It is important people get the right advice when they need it.”

One local authority has today reported that in their area the council’s social services department have taken 12% more children into care this year and are looking desperately for more foster carers.  Their fostering department is already “overwhelmed and underfunded”.  There are now 855 children in care up from 765 at the same time last year.

Local authorities are increasingly relying on family and friends carers to fill the gap by the shortage of foster carers. Fostering Network reports that nationally there is a shortage of over 7,500 foster carers.

Ms Ling commented, “In these circumstances, local authorities should value kinship carers and pay them appropriately.”

For more information contact Tracey Ling on 01484 538421.

“Stalinist” Response to Groundbreaking Report Which Challenges Government Approach to Adoption

On Wednesday 9th April 2014, the Department for Education launches a groundbreaking report on adoption. The University of Bristol was commissioned to report on adoption breakdown. The report’s title is now “Beyond Adoption: challenges, intervention and adoption disruption”.

(See also University of Bristol website: Report reveals adoption breakdown rate and the experiences of adoptive families in crisis)

Commenting on the report and the events surrounding its launch, Nigel Priestley, who was a member of the DfE advisory group on adoption breakdown, commented:

“The report confirms that adoption can work – but for many adopters, better support is needed. This is groundbreaking research. It identifies:

  • When adoptive placements do break down, the consequences are severe.
  • The difficulties and stresses that lead to disruption are often known and experienced by the family over many years.
  • The long term consequences of early abuse and neglect can have a profound impact on the young person and their adoptive family. This is compounded where support is patchy, poorly coordinated and ineffective.
  • There needs to be an urgent investigation to establish a more robust framework for multi-agency coordination and cooperation building on the current developments in improving adoption support.  This must include local authorities, health, education and the voluntary sector.  These have resourcing implications.
  • The urgency in ensuring that adopters and children are not left alone when they encounter the kinds of difficulties so clearly identified.
  • The importance of prospective adopters receiving full information on the child being placed with them.
  • The Report contains graphic interviews with adopters who have faced significant challenges as they have tried to parent the children whom they have adopted.”

Mr Priestley went on, “The stories told by both the adopters and the children who have been adopted ring true in my own experience. I have represented many adopters who have faced colossal challenges with the children they have adopted .They include chief executives of major local authorities, church ministers, a member of a fostering and adoption team, a consultant paediatrician, and a former deputy head teacher. All were committed parents.

“They all thought they were realistic about adoption but found they were facing insurmountable problems. For example one had to sleep on the landing to stop one child he and his wife had adopted from going into his sister’s bedroom for sex. Both children were aged under 8 years old. Many of the children had a significant attachment disorder.

“Adopters need to be told the truth about the children placed with them. It is critical that as the Report recommends there is coordinated and properly resourced support for adopters.”

Response of Department for Education – don’t engage with the Press!

The Report was due to launched on 20th March 2014 at a British Association for Adoption and Fostering Conference.

Nigel Priestley said “I have been pressing the DfE for a launch date. I understand that at the BAAF conference the DfE imposed strict conditions on the presentation from University of Bristol.

Pressed further about a launch date, the DfE have now sent out the following e-mail to members of the advisory group: “I thought you would find it helpful to know that the Adoption Disruption Report is scheduled for publication next Wednesday 9th April. We would be grateful if you could avoid engagement with the press about this report.  If members of the press do contact you please can you inform Anna Rutter in our Press Office?”

“I am puzzled by what appears to be an almost Stalinist approach to news management simply because DfE appears to think that its findings do not fit the government’s own agenda.”

Some of its conclusions help the government’s strong support for adoption. The report confirms:

  • Disruptions in adoption placements, where the child returns to care after being legally adopted, have been subject to significant speculation over many years.   The rate is much lower than expected.
  • The research supports the widely held view that adoptive placements provide children with stable, secure loving homes when they cannot live with their birth parents.  The UK has established a system for ensuring children severely at risk can be placed into adoptive homes when local authorities and the courts agree. This research identifies that this continues to be the right policy.

The DfE appears to be concerned about how the report’s conclusions are received. The Children and Families Act 2014 which strongly promotes adoption has received royal assent.

The report has come at a difficult time for the government:

  1. Adoption is under scrutiny in the courts. The Court of Appeal’s decision in Re: B-S (Children) [2013] EWCA Civ. 813 emphasises that the severance of family ties inherent in an adoption without parental consent is an extremely draconian step and one that requires the highest level of evidence. This decision has had a significant impact on courts throughout the country.
  2. The Child and Adolescent Mental Health Service (CAMHS) is not fit for purpose. In light of the concerns which have been expressed by the Chief Medical Officer and others about both the extent to which children and adolescents are affected by mental health problems and difficulties with gaining access to appropriate treatment, the Health Committee has decided to undertake an inquiry into children’s and adolescent mental health and CAMHS. Support from CAMHS is vital for many adoptive families.
  3. Government cuts have had a significant impact on early intervention family support workers who would be the first line of support for beleaguered families.

Nigel Priestley is Senior Partner at Ridley & Hall Solicitors and an advisor with the Adoption Legal Centre. For further information please contact the Adoption Legal Centre via phone on 01484 538421 or via e-mail.

Landmark Case on Deprivation of Liberty

A Supreme Court decision last week has radically changed the way that we must treat our most vulnerable citizens.

In society some people need restrictions placed on them to keep them safe. For instance, it probably seems right that a frail elderly lady with advanced dementia, who is no longer able to make basic decisions such as “am I hungry?” or “am I cold?” should be moved to a care home where she can be looked after and kept safe.

However, when do these restrictions amount to a deprivation of liberty? Most people would be extremely unhappy if they were forced from their home into a care home where they were always under the watchful eye of care home staff. So, at what point, and in what circumstances, is it right to place restrictions on an individual’s liberty?

The Court of Protection, which was established in 2007, is frequently asked to consider this issue. If someone is found to be deprived of their liberty then their circumstances must, by law, be kept under review to ensure that restrictions are kept to the minimum and are in the person’s best interests.

Last week the Supreme Court handed down a hugely important judgement which clarified the position as to what amounts to a deprivation of liberty. The case was P v Cheshire West and Chester Council [2014] UKSC 19.

Baroness Hale outlined the key factors which indicate a person is being deprived of their liberty. They are:

  1. The person concerned was under continuous supervision and control; and
  2. They are not free to leave the placement.

In terms of leaving the placement this is in relation to moving to somewhere else to live, rather than just leaving for a day trip!

Factors which were previously, and should no longer be taken into account are:

  1. The person’s compliance or lack of objection
  2. The relative normality of the placement
  3. The reason or purpose behind a particular placement.

Although these reasons may be relevant when justifying the deprivation.

Rebecca Chapman, a solicitor specialising in Court of Protection, from Ridley and Hall Solicitors said:

“This decision is groundbreaking in its recognition of the importance of respecting the human rights of vulnerable people. The concept of liberty applies equally to all people and can no longer be applied on a ‘sliding scale’.”

She went on to add;

“Prior to the Supreme Court judgement the ‘liberty’ of a person was assessed on the ‘relative normality’ of the situation. So people who were mentally disabled and required a lot of restrictions to keep them safe, would be deemed to still have their liberty. This is because this was normal for them, relative to their situation.

This decision places everyone on a level playing field; we should all expect the same level of freedom. But some people should still have their freedom limited to keep them safe. In these situations the judgement now means that the restrictions must be kept under review to ensure they are as minimal as possible and remain in the person’s best interests.”

Rebecca’s conclusion is that;

“This will mean that a huge number of people, not previously thought to be deprived of their liberty, in fact are now so deprived in the eyes of the law.”

To contact Rebecca Chapman, please call 01484 538421.