Property Owned As Tenants In Common
Law3 mins ago
Worrying Development
How in hell did we get to the stage where British citizens can be tried and convicted in their absence. With no representation and with a threat of losing their home if they go public.
This is the stuff of nightmares.
Why weren't the public made aware when this legislation was being considered.
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This is the stuff of nightmares.
Why weren't the public made aware when this legislation was being considered.
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"Twas ever thus" ! I think there's more to this than meets the Daily Mail's eye. It is manifestly unlikely that this woman was wholly unaware of these proceedings and/or not aware that her father was not subject to the court's control and removing him without consent was in breach.
Court of Protection cases are always "secret", just as, in the same sense,most family matters are. It's not, presumably, being suggested that this woman was jailed without being able to communicate the fact, or the threat of it, to the outside world.
Court of Protection cases are always "secret", just as, in the same sense,most family matters are. It's not, presumably, being suggested that this woman was jailed without being able to communicate the fact, or the threat of it, to the outside world.
I think this scenario is everyone's worst fear, however the court of protection can also swing the other way and protect people from greedy scheming family members. If she was jailed for contempt of court in her absence I would be very disappointed and do think it might have been handled insensitively in this case but there is a fine line between people's ' privacy' once they have been declared unfit to represent themselves and safeguarding them from damaging judicial decisions. Do we make the courts public in their entirety? I would be happier with that, but I can understand some people's suggestion that there is a need for privacy of the person concerned.
Unfortunately, this is typical DM reporting - short on the facts and with lots of nonsense.
Firstly, it has ALWAYS been the case that a Defendant may be tried in a criminal court in his absence and without representation. As long as the Court is satisfied that the Defendant knew of the proceedings and has sought to make himself absent the trial may go ahead. Otherwise, no trial would ever go ahead since Defendants would just absent themselves. However, this is not a criminal Court.
The piece of legislation that the DM refers to is the Mental Capacity Act 2005. That legislation repealed certain other bits of legislation and consolidated them. The Court of Protection is not new by any means - and it has always had the inherent power to punish contempt by imprisonment. The Act went through the normal consultation process, but because the changes weren't as huge as the DM makes out, no one really noticed. So wrong again DM.
This person WILL have been aware of the Court hearing - indeed, I suspect that this will have the last in a long line of Court hearings. The Judge would have had to have been thoroughly satisfied that she was aware of the hearing and chose to absent herself. Had she been present, the Judge would have adjourned the hearing to give her the opportunity to get legal advice. I also suspect that the Judge finally reached the end of his tether in this woman's persistent breach of Court Orders.
Unfortunately, this type of skewed shabby journalism (I use that word in its loosest sense) just seeks to scaremonger and mislead.
Firstly, it has ALWAYS been the case that a Defendant may be tried in a criminal court in his absence and without representation. As long as the Court is satisfied that the Defendant knew of the proceedings and has sought to make himself absent the trial may go ahead. Otherwise, no trial would ever go ahead since Defendants would just absent themselves. However, this is not a criminal Court.
The piece of legislation that the DM refers to is the Mental Capacity Act 2005. That legislation repealed certain other bits of legislation and consolidated them. The Court of Protection is not new by any means - and it has always had the inherent power to punish contempt by imprisonment. The Act went through the normal consultation process, but because the changes weren't as huge as the DM makes out, no one really noticed. So wrong again DM.
This person WILL have been aware of the Court hearing - indeed, I suspect that this will have the last in a long line of Court hearings. The Judge would have had to have been thoroughly satisfied that she was aware of the hearing and chose to absent herself. Had she been present, the Judge would have adjourned the hearing to give her the opportunity to get legal advice. I also suspect that the Judge finally reached the end of his tether in this woman's persistent breach of Court Orders.
Unfortunately, this type of skewed shabby journalism (I use that word in its loosest sense) just seeks to scaremonger and mislead.
I must say that I did fall for the sensationalist way that this story was skewed and having done a bit of googling on Courts of Protection I can see that the case may not be as shocking as at first seems.
However, I just cannot see how jailing this woman for 6 weeks has helped the situation. There is no mention of the family seeking to benefit financially just that they had failed to come up with a plan for care that the courts would accept.
Is there no equivalent of a guardian ad litem in these cases? Surely it would have been in everyones best interest (especially the fathers) for Social Services to work with the family to come up with a care plan that was acceptable to all.
All in all a very sad story that I feel could have been dealt with in a more humane way.
However, I just cannot see how jailing this woman for 6 weeks has helped the situation. There is no mention of the family seeking to benefit financially just that they had failed to come up with a plan for care that the courts would accept.
Is there no equivalent of a guardian ad litem in these cases? Surely it would have been in everyones best interest (especially the fathers) for Social Services to work with the family to come up with a care plan that was acceptable to all.
All in all a very sad story that I feel could have been dealt with in a more humane way.
The Court of Protection and its powers, are not new (the Daily Mail might have noticed that since 2005, but that's the Daily Mail for you, playing on ignorance and encouraging false belief). It's predecessors, an assemblage of judicial bodies, had similar powers and duties collectively; there was one Master of the High Court with the glorious title of "the Master in Lunacy" and there were other courts and officials too.
The old chap will have been represented by the Official Solicitor. Social services WERE involved. Indeed, they had a significant involvement as were a number of other professionals. She was jailed, not to help the case, but because of her persistent breach of Court Orders. The DM makes much of the fact that she is the first person to be jailed. If the DM reported it fairly, they would see that the reason that she was first to be jailed was probably because they had never encountered such intransigence before. The fact that she is the first person to be jailed given the huge number of cases the CP deals with shows that it doesn't use it powers to commit lightly or without good reason.
Woofgang - Unfortunately I have had some experience of //some of the things that relatives do.//
I suppose that there always will be some cases that can't be win/win. I just find it upsetting and distasteful that, towards the end of his life, this gentleman may have been aware of the legal wranglings that must have been going on.
I fervently hope that I don't end my days in a scenario akin to this.
I suppose that there always will be some cases that can't be win/win. I just find it upsetting and distasteful that, towards the end of his life, this gentleman may have been aware of the legal wranglings that must have been going on.
I fervently hope that I don't end my days in a scenario akin to this.
Hmm. This case is in the Mail but not, so far, in other national papers or on the BBC online. I wonder why that is? Is it that the others are too slow, or could it be that the others understand the law and procedure, realise that this is a woman who is in serious breach, almost certainly persistent, and therefore think that it's not worth special comment or worth reporting? Perhaps she sold her story to the Daily Mail and they have, somehow, managed to keep it exclusive (not at all likely,given the habits of national papers)?
Time will tell.
Time will tell.
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