BRA father's right to love
Man reunited with son after epic secret court battle to win his liberty
Friday 10 June 2011
Mark Neary, the quietly spoken father who challenged the might of his local council, has won the final battle to secure the liberty of his autistic son.
In emotional scenes at the High Court, Hillingdon Council offered Mr Neary a public apology after a stinging ruling that it had breached a basic principle, when for almost a year it deprived 21-year-old Steven Neary of his liberty.
All social services departments across the country were warned by the judge not to abuse the power they have under the 2005 Mental Capacity Act to lock up people who are judged unable to make decisions for themselves.
It should only be used under "stringent conditions", Mr Justice Peter Jackson said. "It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person's best interests to be in the place at all."
The Neary case is unique in British legal history because it is the first time that a judge has permitted almost every detail of a private hearing before the previously closed Court of Protection to be made public. The decision to open up the hearings was made after The Independent, backed by other newspapers, argued that the case threw up issues of genuine public concern about the treatment of people said to be "lacking mental capacity". The judgment was accompanied by an order that prohibits publication of only a small numbers of details of the court proceedings.
Standing on the steps of the Royal Courts of Justice after yesterday's hearing, Mr Neary said he could never have won the battle to get his son home again without support from the mass media. "We wouldn't have been here today if it hadn't been for the press involvement," he said. He added that Steven had not been harmed or upset by the publicity.
He also praised the courts, which had been "absolutely brilliant", from the first hearing last December when an order was made allowing Steven to go home, to yesterday's "fantastic" judgment. "Hopefully other people will read this judgment and fight for what's right for their kids," he said.
Specialists in this field of law hailed the judgment as a breakthrough for family rights. "It's a strong judgment and comes as a stiff warning to local authorities," said Paul Ridge of the law firm Bindmans. "It's a call to councils to wake up to the serious implications of detaining disabled people and splitting families."
John Wadham, of the Equality and Human Rights Commission said: "This is a significant victory for the human rights of disabled people and their carers. [Steven] like everyone else, has a right to personal freedom and a family life."
Mr Neary has won widespread respect for the persistence with which he fought for his son's freedom. Yesterday, he was close to breaking down as he listened to the praise he received from the judge, who said: "Mark Neary is an unusual man and he can be proud of the way in which he has stood up for his son's interests."
For almost the whole of 2010, Steven Neary was denied the right to live with his father, who had looked after him for almost the whole of his 21 years, because the council's social services department had decided that it would be in his best interests to be in council care.
On 30 December 2009, feeling ill and exhausted, he asked the council to look after his son, expecting that they would be reunited after "a couple of weeks". Four days later, he was shocked to learn that social workers proposed to keep Steven in care while they decided what would be in his long-term interests. Looking at the record of a meeting of professionals on 15 January, Mr Justice Jackson concluded: "Hillingdon had by now decided that it would not let Steven go home, but had not revealed this to Mr Neary. Its approach was rather to manage his opposition."
In February, a social worker sent an email to the support unit where Steven was being held, complaining about the father's persistence. The email said: "There is always going to be something or other that Mr Neary will bring up and more often than not we are having to appease his needs rather than Steven's." Mr Justice Jackson said that Mr Neary "had done nothing to deserve this disrespect".
In April, after Steven had wandered out of the unit where he was held, seized the glasses off a passer-by and thrown them on to the pavement, breaking them, the professionals decided to take out a Deprivation of Liberty Order. But they kept his father in the dark for three months, until Mr Neary was shocked to receive a letter in July telling him that Steven was to be kept in care permanently.
The judge said that by keeping Steven in a home against his family's wishes, the council breached ancient rights that were written into the Magna Carta in 1215.
After the hearing, Linda Sanders, director of social care at Hillingdon Council, said: "I would like to apologise to Steven and his father. It is clear that there have been times when we have let both of them down."
Liberty and open justice: A landmark case
June 2009 The Independent applies to attend proceedings at the Court of Protection, which until now have been kept secret.
30 December 2009 Mark Neary asks Hillingdon Council to take care of his son, Steven, for what he thought would be merely a few days while he recovered from an illness.
4 January 2010 A professionals' meeting considers keeping Steven in care longer in order to assess his condition.
22 February 2010 A social worker complains about Steven's father in an email, saying: "There is always going to be something or other that Mr Neary will bring up" – a comment which the judge said Mark Neary had "done nothing to deserve".
11 April 2010 Steven escapes from care.
15 April 2010 An order is signed depriving Steven of his liberty, while his father is kept in the dark.
13 May 2010 A judge makes a landmark ruling in favour of The Independent's legal challenge to attend a separate Court of Protection case.
8 July 2010 Hillingdon Council writes to Mr Neary telling him that his son will not be returning home. He decides to go public on the case.
23 December 2010 Steven's case goes to court for the first time, where an interim order that he be allowed to go home is subsequently granted.
28 February 2011 A judge rules that the Neary case can be reported by the media for the first time, as Mr Neary describes in court how he felt "powerless" after the council prevented his son's return home.
9 June 2011 Hillingdon Council apologises to Mark Neary after the court rules that Steven had been illegally detained.
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