Denial of legal aid in Court of Protection cases "a false economy", says judge

Denying individuals legal aid for complex Court of Protection cases is a false economy, a High Court judge has warned.

The case of A Local Authority v M & Ors [2014] EWCOP 33 centred on M, a 24-year-old man who had been diagnosed with autism and a learning disability.

The local authority concerned was seeking orders at to M’s future residence and care. All of the various allegations made by the council were hotly disputed by the mother and father (E and A).

The hearing was originally listed for ten days but took twice as long. In a ruling handed down in August, Mr Justice Baker said that “with hindsight, the time estimate was plainly too short, but the case was undoubtedly extended by the fact that E and A were representing themselves”.

With the parents acting in person in a complex hearing, the court had to relax a number of its usual procedural rules, he added.

E and A complained that, notwithstanding the efforts of the court, they had been unable to compete with the “limitless public funding and resources” at the disposal of the local authority and the Official Solicitor (who was M’s litigation friend).

Counsel for the Official Solicitor said the other parties had recognised that the litigation would be an arduous process and had afforded the parents substantial assistance.

E did not wholly share this view of the degree of cooperation provided by the other legal teams, claiming that they “wanted to appear to assist us throughout the trial” and that the level of cooperation tailed off as the trial progressed.

Mr Justice Baker said, however, that his impression was that E and A were afforded a high degree of assistance by the other legal teams throughout the hearing.

He added: “Overall, I cannot recall a case in which litigants in person have been assisted by the court and the other lawyers to the extent provided in this case. I am satisfied that as a result E and A, and indeed M, have received a fair hearing, but this was only achieved at the cost of a significant lengthening of the proceedings.

“One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy.”

On the case itself Mr Justice Baker said the court acknowledged the enormous demands placed on anyone who had to care for a disabled child. He accepted that E and A were deeply devoted to their son.

“Every reasonable allowance must be made for the fact that they love their vulnerable son and want the absolute best for him,” the judge said. “Every reasonable allowance must be made for the impact of these burdens and strains when assessing allegations about the parents' behaviour. However, having made every reasonable allowance for those factors, I find the behaviour exhibited on many occasions, by E in particular, was wholly unreasonable.”

E’s friends admired her determination to stop at nothing to get M the care, support and long-term achievement he deserved. However, the judge found that “unfortunately” this determination had led E to relentlessly criticise, occasionally bully and repeatedly complain about those who did not follow her bidding. “Throughout this hearing she has repeatedly accused the local authority of pursuing its own agenda. I find that it is she who has an unshakeable agenda to follow her own course in pursuit of her own beliefs about M's condition and how it should be treated.”

He also rejected the mother’s allegations of multiple conspiracies as “fantasy”.

Mr Justice Baker summarised the critical facts in the case as follows:

  • M had autistic spectrum disorder. There was no evidence that his autism was caused by the MMR vaccination. His parents' account of an adverse reaction to that vaccination was fabricated.
  • The mother had also given many other false accounts about M's health. “He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease. As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions.”
  • M did have a dental abscess “for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering”.
  • E had also “insisted that M be subjected to a wholly unnecessary diet and regime of supplements”.
  • Through her abuse of her responsibility entrusted to her as M's deputy, E “has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived”. This behaviour amounted to factitious disorder imposed on another.
  • E had a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.

The judge said he agreed that the parents would have an enormous amount to offer their son if they could work in collaboration with the local authority social workers and other professionals in M's best interests.

“I have not given up hope that this may be achieved,” he added. “Such an outcome would be manifestly to M's advantage. It will not be achieved, however, unless E and A – in particular, E – can demonstrate a fundamental change of attitude. If this does not happen, this court will have to take permanent steps to restrict their involvement in his life.”

Mr Justice Baker concluded that he was unable to make final orders at this stage of the proceedings.

He decided that M should continue to reside at N House as a short-term option while decisions are taken as to where M should live in the medium-term pending a long-term move into supported living.

The judge said M should continue to have supervised contact with his parents twice a week as he had done during the course of the hearing.

A decision on the issue of appointing a deputy for M’s welfare was adjourned until a later hearing.