An article about a terrifying judgement of the Court of Protection in which a man’s daughter was imprisoned for contempt for taking him to see a lawyer to challenge his placement in a care home by the local authority. And for witchcraft. Yes really, witchcraft.
If your local council places you in a care home and you or your family object can you talk to them about it? Can you talk to a lawyer? Or would that be contempt of Court punishable by imprisonment? What if your family helps you? Would they be in contempt?
Most reasonable people would say a resounding “No” to the question of Contempt. Step forward HHJ Cardinal – the circuit judge with the courage to say “Yes!”
The case of SCC v JM, and ors is reported on Mental Health Law Online and is an anonymised public judgement. The Witchfinder publishes no information other than what is already in the public domain. The document has been missed by the national media so far, which is a shame as it is a horrifying and clear cut scandal. The case concerns an elderly man, JM, who suffers from Alzheimer’s syndrome and has been placed in a care home. There is apparently some form of dispute about his residence, which has led to litigation in the Court of Protection.
JM has three children who disagree with the local authority. This is not uncommon. Your humble correspondent the Witchfinder is a law student who often advises such people pro-bono. About 75-90% of the time the local authority is right. Roughly 25-10% of the time there is something to be said for the other side. About 10-5% of the time it is a horror story.
The disturbing thing about this case is that, according to the judgement, an order was made by Judge Owen on 19/05/2012 that prohibited the respondents (the old man’s children) from helping the vulnerable elderly man challenge the placement – “the respondents should not encourage JM to leave or to ask to leave his placement, or discuss with him the possibility of moving back home, or remove him from the jurisdiction of the court.”
The old man’s daughter WM, it is not disputed, breached the order. To quote paragraph 7 of HHJ Cardinal’s judgement, “First, on 12th April WM and IM took JM to see a solicitor in Birmingham to discuss his placement.” Say what? Taking a man who is detained against his will, and his family’s will, to see a solicitor is contempt of Court?
The importance of this statement cannot be underestimated. It is indisputable that the mentally ill or disabled may well be unable to litigate sensibly. Attempting to do may well cause them distress. In no other context however, do we deny people the right to appeal. Turning away from Mental Capacity for a moment to the Mental Health Act, figures show that in 2011-2012 the number of people who appealed against being sectioned was 25704.
Of those 7559 were discharged by their doctors before a hearing could occur. Of the remainder 10% succeeded. In short around 36% of people who were sectioned and appealed were let out. The other 2 thirds were not. 36% is a sign of a robust appeal system. It works. The people who were not released were probably too ill. However, mad or not every single one of those people was entitled to a lawyer on legal aid. The idea of preventing people from appealing is unthinkable.
The order of Judge Owen is plainly unlawful. It may well be that a person detained under the Mental Capacity Act is too ill to be released. It may well be that they lack capacity. However, neither point can justify preventing their access to the mechanisms that would enable them to challenge their care. This would be a plain breach of their article 6 rights. The point is well made by the Grand Chamber of the European Court of Human Rights in Stanev v Bulgaria. The case held that Mr Stanev’s Article 6 Rights were breached because he did not have direct access to a court to apply for a restoration of his legal capacity.
At paragraph 245 the Grand Chamber of the European Court says, “the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity.” It is the highest Court in Europe.
For those of a Eurosceptic persuasion, the domestic English Courts have held exactly the same for hundreds of years. In Re Cumming  1 De GM&G 537 Knight Bruce LJ said at 557 – “It is the right of an English person to require that the free use of his property, and personal freedom, shall not be taken from him on the ground of alleged lunacy, without being allowed the opportunity of establishing his sanity or denying his insanity before a jury as a contesting party, not merely as a subject of inquiry”
In short the protective jurisdiction of the Court has been misused. It may well be that for some people access to a lawyer will be futile and distressing. We insist upon their right nonetheless not to distress them but for the benefit of those great many people whose lack of capacity may be open to legitimate question.
In that regard alone the order of DJ Owen and the judgement of HHJ Cardinal are both a matter of shame and disgrace. These individuals are not fit to be on the bench. They are not fit to be in the legal profession at all.
However, the judgement gets more and more bizarre. At paragraph 9 it is recorded that WM left a threatening voicemail for a social worker. She said, “I wish you all the bad luck. I put curses on you. I’ve got friends in [the area] who are capable of doing that and I will get my own back. I hope you all end up where my dad is and you all end up cursed. You will all be ill. You all deserve to be cursed”
Don’t get me wrong. Social workers are people too. They deserve to go through their daily working life without being threatened or the subject of abuse. However the reality is that they work with the most vulnerable in society. Here is a woman, plainly distressed about her father’s placement. She is equally a person so powerless, so marginalised, that the only threat she can make is to use magic, that is witchcraft, curses, evil spells.
Annoying? Yes. Wrong? Yes. But this is not an actual physical assault.
This pathetic behaviour of a distraught woman, even though persistent and distressing for the thin-skinned social workers is surely, surely not grounds for imprisonment. The Witchcraft Act was repealed in 1951 and even that law had been a shadow of its former self since it was gutted in 1735 (At this point the Witchfinder sighs and reminisces).
At paragraph 10 the judge relates that the woman gave her father a cross to protect her from evil. This too is grounds for imprisonment in the mind of HHJ Cardinal.
The judge relates that the incident made JM cry. Such statements must be treated with caution. He may have cried at his daughter’s gift and her statements – but tears at his wretched state are not the same thing as tears caused by abuse. Steven Neary cried after being locked up by Hillingdon Council – but it was not because his father Mark challenged his detention. Should Mark Neary have been stopped from talking to Steven Neary about his imprisonment?
Let it not be said that the Witchfinder is an unthinking critic of the Family Courts. I once wrote an article elsewhere praising Wall LJ. I am happy to also call Ryder J, Mostyn J, Jackson J and Coleridge J good and decent men. They are amongst the judiciary’s A-List.
Cardinal on the other hand, is very much a Z-Lister. Was it in Birmingham or Royston Vasey that this judgement was handed down?
This is the same HHJ Cardinal previously criticised for preventing a man speaking to his Member of Parliament.
Let us be clear – nothing in this article excuses or justifies the children of JM for their discourteous, abusive and threatening behaviour to care workers, some of whom are poorly paid. Nevertheless I am reminded of an incident in American History. During the time of Senator Joe McCarthy, at a Senate hearing in which he questioned a young and defenceless man he was interrupted by the US Army’s Lawyer Joseph Nye Welch. Welch, famously, said this – “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”
It is with great reluctance then that the Witchfinder says the same to DJ Owen and HHJ Cardinal. For shame Sir. For shame Your Honour. Have you no sense of decency?