Legal history made after 'Independent' campaign
A father and son reunited. A secret court forced to open its doors
Tuesday 01 March 2011
A father's struggle to be allowed to care for his autistic son made legal history yesterday when a judge ruled that the story of his ongoing battles with his local council could be made public.
Mark Neary attracted a wave of public sympathy when it first became known that the council had separated him from the son he had been looking after for 20 years. But after the initial outcry, silence descended over the case when Hillingdon Council took it to the Court of Protection.
These courts, which deal with vulnerable people who are judged unable to make their own decisions, very rarely allow any of their proceedings to be reported, even when a person's liberty is at stake. Where publicity is allowed, initials usually have to be used to designate the individuals involved, to protect their identities. But a campaign led by The Independent, and backed by other leading news organisations, produced a breakthrough yesterday when Mr Justice Peter Jackson ruled that the media would be allowed into the hearings that will determine Steven Neary's future, and could report his name, and name the local authority involved. It is thought to be the first time that a judge in a Court of Protection case has allowed all the parties involved to be identified.
The ruling means that for the first time, the public will get a detailed look at the workings of the Court of Protection, which was set up in 2007, and the new Deprivation of Liberty Orders, which came into force in April 2009. These orders can be applied to hospital patients and residents of care homes, where it is believed that it is in their interest.
Steven Neary is now living with his father once again, in Uxbridge in west London, and his father's legal team are confident that they will not be separated. But for several months, it looked as if father and son were doomed to live apart permanently, as Mark Neary scrambled around, desperately seeking a lawyer to help him challenge the local council.
Mr Neary's mistake was to turn to Hillingdon council in December 2009 when he was suffering from flu-like symptoms. He asked them to take his son into a residential care home, supposedly for just three days to give him respite.
The 20-year-old's behaviour deteriorated while he was separated from his father, and social workers suggested that he should be moved to a specialist behavioural unit. His father agreed.
One night in April 2010, Steven escaped from the council home in his pyjamas, met a vicar on the street, removed the vicar's glasses and threw them on the ground.
Hillingdon council's response was a Deprivation of Liberty Order, under which Steven was allowed home for only two hours at a time, and was barred from staying overnight.
His father pleaded with the council to reverse this decision, but it refused, so he set about hunting for a solicitor who could help. He searched the internet and contacted more than 50 legal firms. Most told him that they could not help with a case involving the Mental Health Act.
His hopes were raised when one prominent firm sent him a legal aid form, only to be dashed again when he was told that he did not qualify. Despite his low income, he was counted as being wealthy because he part-owned the house where his former wife lives. But his low income also prevented him from raising a mortgage on the property.
He hit rock bottom in July 2010, when the council told him that Steven would never be allowed home and was to be moved to a secure home in another part of the country.
In desperation, he set up a Facebook page, which produced an enormous response. A former Hillingdon councillor put him in touch with his local paper, the Uxbridge Gazette. Other publicity followed.
Finally, after the council had told him it was applying to the Court of Protection, and after Steven had escaped a second time, Conroys, a solicitors' firm based in Exeter, agreed to take up the case.
"We applied to the court in November, and in three weeks the boy was back home," Christopher Cuddihee, of Conroys, said yesterday.
At the Royal Courts of Justice yesterday, Guy Vassall-Adams, representing The Independent and four other media outlets, was able to show the judge that there was "good reason" for the media to be let into the proceedings, which would be "a powerful illustration of the role played by the court".
Aswini Weereratne, representing the Official Solicitor – a public official who acts as the "friend" of people involved in court cases who are not competent to make decisions for themselves – and barristers representing Hillingdon Council and Mark Neary also spoke on the issue of publicity.
Two court hearings still have to be held. The first will consider an allegation that Hillingdon council acted illegally by depriving the youth of his liberty. There is also a three-day hearing into his future care arrangements scheduled for May.
Mark Neary said: "I'm delighted. This has been an incredibly long struggle. I have tried everything that I could to persuade the local authority that living at home with his family was in Steven's best interest. Most importantly of all, Steven is at home, and is happy."
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