I have learnt that it is usually a good idea to sleep on it after reading a Christopher Booker article, and not to write in anger. I have slept on this one for a whole week (force majeure) so I am positively serene as I write. Honest.
This time it is a piece beginning with the rather understated headline :
The shadowy Court of Protection’s treatment of a 72-year-old grandmother is a national scandal, says Christopher Booker
Beneath it is a picture of a sweet old lady rejoicing in her liberation, her red coat conjuring up muddled memories of red riding hood and her escape from the wolf.
In the interests of balance, we also have the Daily Mail’s effort :
Grandmother is arrested at Ken Dodd show and held in the cells… just for hugging her teenage granddaughter: Fury as secretive Court of Protection sentences 72-year-old to three months for contempt
- Kathleen Danby, 72, was sentenced in her absence to three months in jail
- Accused of hugging vulnerable girl, 19, against wishes of social services
- The girl’s father condemned Mrs Danby’s arrest as ‘absolutely ridiculous’
I’m not going to unpick these line by line. I only really want to gather for you the fuller information that is publicly available – and that was publicly available at the time of publication – in order that you might form a view for yourselves about the accuracy and completeness or otherwise of Mr Booker’s (and others) account of this case – and in order that you might also form a view as to how much you want to rely upon his accounts in futures.
It worries me that people swallow what they read without checking the sources. And it worries me that the mainstream media still insist on reporting things without doing the public the courtesy of linking to the source material where available.
So here goes. Some key documents that Telegraph and Mail readers are unlikely to have seen. I’ll summarise their contents as I go. You can go back and compare them with what Mr Booker sees and says.
The first judgment : A Local Authority v B, F & G  EWCOP B18 (21 March 2014)
HHJ Cardinal in Court of Protection. Tells us that the proceedings were ongoing because the LA sought “an order providing for the long-term residence of B, a young woman who has not long ago attained the age of 18, and who resides in a residential care home at a confidential address…since 2007” and “orders regulating the father’s and the paternal grandmother’s contact with B [that's Mrs Danby], and secondly, injunctive relief so as to prevent direct contact and the removal of B from her present address, and …to prevent any further inappropriate contact with her.”
The judgment tells us that there have been care proceedings and inherent jurisdiction (High Court) proceedings ongoing for years and that there have been “disputes between this Local Authority and her father for very many years“. Final High Court orders appear to have been made, including injunctions in June 2012, and these were continued on 26 June 2012.
The judge states that “What is concerning about this case is that the continued litigation is proving to cause stress, anxiety, upset and confusion to B. It is therefore very important that finalisation takes place and she knows her future. I intend to ensure that her wishes and feelings are taken careful notice of and taken into account when I come to dispose of this matter finally in early April, and I shall bear in mind what she says, but I also note that her wishes and feelings fluctuate from time to time. B will have the opportunity of meeting me if at all possible.”
It is clear from the judgment that B lacked capacity to make her own decisions on the issues at hand, and that the court had concluded this after receiving the evidence of an independent expert. She was represented by the Official Solicitor throughout the proceedings. Whilst the Father disputed that conclusion “he has failed to file any evidence contradicting that which Dr. Halstead has said“.
The application at that hearing was for a Hadkinson order (an order preventing any application to the court by a person who is in contempt of court until that person has purged himself of his contempt). The family did not attend, but the Father opposed the application by letter, in which he said “I am not prepared to expose myself to possible imprisonment by travelling south to attend any hearings.” This is a reference to the fact that the Father was “currently in contempt of court and faces a substantial sentence of imprisonment“.
On 13 September 2012 the court had found beyond reasonable doubt that F had twice arranged to meet covertly with B earlier that year, and in breach of the injunctions in place. The Father had been given an opportunity to attend for sentence but declined and was sentenced in his absence. Significantly, on that occasion the court found that “he will continue to seek out B in defiance of this order, and thereby causing her distress, unless and until he serves a significant period in prison. He was sentenced to a twelve month period of imprisonment“. It is clear from reading the judgment that there was no indication that the Father was prepared to comply in future with the order.
Whats more there was a history of what sounds like at least two abductions by F: “there was an occasion when father retained B as a child in Scotland and did not return her, and there was an attempt in the past to remove B from her foster care, all apparently in defiance of court orders“.
The judge does make the Hadkinson order, saying “This is an extremely serious case, where the father has repeatedly breached Court orders, it seems. This Court cannot sit idly by if he chooses to stay out of the jurisdiction, to make representations that are unhelpful and do not answer the questions at large and then does not attend to be tested by cross-examination.”
He directs publication of the judgment “for all to see”.
The second judgment : A Local Authority v B & Ors  EWCOP B21 (07 April 2014)
Again, HHJ Cardinal in the Court of Protection. Again the family did not attend, the Father still had a warrant outstanding for his arrest, and by this stage a committal application had been launched against the Grandmother.
Here he gives us some more of the back story, saying
“Her life story is a very sad one. Social Services were involved with her shortly after her birth, and she was made the subject of a Supervision Order. In due course her parents separated and litigated over her contact arrangements. In 2005 she went for contact purposes to see her father in Scotland, and she was retained by him, making allegations against Mother’s partner. However, he grew unable to care for her and asked his local authority for assistance. In due course there was an occasion when he was charged with assaulting her. It was as a result of that that she was placed in foster care, although I note with regard to that assault, that even now and quite inaccurately, she blames herself for the assault that took place.”
This “assault” must correspond (very approximately) I think with Christopher Booker’s “roughly grabbing her and taking her to safety”.
“In October 2010 when the father, in concert with a friend who purported to be his McKenzie Friend, abducted B. Separate proceedings were taken then against G, the paternal grandmother [Mrs Danby]” leading it seems to the granting of injunctions against the father from June 2011, prohibiting all forms of contact. We already know that the care / High Court proceedings concluded in summer 2012, and from this judgment we are told the Court of Protection proceedings commenced in August 2013.
We also get some information about B herself. “She suffers from a lack of capacity owing to an attachment disorder and mild learning difficulties…she exhibits from time to time difficult behaviours and that she has problems in controlling her temper on occasions.” Of her wishes and feelings we are told “I note that she continues regularly to see her mother, her mother’s partner and her two half-siblings, and she tells me that that is “alright” and that she wants that arrangement to continue.”
There is a long passage setting out how the Father and grandmother have behaved unhelpfully over a period of time, and in particular it is said “I have today been shown Facebook entries in which it seems that father and grandmother are campaigning against the local authority and disclosing photographs of B of a worryingly recent nature which reveals, of course, that they have been in contact with her when they should not have been.”
It is said that through the covert contact “this father and this grandmother appear to have caused significant emotional harm to B“. The judge goes on to spell that out in detail :
“The evidence points unequivocally to me to the effect that whenever the father or the grandmother interfere in her life, B is disturbed and distressed. A recent example suffices. Only recently, she ran away from the home where she lives for a period of five hours. She broke a window in her bedroom, threatened staff with a broken glass and smashed mugs. She scratched herself on the arms and threw coffee all over the ceiling of her room. I am told that when she is distressed, she blames the other young woman who lives in the accommodation with her, but her behaviour seems to relate not to the other young person so much as events in her own life. These are plainly the actions of an emotionally upset young lady. I am even told that she has recently been arrested and indeed cautioned, though of course the Official Solicitor will pursue and has my leave to pursue the validity of such Police action.
Dr. Halstead reports that she is unable to translate distress into emotional anguish, hence, perhaps, her behaviour. Sadly, she continues to have an idealised view of her father, who had promised her she could leave care at the age of 18 and come and live with him. I am satisfied, on the evidence I have seen, that she has regressed to an extent. She no longer goes to college and has ceased doing volunteer work. She is in desperate need of resuming education, learning life skills and receiving therapeutic help, with which she will not presently engage…
Last Friday I had the privilege of meeting B at her care home in the presence of Ms. McFarlane, the solicitor agent for the Official Solicitor. I noted particularly she said this of her father. “If he really wanted to see me, he would come to Court”. So from time to time she does exhibit a degree of insight. I believe that could grow if she had the period of peace that I am going to provide her with. For, after two years of therapy and education, the local authority could devise a transition plan for the future…
It is essential that B has that period of peace from litigation, and I believe that this [the four year order made] is the best way of securing it.”
Those paragraphs are, for me, the crux of it.
The third judgment : Derbyshire County Council v Danby  EWCOP B22 (15 April 2014)
This is the first of the two committal judgments. Again, HHJ Cardinal in the Court of Protection.
“In the last month or so her behaviour has become more distressed, angry, violent and she has even self-harmed. The local authority would say she was improving in her behaviour for a considerable period of time following final orders in the High Court in the summer of 2013 and it is because of the events that I shall hereinafter relate that her behaviour has so deteriorated.”
This sets out the injunction made against Mrs Danby in January 2014 :
“The Second Respondent Kathleen Danby is forbidden to do any of the following, either by herself or by instructing or encouraging another person to do so.
“(a) From approaching or attempting to approach B personally or through instructing and/or encouraging any other person so to do.
“(b) from communicating with B in any way whatsoever, whether in writing or by post, telephone, fax, text messaging, e-mail or any other form of telecommunication or information technology, including internet, video calling (i.e. Skype), whether directly or indirectly through another, save that she may receive a single telecommunication call from B on a loudspeaker and supervised by the local authority their servants and/or agents to take place on the first Wednesday of each calendar month between the hours seven o’clock p.m. and eight o’clock p.m. only in strict compliance with the declarations on the face and the schedule of the order of Her Honour Judge …” (it says “Taylor”) that should be “… Thomas of even date (annexed hereto).
“(c) For attending at, entering or attempting to enter or go within J town (the town in which B’s placement is situated) either personally or through instructing and/or encouraging any other person to do so.
“(d) From attending at, entering or attempting to enter or go within 100 metres of XCollege, either personally or through instructing and/or encouraging any other person to do so.
“(e) From loitering within a radius of 100 metres of Y placementeither personally or through instructing and/or encouraging any other person to do so.
“(f) From loitering within a radius of 100 metres X College, either personally or through instructing and/or encouraging any other person to do so.“
The breaches are said to be arranging to meet with B, meeting with her and passing her a package on 28 February (after personal service of the injunction). The breach is captured on CCTV. B has told staff at her placement about it. The package was a family DVD. The breach was foreshadowed by a period of disrupted and odd behaviour on the part of B. The judge is satisfied that not only did they meet, but that it was prearranged and therefore a quite intentional breach. Following these events B’s behaviour deteriorated and was said to be out of character, including an incident of absconding :
“I am sure, too, that the deterioration in her behaviour results from these meetings with her grandmother. Her behaviour has deteriorated; she has self-harmed; she has assaulted staff; she has threatened her co-resident and she has run away. Not in a sense that she disappears by being an hour late, which she does from time to time as is perhaps typical late teenage behaviour, but because she literally runs away and has to be found with the help of the police.”
The judge says “This is a public hearing to which all could have attended and a proper notice has been placed outside this court and downstairs in the court’s reception area complying with the Practice Guidance of 4th of June of last year. Anyone who wanted to could have attended this hearing if they wished.”
He sentences Mrs Danby to a three month term of imprisonment and says that “I shall direct that this lady can come before the court, mitigate and try to persuade me to take a different view if she can justify her behaviour and explain to me what she has done and why it is not as bad as I see it to be.” We know from judgment number 4 that she did not do so.
The fourth judgment : Derbyshire County Council v Danby  EWCOP B26 (16 July 2014)
This a short judgment :
“Today was listed to give Mrs Danby the opportunity of persuading me that the sentence I imposed in April was wrong, that I should reduce it, mitigate it or even quash it, and she has failed to avail herself of that opportunity. So, in the circumstances, I have no alternative other than to leave the sentence outstanding, together with the warrant of arrest. If Mrs Danby is arrested pursuant to that warrant she can apply to purge her contempt and I will see her as soon as is possible to look at the matter.
I do hope that she sees sense and avails herself of the opportunity of reducing the sentence I have imposed as quickly as possible.
I need hardly add that other members of her family are seeing the young lady concerned with no difficulty whatsoever.”
And of course the next thing we hear is that she has been arrested…
Ladies and Gentlemen of the jury, I’d like you to go back to those headlines at the top of this post now, re-read them and think about how accurate, balanced and fair you think they are.
What is missing (apart from any judgment regarding the purging of contempt, which I expect will be forthcoming soon), and is likely to remain missing is the judgment(s) from the original care proceedings. If such decisions were made today they would be covered by guidance requiring them to be published – but although only a couple of years ago this was not common practice at the time, and it is quite possible that no publishable judgment exists or that there are perfectly proper reasons for the non-publication (I am keen on publication of judgments where that can be done without risk to the child but am prepared to accept bearing in mind the contents of judgments 1-4 that there may well have been such good reasons). We also don’t have all the judgments from the original making of the injunctions – although they appear to have been uncontested by the family at the time so that is unsurprising.
I was – and am – very cross at the insistence that this is an illustration of a shadowy secret court at work when the key judgments in the proceedings have been contemporaneously published and must have been available to the journalists who failed to mention their existence (apart from quoting selectively from the April judgment, without attribution or link). If journalists are so keen on transparency why are they not keener on opening up their own writing to the informed scrutiny of the public?
When I tweeted my irritation at these matters last week some suggested that these inaccuracies were not the real point. And undoubtedly there are other points worthy of consideration – for example if Mrs Danby were treated as is suggested by Booker by the Prison Service or G4S then that would be a matter of concern. By way of further example, legitimate questions are asked about the detailed basis for removing the child in the first place.
As to the behaviour of the authorities whilst Mrs Danby was detained, I am afraid I don’t have very much confidence that the account we are given is anything more than journalistic licence in order to make a story about a competent adult who has decided to disobey a court order knowing the potential consequences, into a story about a brutal state bullying a poor little old lady who just wanted to watch a Kenn Dodd show (a talisman of cute old lady) and to hug her granddaughter.
As to the basis for initial removal – well it would be nice to know more, but ultimately we have quite a lot of background facts. There was (it appears) no appeal from any of the earlier decisions. There was / is (it appears) no live application to discharge the care order / any orders in the CoP or live appeal. And for me the current circumstances of an adult who has been in foster care for many years are far more significant - and we have quite a lot of information about those circumstances. To my mind the judgments amply set out why it was necessary to control the contact between the subject and the paternal family – and the fact that B continues to have contact with her maternal family is an indicator that this is more to do with the behaviour of the paternal family than an attempt to prevent this young woman from having contact to her family without justification.