Father and son case that blew open secret court

Protecting the privacy of society's vulnerable people is vital, within certain limits. By Jerome Taylor

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The Independent Online

Mark Neary was watching his son take part in a music class last week when a thought hit him.

"I was looking at Steven; watching him enjoy the class, when it suddenly came to me," he said. "If we hadn't fought our corner he would be in that hospital in Wales right now. It's like a flashback – all the memories come flooding back."

Just under a year ago a court ruled that Steven, a 22-year-old autistic man from north-west London, had been unlawfully deprived of his liberty when he was taken away from his father and placed in a care home for nearly a year.

Mark fought a lengthy battle to prove that the council was wrong, even as they prepared to move his son hundreds of miles away to a new care home in Wales. He eventually won in a victory that reunited a family and shone a spotlight on the workings of Britain's little known Court of Protection.

The court was set up in 2007 to administer on behalf of some of Britain's most vulnerable people – those who lack the mental capacity to make their own decisions.

Steven may not be able to make crucial decisions about his life, but the memory of being taken away from his father still haunts him. When the court finally ordered his return he would ask his father every day whether he was going to go back to the care home.

"We still have that," says Mark. "He's always asking whether they'll come take him away. It's horrible."

Crucially, his behaviour has improved dramatically since his return. When Steven was kept at the care home he would regularly lash out at staff. The local council insisted that was partially why he needed to be kept under their supervision. Mark argued relentlessly that the only reason he was acting up was because he missed home.

"The positive thing is that Steven is really content now," he says. "He's much happier. He rarely has any instances now. He's back where he belongs and that's important."

Two years ago no one outside of Mark's immediate circle of friends would have known anything about his troubles, or even that Hillingdon Council had acted unlawfully in taking away his son. It was only when i's sister paper The Independent won legal victories allowing the press to attend some Court of Protection hearings that the curtain began to lift on what was once one of Britain's most opaque judicial systems.

The media's campaign to be allowed in to cases of public importance has coincided with an increasing desire by some of the court's most senior judges to push for more transparency. Sir Nicholas Wall – the head of the family division – Lord Justice Munby and Mr Justice Hedley have all spoken out in favour of allowing press into some cases and publishing more judgments. The judiciary denies the court is secretive. They say it is closed to protect the privacy of vulnerable individuals, but more steps must be made to make it more transparent where possible. As a result, the public is more aware of the often tortuous decisions these judges have to make.

In the past 18 months the public has been told of a string of vital cases including a decision not to allow a woman in a minimally conscious coma to have her nutrition withdrawn; an elderly couple's fight to go on holiday after their local authority refused them permission; a mother's bid (eventually withdrawn) to have a daughter with severe learning difficulties sterilised as she kept getting pregnant; and numerous disputes where children have been removed from parents – rightly or wrongly – by local authorities. None of these could have been made public before.

"The media's work in publicising what has happened in the Court of Protection has been incredibly helpful," says Richard Charlton, chairman of the Mental Health Lawyers Association. "The Neary case in particular was a blast of clean air. It shone a fantastic spotlight on how powers can be abused but also how the court can stop such abuses."

When The Independent first sought access to the Court of Protection we were vehemently opposed by both local authorities and the Official Solicitor. The paper had to fight two separate cases through the High Court with both going as far as the Court of Appeal. Each time the judges found in the media's favour, saying it was vital the public had a good idea of what the court did in their name in cases that were of legitimate public interest. Last week The Independent sat in on a case in Birmingham in which a local health trust was trying to seek the court's permission to carry out an exploratory procedure on an 87-year-old woman with dementia to gauge whether she might have cancer.

The case came to court because the woman's son objected to her being placed under general anaesthetic so that doctors could discover whether repetitive internal bleeding was caused by cancer.

Such cases are the bread and butter of the Court of Protection which receives more than 20,000 applications a year, 1,200 of which turn into full-blown hearings. Judges have to make difficult decisions about private matters. Scrutiny of their decisions has helped boost confidence in the court's ability to deliver justice.

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