Aidiniantz v Riley [2015] EWCOP 65

This case involves an application brought by John, the Patient’s (‘P’) youngest son as to where P should live. The proceedings began in November 2014 and the matter was heard by Mr Justice Peter Jackson over two days on 29th and 30th September 2015. 

There was also an issue as to the extent that this case should be reported.

The Facts
P is 88 years and has four children; John, who is the half  brother to Linda, Stephen and Jennifer.

P’s half sister Ruth was involved in proceedings, as was AH, a carer employed by Linda, Stephen and Jennifer. There was also a person named Tariq who was an associate of Linda, Stephen and Jennifer but opposes John.

In 1989 John came up with the idea of creating a Sherlock Holmes museum in Baker Street. P provided the purchase monies. Until 2012 the business was run by the family with all contributing to some extent.

In 2012 the relationships broke down. Legal proceedings were undertaken. However in April 2013 a compromise was reached. Unfortunately there was more litigation as to whether or not the compromise was enforceable, and John’s costs.

In October 2013 proceedings were brought in the Family Court regarding the occupation of 1 Parkgate Road (the ‘property’), a property owned by P and was her home but now Stephen resides there. These proceedings concluded in March 2015.

In December 2014 John issued the proceedings in the Court of Protection to ask the Official Solicitor (‘OS’) to investigate P’s circumstances.

Concerns
In 2012 when relations broke down John and his family complained that they were prevented from visiting P at her home. Linda, Stephen and Jennifer stated that it was because P did not want to see John. The dispute became so bad that John tried to move in to force Ruth and Stephen out which prompted an application to exclude John from the property. Having heard from P the family court regulated John’s visits from two to four a week.

3 days after the Family Court hearing P was moved to live with Linda in her property in attempt to prevent John’s visits. On 2nd September 2014 the Family Court excluded John from the property. John appealed and the appeal was allowed in March 2015. John began these proceedings on 7th November 2014.

In these proceedings the court ordered an independent social worker (‘ISW’) to investigate. P was met at the property by the ISW and was found in a very weak condition. P wanted to see John and appeared distressed at his absence. The ISW considered P to be a vulnerable adult who qualified for protection under the Inherent Jurisdiction of the High Court. The OS wrote to the party’s solicitors asking them urgently to allow contact between P and John. The ISW stated that P had capacity to decide what family members she wanted to see but was vulnerable and the lack of contact was having an emotional impact on her.

Solicitors acting for P stated that P only wanted to see John when proceedings were concluded and that P did not mean what she said to the ISW.  

Stephen purchased airline tickets for P, himself and Ms AH to travel to Florida to stay at Linda’s property; John was not aware of this and only learned of it through Facebook. Although due back on 5th May whereby arrangements were made for the OS’s representative to meet P on 6th May, Linda arrived back from Florida and informed the OS that P would be staying in Florida for another couple of months.

The matter came before the court, which accepted undertakings that P would return by 17th June, and arrangements were made for P to meet the OS. On the date of the meeting Linda produced a GP certificate stating that P was too unwell to go to the meeting. Linda accused John of elder abuse and hate crimes.

On 23rd June P was admitted to hospital in an exhausted and dehydrated state. Linda objected to John visiting and withheld the name of the hospital.

After the court ordered Linda to give the OS P’s doctor’s details, P was visited and deemed not to have capacity to litigate - she was frail and weary. 

John visited P in hospital and his siblings wrote after stating he should be supervised and attempted to take control of access to P.

Issue
The parties could not agree where P should go after discharge from the hospital and what care package should be in place.

After several reports the court found that P lacked capacity as to her residence, healthcare treatment, contact, and her property and affairs.

The Law
The court considered the Court of Protection Rules 2007 (‘COPR’) rules, 90-93, the general rule being that the hearing is held in private, but that the court can order all or part of the hearing to be held in public, or allow specified information to be published. The court considered the case of Independent News Media Ltd v A [2009] EWHC 2858 (the weight should be given to the general rule that the hearing should be in private).

The court considered what was in P’s best interests in accordance with section 4 of the Act.

Decision
The court could not find a good reason to depart from the general rule that the hearing remained in private.  It also refused the press from reporting extracts of the evidence. The court found that there were good reasons to publish the judgment in a format that names the individuals in the case and allowed the contents of the judgment to be reported but no other reporting was allowed.

The court discharged P from hospital to a local nursing home and stated that it was in her best interests to remain there because if she were returned to the property it would be returning her to a ‘warzone’. The court ordered separate daily visiting by both sides of the family. The court found that the family can bring who they want to visit P.  

The OS, having expressed concerns about Ms AH and Mr Siddiqi visiting P in the home, found that there was no evidence of harm and therefore Ms AH could visit from time to time if invited to; the court questioned whether Mr Siddiqi visiting would be good idea, but if it was thought to be then he could visit with the family.

The court did not appoint a welfare deputy leaving the care home to protect P’s day to day interests.

The court did not appoint a deputy for P’s property and affairs either, nor did it order the OS to carry out financial investigations.  
 
Discussion
The application by the press was to treat the hearing as if it had been held in public. The application came late after the hearing had taken place. The court expressed concern as the application should have been made at the outset so that the witnesses giving evidence should have known where they stood.

This family had played out their mutual acrimony in public in the Chancery Division. Much of the information is already in the public domain. The court wished for the public to know how the court operates in a case already known to the public, and the costs of it, the family having spent £270,000 in the Court of Protection litigation alone. The naming of the persons involved will not make matters worse for P.

Although the court takes financial abuse as a serious matter an investigation in this case would be complicated, expensive and unlikely to be beneficial to P, whose needs were being met. It dealt with P’s pension but left the money issues to be pursued elsewhere by the children if that was their choice.

The court was clearly unimpressed with the behaviour of P’s family. The Judge started his judgment by stating: “These proceedings in the Court of Protection are the latest setting for the poisonous feud between the children of Mrs Grace Aidiniantz…” Although arguments were pursued by John’s representatives to keep the hearing private and anonymised the history of the behaviour of P’s family was such that the court felt that they should be named.

It is unfortunate that due to the family’s behaviour P was unable to return to home under a care package.  It is a lesson in the costs involved in bringing litigation, and the fear of being named if parties act out a bitter feud amongst themselves.   

Read the full text of the judgment on Bailii