Mr Justice Peter Jackson:
Introduction
- These proceedings in the Court of Protection are the latest setting for the poisonous feud between the children of Mrs Grace Aidiniantz. On this occasion, they dispute where their mother should live, who should care for her, who should see her, and whether her finances should be investigated.
- Mrs Aidiniantz, who is now aged 88 and in poor health, has four children:
John Aidiniantz ('John') lives in London. He is a half-brother to the respondents and is married with a young child.
Linda Riley ('Linda') lives in London and owns a property in Florida.
Stephen Riley ('Stephen') lives at 1 Parkgate Road, a property purchased in 1997 that was until recently also his mother's home.
Jennifer Decoteau, née Riley ('Jennifer') lives in London.
Where I speak of 'the respondents' I am referring to Linda, Stephen and Jennifer.
- Others concerned with Mrs Aidiniantz are:
Ruth Mackertich ('Ruth'), her half-sister, who has lived at 1 Parkgate Road since 2001.
Ms AH, a carer employed by the family between April 2013 and June 2015.
Tariq Siddiqi, an associate of the respondents and an antagonist of John.
- The proceedings began in November 2014 and conclude with this judgment, which follows a hearing lasting for a day, spread over 29 and 30 September.
Publicity
- A preliminary point arises about the extent to which the proceedings can be reported. They were heard in private, in accordance with the Rules, at a hearing at which members of the press were in attendance. Two questions now arise: should the press be allowed to report the hearing, and should there be a public judgment naming the parties? Submissions have been made by the parties and by David Barrett and Mario Ledwith, journalists representing the Telegraph Media Group and Associated Newspapers respectively.
- It is relevant that on 25 September a media alert was issued by a PR company, notifying members of the media that this hearing would be taking place. The alert is in highly partisan terms, and includes lengthy quotations attributed to Stephen. It was this that brought the journalists to court.
- The respondents, having initially denied that they were responsible for the arrival of the press, were then faced with the press alert. They say that it was issued on the instructions of Mr Siddiqi and that the quotes from Stephen are not genuine but were invented by Mr Siddiqi to convey Stephen's views. They say that they did not know what Mr Siddiqi had done until the hearing was under way.
- I have not heard evidence about this aspect of the matter and it is unnecessary to reach a conclusion about it. Mr Siddiqi is described by the respondents as "a long-time friend/associate of the family who has closely followed and advised the family on their affairs." I am, to say the least, sceptical that he was acting without the knowledge and approval of the respondents, but it makes no difference. Even if Mr Siddiqi did not tell them what he was doing, he knows them well enough to know that he was doing what they wanted. Indeed, Linda made all the points that appear in the media alert when giving evidence.
- The relevance of this is that it alerts the court to the risk that the proceedings will be used as a platform to publicise unproven allegations.
- The first question is whether the press should be allowed to report the hearing itself. It submits that it should, or at least that it should be allowed to report certain identified passages from the evidence. The second question is whether the parties should be named in the published judgment.
- The respondents' position on these questions is ostensibly neutral. The applicant opposes the hearing being reported and asks for the judgment to be anonymised and reporting restriction to be imposed. The Official Solicitor does not oppose reporting of the hearing along the lines proposed by the press as a fallback position, or the naming of the parties in the judgment.
- The general rule is that the hearing is to be held in private, but the court may make an order for all or part of the hearing to be held in public, or allowing specified information to be published, but only where there is good reason to do so: COP Rules 2007 rr. 90-93.
- On the question of a public hearing, this is a question that should normally be asked and answered at the outset of proceedings. Once a hearing has taken place in private, even in the presence of the press, an application of the present type seeks to convert it into a public hearing retrospectively. This is in my view problematic. Parties and witnesses should normally know where they stand at the time that they are participating in a hearing. While the court should maintain full flexibility in the operation of Rules 90 to 93, and there may be special cases in which a decision cannot be taken until after the event, I would be cautious before following that course in any normal circumstances. In this case, I do not find a good reason for departing from the rule that the hearing itself remains private.
- I also refuse the request for permission to report extracts from the evidence. I appreciate that journalists are experts in selecting material for public consumption and that judges are not, but having seen the extracts that the press wishes to publish against the background of my decision on publication of this judgment and the contents of the judgment itself, I do not find a good reason to endorse selective reporting from the hearing itself.
- As to the issue of publication of this judgment and the naming of the parties, Mr Tyler QC submits that:
(1) Real weight should be given to the general rule that the hearing should be in private: Independent News Media Ltd. v A [2009] EWHC 2858.
(2) There is scant genuine public interest in publication of the current proceedings. The press is avowedly not interested in the issues about Mrs Aidiniantz's care, but in the family dispute.
(3) Mrs Aidiniantz's privacy and dignity should be protected, even though she is incapacitated.
(4) John has brought these proceedings in good faith, and should not thereby be exposed to vilification by the respondents. His wife and children would also be affected by publicity, as might employees of the family business.
(5) Litigants generally should not be deterred from approaching the Court of Protection by the fear of consequent publicity.
(6) Public identification of the parties to this "private family dispute" is unlikely to bring reconciliation closer and is likely to fuel conflict.
- The position taken by the journalists is that:
(1) This is the latest in a long line of public disagreements between the parties that have been extensively reported in the press, evidenced by news reports from 2013 onwards.
(2) The disagreement about Mrs Aidiniantz's health is not in itself of public interest but is the current forum for the ongoing family dispute, which is of public interest, particularly given the family's business interests.
(3) Anonymisation of the judgment would make it impossible for the press to report this latest chapter in the very public disagreements between the parties.
(4) Blanket reporting restrictions are not required to protect Mrs Aidiniantz's privacy and dignity. There is no intention to report details of her care arrangements or medical condition, beyond saying that she is aged and infirm.
- There is in my view good reason for the court to publish its judgment in this case in a form that names the individuals involved:
(1) Happily, very few families descend to the level of mutual acrimony that exists in this family. It is in the public interest for the public, if it is interested, to see the consequences. It is in the public interest to know how the court process operates in a recognizable case. It is in the public interest to know what it all costs: in the past year this family has spent £270,000 on this branch of its litigation alone. It is not in the public interest to suppress all that information: on the contrary, knowledge of how one family has behaved may deter another family from behaving likewise.
(2) In this case, publication of an anonymised judgment would be futile. So much information is already in the public domain that any anonymised judgment would inevitably be linked to the family. The press would be placed in an impossible situation in knowing what it could and could not report.
(3) It is undesirable that there should be any greater difference of approach than is necessary between two courts dealing with different but related aspects of the same dispute. As recently as 4 June 2015, an extensive public judgment in relation to financial issues was given in the Chancery Division.
(4) This is not just "a private family dispute". These parties have repeatedly chosen to air their differences in the courts. There is little likelihood of reconciliation. A public judgment will not make matters any worse for Mrs Aidiniantz than they already are. The parties might even reflect on their future conduct if they know that it may come to public attention.
(5) Mrs Aidiniantz's right to privacy and dignity is undoubtedly an important consideration. Even though she herself will not be aware of publicity, her reputation is affected by it being known that she is at the heart of the family discord. However, in the overall circumstances, I do not consider that the publication of this judgment amounts to a significant further intrusion into her privacy. It contains little personal information and makes no criticism of Mrs Aidiniantz: on the contrary, any fair-minded reader would be bound to feel sympathy for an elderly parent in her situation.
- The contents of this judgment can therefore be published, but there will be no other reporting of the hearing.
The background
- Mrs Grace Aidiniantz is described by all who know her as a woman of character who brought up her children as a single parent.
- In about 1989, John conceived the idea of creating the Sherlock Holmes museum in Baker Street and the premises were purchased with money provided by his mother. From that point until 2012, the business was run as something of a family affair, with each member contributing to some extent.
- In 2012, relationships broke down. Since then, a number of legal actions and counter-actions have been launched by John, Linda, Jennifer, Ruth and Mrs Aidiniantz herself. The disputes have concerned the takings from the museum, share dealings, the occupancy of John's house and the occupancy of 1 Parkgate Road. Some actions have been issued personally and others through corporate identities.
- In April 2013, a compromise was reached. There was then more litigation about whether the compromise was enforceable and what sums were owing as a result.
- For a more detailed account of the business and litigation history, I commend the High Court judgments of His Honour Judge Richard Seymour QC in Edwin Coe LLP v Aidiniantz & Ors [2014] EWHC 3994 (QB) (9 December 2014) at http://www.bailii.org/ew/cases/EWHC/QB/2014/3994.html and of Mr Robert Englehart QC in Rollerteam & John Aidiniantz v Linda Riley [2015] EWHC 1545 (Ch) (4 June 2015) at http://www.bailii.org/ew/cases/EWHC/Ch/2015/1545.html. The first concerns an action brought by John's solicitors to recover their costs; the second relates to the litigation about the compromise.
- In October 2013, still further proceedings began in the Family Court between Ruth, John and Stephen. This concerned the occupation of 1 Parkgate Road and continued through several hearings until March 2015.
- Despite the Chancery Division judgment, there is every likelihood of further litigation about the occupancy of 1 Parkgate Road.
- Finally, in December 2014, John issued these proceedings, asking the court to direct the Official Solicitor to investigate Mrs Aidiniantz's circumstances.
- A survey of this lamentable litigation history shows that whenever one side enjoys any success, the other immediately takes steps to blunt the advantage. The issues with which this court is now concerned are just a part of the picture.
Events leading up to these proceedings
- In 2012, as relations between the siblings worsened, disputes arose about John's visits to 1 Parkgate Road. He complained that he and his family were being prevented from seeing his mother, while the respondents said that she did not wish to see him because of his business conduct. The dispute became so intense that John tried to move into 1 Parkgate Road himself in an attempt to force Ruth and Stephen out. In response they applied to have him excluded from the property.
- At that point, Pinder Reaux, the solicitors now acting for Linda, Stephen, Jennifer and Ruth were also acting for Mrs Aidiniantz.
- Early orders in the Family Court proceedings regulated John's visits to the property. On 31 March 2014, a District Judge, having heard from Mrs Aidiniantz herself and taken account of her wishes, increased the number of visits that were allowed from two to four per week.
- Three days after that decision, Pinder Reaux announced that Mrs Aidiniantz had decided to move out of 1 Parkgate Road to live with Linda. The effect was to prevent John's contact, already sporadic, from taking place at all.
- In 2 September 2014, a Deputy District Judge, having heard evidence, excluded John from 1 Parkgate Road. Following this decision, John announced that he would appeal and continue to seek the eviction of Ruth and Stephen. He also asked the respondents to propose arrangements for contact. The reply from Pinder Reaux was that Mrs Aidiniantz did not want to see him and that if he tried to see her at Linda's address, an injunction would be obtained.
- On 7 November 2014, John began these proceedings.
- In March 2015, John's appeal against the order of 2 September 2014 was allowed.
The current proceedings
- On 3 December 2014, the matter came before Mrs Justice Hogg. She invited the Official Solicitor to undertake an enquiry into Mrs Aidiniantz's circumstances via an independent social worker. She provided for a further hearing once the enquiry was carried out.
- Requests for contact made by John were refused. Pinder Reaux said that they had taken instructions from Mrs Aidiniantz and that she did not want to see him or his family.
- On 20 March, the independent social worker, Mr Ian Gillman-Smith, met Mrs Aidiniantz at 1 Parkgate Road. She was lying in bed in a very weak condition and only limited conversation was possible. She nonetheless told Mr Gillman-Smith that she wanted to see John, and expressed distress at his absence.
- Mr Gillman-Smith advised that Mrs Aidiniantz should be considered a vulnerable adult who qualified for protection under the inherent jurisdiction of the High Court. His report was provided on 27 March, but he reported his conclusions to the Official Solicitor on the day of his visit. The Official Solicitor's lawyer, Ms Susan Hardie, immediately wrote to the party's solicitors, asking them urgently to facilitate contact between John and his mother.
- The response to this request was extraordinary in the number of ways.
- In the first place, Ms Bains of Pinder Reaux wrote to Ms Hardie on 24 March. She said that she had spoken to Mrs Aidiniantz who had told her that she did want to see John "but only when the cases were concluded". Ms Bains said she had told Mrs Aidiniantz what the independent social worker had reported and Mrs Aidiniantz had said that this was not what she meant. Pinder Reaux said that "a clear confusion ... has arisen" and asked for Mr Gillman-Smith's notes and tape recording of his meeting.
- Secondly, on 26 March, Stephen purchased airline tickets for his mother, himself and Ms AH to travel to Florida on 4 April, returning on 5 May.
- On 27 March, Mr Gillman-Smith's report concluded that Mrs Aidiniantz had capacity to decide to see her family members but that she was a vulnerable person and that the lack of contact with John was having an emotional impact upon her. There should be visits at 1 Parkgate Road, initially limited in time and supervised.
- On 1 April, an urgent application was made by John for an order allowing him to see his mother. The matter came before me for the first time. The respondents were represented, though not present in person. I considered that there was an obvious conflict of interest between Mrs Aidiniantz and the respondents. Pinder Reaux, having disputed this, accepted that they would have to cease to represent Mrs Aidiniantz. I invited the Official Solicitor to facilitate the instruction of a new solicitor for Mrs Aidiniantz who could consider her capacity to give instructions.
- At this hearing, no mention was made of the trip to Florida.
- On 2 April, Ms Hardie contacted Ms Katherine Gieve of Bindmans to ask her to contact Mrs Aidiniantz with a view to representing her if so instructed.
- On 4 April, Mrs Aidiniantz was taken to Florida by Stephen and Ms AH, who was accompanied by her own young son. They were met by Linda and went to stay at her property.
- On about 14 April, John learned via Facebook that his mother was in Florida.
- The hearing fixed in accordance with the order of Mrs Justice Hogg was due to take place on 20 May.
- On 22 April, Pinder Reaux said that Mrs Aidiniantz would be returning on 4 May.
- On 30 April, Ms Hardie suggested that Ms Gieve should meet Mrs Aidiniantz on about 6 May.
- On 5 May, Linda (who was then back in London) informed Ms Hardie that her mother was enjoying being in Florida and intended to stay there for another couple of months.
- On receipt of this information, Ms Hardie informed the court and on 7 May I made an order requiring the respondents to file sworn statements concerning the circumstances of the Florida trip so that the matter could be considered at the hearing on 20 May before Mrs Justice Hogg.
- On 20 May, Mrs Justice Hogg accepted undertakings from the respondents that Mrs Aidiniantz would be accompanied back to England by 17 June so that she could see Ms Gieve during the following week. The matter was listed for further hearing before me on 20 July.
- Also on 20 May, the Florida police attended Linda's home in response to a complaint by John that his mother had been abducted. Mrs Aidiniantz, who was seen in bed, said that she did not want to return to London.
- On 12 June, Ms AH returned to England, leaving Mrs Aidiniantz with Stephen, Jennifer, and Jennifer's daughter and granddaughter.
- On 16 June, Ms Hardie scheduled a meeting between Ms Gieve and Mrs Aidiniantz for 23 June.
- On 17 June, Mrs Aidiniantz was returned to England.
- On 22 June, Linda sent a GP certificate to Ms Hardie stating that her mother was not fit to go to any appointments. She accused John of elder abuse and hate crime. Ms Hardie wrote to the court explaining these developments.
- On 23 June, Mrs Aidiniantz was admitted to hospital in an exhausted and dehydrated condition. Linda strongly objected to John being allowed to visit, to the extent of seeking to withhold the name of the hospital from him. She said that "all hell would break loose" and described it as "enabling an abuser to see his victim".
- On 23 June, I directed Linda to inform the Official Solicitor of the doctors' contact details so that they could give an opinion about whether Mrs Aidiniantz was fit to have a meeting with Ms Gieve. If, having made the enquiries, the Official Solicitor was of the opinion that a meeting could take place, all parties were to facilitate it without delay.
- On 25 June, Ms Gieve saw Mrs Aidiniantz at hospital and formed the view that she did not have the capacity to litigate. She seemed frail and weary and gave only monosyllabic answers.
- On 26 June, John visited his mother in hospital. It was the first time he had seen her for 15 months, the last occasion being 31 March 2014 at court. Ms AH was in attendance. The arrangements for this visit seem to have been negotiated through Mr Siddiqi.
- It is no surprise that squabbles soon broke out. The respondents thought that they were entitled to control access to their mother. In a high-handed e-mail on 29 June, Pinder Reaux complained that John had visited on 26 and 28 June. They wrote that the respondents did not trust him to be alone with her and that supervision was essential. "Your client is not to visit ... as and when he chooses." They also complained that John had registered his name at hospital as next of kin in place of that of Jennifer's daughter.
- On 30 June, in the course of further unproductive correspondence, Pinder Reaux wrote that it could not be assumed that when Mrs Aidiniantz was fit for discharge from hospital, she would return to 1 Parkgate Road.
- On 3 July, John's solicitors wrote saying that Mrs Aidiniantz would need nursing care on discharge from hospital. He proposed that she be placed in a nursing home on the other side of London. He threatened an urgent application in default of agreement.
- On 7 July, John made a different proposal that his mother should return to 1 Parkgate Road, but only on the basis that Stephen and Ruth should move out and that he would arrange a care package.
- John's solicitors restored the matter on 8 July and on 9 July a hearing took place by video link as I was on circuit. I appointed the Official Solicitor to act for Mrs Aidiniantz and made provision for the parties to provide security for his costs in equal half shares. I gave directions for the hearing on 20 July, including for medical reports from the hospital and a social work report from the local authority. I directed that if Mrs Aidiniantz became fit for discharge before 20 July, she should be discharged to 1 Parkgate Road and nowhere else, but only if her doctors considered it medically appropriate. I provided for unsupervised contact for John and his family on two days out of three.
- On 14 July, Mrs Aidiniantz was assessed by a consultant psychiatrist, Dr H, as lacking decision-making capacity in several relevant respects. Reports were also provided by a Consultant Geriatrician and Physician and by the occupational therapists. An initial social work report was provided by Ms CG on 17 July.
- At the hearing on 20 July, I declared that Mrs Aidiniantz lacked the capacity to make decisions about her residence, healthcare treatment, contact with others and her property and affairs. The central issue was where she should live on discharge from hospital. As to that, I said this:
18. Come the parties with their solutions. Having thought about matters the Official Solicitor puts forward as an ideal solution that the parties should declare a truce; Mrs Aidiniantz should return to 1 Parkgate Road with a new care package funded by Mr Aidiniantz; that Ms AH is replaced by external carers who have both care and medical qualification such as to be approved by the responsible doctors, the local authority and the Official Solicitor; that Mr Aidiniantz and his wife and child should be allowed to visit at specified times and that he should hold off any threat to exclude Ms Mackertich and Mr Stephen Riley. That proposal was specifically discussed by the parties in a break in the proceedings and got nowhere. I am not aware of any significant movement by either side and perhaps that was not to be expected. From my point of view and I expect the Official Solicitor's also, there would have been some advantages to Mrs Aidiniantz returning to a familiar address, to her having high quality certified care and medical treatment, but above all to her being returned to arrangements that her children had agreed to.
19. Now that it is clearly not an option, I have to realistically consider what the available alternatives are. It comes to this; that Mrs Aidiniantz should return to 1 Parkgate Road, but under effectively the existing arrangements that applied before she was taken to America on 4 April; or that she should go to a care and nursing home in Islington proposed by Mr Aidiniantz; or she should go to [a nursing home in the vicinity of Parkgate Road] … It is a home that Mrs Aidiniantz was in for about six weeks after she broke her hip in 2011.
…
23. I have considered all of those submissions and the Official Solicitor's concluded view and that is, and I agree with it, that a return by Mrs Aidiniantz to 1 Parkgate Road under the current conditions is not an option that would promote her best interests. The care package that is currently available is not adequate to meet this elderly and unwell lady's needs and it is further confounded because there is such dispute about the main carer. I reach no conclusions, still less adverse ones about Ms AH, but the fact of the matter is that she has become irrevocably bound up in the respondents' positions which are so very much antagonistic to the applicant's.
24. Next, there has been over the course of the past year and a half or more a dynamic in the family that has led the respondents to consider that they have the right to regulate their mother's access to others. If Mrs Aidiniantz is in 1 Parkgate Road under current circumstances, then Mr Aidiniantz would be entering the property for limited periods under sufferance of a court order. I accept that for somebody with Mrs Aidiniantz's current difficulties there may be some comfort from familiarity of a home that she has occupied for some 18 years, but it has not been in recent times a happy home. It has very much been a situation in which Mrs Aidiniantz has been under the support and guidance of the respondents. I see no reason to differentiate between the applicant and the respondent in terms of overall responsibility, but I observe that the solution that the respondents are arguing for at the moment proved to be a total failure when it was last in place. So Mrs Aidiniantz's discharge, which I hope will be imminent, will on full consideration not be to 1 Parkgate Road.
25. I do not know where the longer term future lies. Much will depend on Mrs Aidiniantz's state of health, her capacity, the conduct of her children and the experience of the weeks and months ahead, but from now and until the end of September Mrs Aidiniantz will be going somewhere else. The immediate advantage of somewhere else is that it will be a home which will be professionally staffed, both in terms of care and medical treatment, but will be neutral ground so that neither part of the family can claim possession and that it will provide a period in which I hope Mrs Aidiniantz will be able to build up her reserves so that she can participate more effectively on her own behalf.
26. There have only been two suggestions; the Islington nursing home and [the local nursing home]. As to that, the respondents while arguing vigorously for a return home, would prefer [the local home], while the applicant prefers Islington. The reasons for this are of course not far to seek. Mr Aidiniantz wants his mother out of the immediate vicinity of his half-siblings and they want her close at hand.
27. Unless there is something wrong with [the local home] I would immediately be attracted to somewhere that Mrs Aidiniantz had at least been on a previous occasion and that was within her own part of London, but the decision is even easier than that because somewhat to my amazement Mr Aidiniantz's efforts to persuade the court that his mother should go to the Islington home consist of three lines and one word on page 43 of Section C of the court bundle and some general bumf from the internet. He has not even bothered to visit the address. So it seems to me that the only theoretical attraction of the Islington home is that it is a good way away from Parkgate Road. That in my view can only be a theoretical attraction. If Mrs Aidiniantz is going to be unsettled by going into a care home, then she will be even more unsettled by going into a care home that she has never visited before in an area that means, so far as I am aware, nothing to her. A suggestion of that kind so glibly made and lightly researched is very much in keeping with the quality of this litigation generally and I reject it.
28. There are disadvantages of [the local home]. It is in the vicinity of 1 Parkgate Road and that brings with it, as far as I can tell, two potential problems. One is that if she is well enough Mrs Aidiniantz may pine or be induced to pine for her home. As to that little can be done, particularly if anyone is disposed to unsettle her. The other disadvantage is that it is not far from the respondents. There are advantages to that. I refer here to the disadvantages, namely that Mrs Aidiniantz might be incorporated back into the household at Parkgate Road without there being any oversight or control, though that can be prevented by court orders.
29. So having considered the short list of options, each of which have greater or lesser disadvantages, my conclusion is that it is in Grace Aidiniantz's best interests at this point in time to be discharged to [the local home] and to remain there until the matter comes before the court at the end of September. At that point all realistic options will be considered.
- I provided for alternate daily visiting for members from each side of the family and fixed this final hearing.
- On 27 July, Mrs Aidiniantz was discharged to the local nursing home, where she remains. Contact for family members has taken place as ordered, with some variations by agreement. Ms AH has also visited and John has duly complained.
- On 7 September, Ms Gieve visited Mrs Aidiniantz but was unable to rouse her from sleep. She spoke with the manager of the home, who told her that Mrs Aidiniantz enjoying seeing her children.
- On 24 September, Ms Gieve returned and was on this occasion able to have a limited conversation with Mrs Aidiniantz. She said that she was being well looked after and then she likes seeing all her children. She said she had enjoyed a recent birthday outing with the respondents and would most definitely like to go out again. Asked if she wanted to remain where she was or return to 1 Parkgate Road, she looked very anxious and did not respond.
- On 10 September, the social worker, Ms G filed her report, which she supplemented on 23 September.
The hearing
- Statements have been filed by all family members and by Ms AH.
- On the issue of residence, the respondents propose that their mother returns to 1 Parkgate Road to live with Stephen and Ruth, with a care package marshalled by Ms AH. They will pay for the care package under protest if, as is the case, John will not. John's position is that Mrs Aidiniantz should remain in the nursing home unless and until he gains possession of 1 Parkgate Road. The Official Solicitor considers that the nursing home is the best place for Mrs Aidiniantz in the current circumstances.
- On the question of the level of care required, the respondents offer to supplement the care package with medically qualified visitors as required. The other parties consider that full nursing care is necessary. John seeks contributions from the respondents to the costs of the nursing home, failing which he will bear them, assisted by whatever health service funding is available.
- As to contact, the respondents propose that John should see his mother at 1 Parkgate Road for two hours twice a week. In the event that Mrs Aidiniantz remains in the nursing home, all are agreed that she would enjoy more contact than is currently taking place. However, the respondents do not want John to be able to bring his family, while he does not want Ms AH or Mr Siddiqi to have any contact. He said that he had promised his mother that they will not visit her again.
- In relation to financial matters, the respondents seek directions for the Official Solicitor to carry out an inquiry. This is not supported by the other parties.
- Evidence was given by Ms G, John, Ms AH, and Linda.
- Ms G is a social worker who works with adults with physical disabilities. She has assessed Mrs Aidiniantz's circumstances during and since her stay in hospital. She considers that she requires a high level of nursing care in ways that she described. It is her opinion that a fully staffed nursing home is best placed to meet those needs. She considers that the care that is currently being provided is of a consistently high standard that would be very difficult to replicate in the home environment. She acknowledges the advantages of being at home, and agrees that people can be supported at home, but said that home care is not as robust and Mrs Aidiniantz's needs are not predictable. There is no evidence that the family could work together and she would be very concerned about Mrs Aidiniantz living in a home environment where there is such a high level of discord. She has no control over her environment and is not able to remove herself from conflict.
- Ms G's evidence was clear and persuasive, showing a good understanding of Mrs Aidiniantz's predicament.
- John described his mother as being a spirited person who had on the whole had a very enjoyable life. He was complimentary about the care of she is now receiving. He expressed his strong objections to non-family visitors. Despite the evidence of Ms G, he said that he would want his mother to return to 1 Parkgate Road provided the rest of the family moved out. He does not regard Ms AH to be a competent carer and considers her instrumental in keeping him from his mother. Of his siblings' financial allegations against him, he said: "the wheel that squeaks the loudest gets the most oil ... If I gave them £1 million each tomorrow I will be as good as Mother Teresa in their eyes, but that is not likely to happen." Speaking of the trip to Florida, he said "She was taken against her will", and inconsequentially added "It is the last place she would have wanted to go. She has a phobia of lizards and hated crocodiles so she would never have wanted to go there."
- Ms AH explained that she has no formal qualifications. When she started to work with the family in 2013, she had one year's previous experience as a care assistant. She said that Mrs Aidiniantz had come to life in Florida. She had visited her since her return and found her in a very deteriorated and withdrawn state. Ms AH ended her evidence with an emotional appeal to the court, saying that what was happening to Mrs Aidiniantz was breaking her (Ms AH's) heart.
- Linda said that the reason why John had had no contact over a 15 month period was because they were in a legal dispute and her mother had not wanted to see him until the proceedings were finished. "She was saying to me that she did not want to see him and that he had robbed her. Why would she want to see someone who had robbed her?" She believes that Mr Gillman-Smith misunderstood her mother's wishes. A trip to Florida had been planned for a long time. They had not told anyone, including their own lawyers, because they didn't think that it was important for anyone to know that their mother was taking "a two week holiday". Through gritted teeth, she said that with the benefit of hindsight it might have been better if they had asked their lawyers for advice before arranging the trip. If her mother returned to 1 Parkgate Road she would have a care package with no expense spared and John would have no problem visiting. Although her view is that it is not best for her mother to see John as he has robbed her, and when she would not want to see him if she had full mental capacity, she would "go with the court" on contact. She expressed the view that her mother's views did not seem to be being taken into account.
- Linda said that John had embezzled their mother's money and defaulted on his obligation to maintain her. "She has now not got a penny to her name when she was worth £20 million. We want to investigate that." She also said that John could try to do "something dreadful" to their mother: "He could withdraw medication… He seems to think he has the power of euthanasia."
- The final witness was Ruth, who spoke about her sister's natural preference for lively company. The nursing home is good but it is not home, with the natural benefits of having family around.
Discussion
- It is not disputed that Mrs Aidiniantz lacks capacity to make decisions about the matters in issue within the meaning of the Mental Capacity Act 2005, and I so find. I also consider that as a result of her circumstances she is a vulnerable person in need of the protection of the court.
- It therefore falls to the court to make decisions in Mrs Aidiniantz's best interests, applying the provisions of s.4 of the Mental Capacity Act 2005. In doing so, it must consider all the relevant circumstances and, in particular, take the following steps:
- Consider whether it is likely that Mrs Aidiniantz will at some time have capacity in relation to the matter in question.
- So far as reasonably practicable, permit and encourage her to participate as fully as possible in the decisions affecting her.
- Consider Mrs Aidiniantz's past and present wishes and feelings, the beliefs and values that would be likely to influence her if she had capacity, and the other factors that she would be likely to consider if she were able to do so.
- Take into account the views of anyone engaged in caring for Mrs Aidiniantz or interested in her welfare as to what would be in her best interests.
- As to the first three of these matters:
- While it is possible that if Mrs Aidiniantz's physical health improves she may recover some degree of decision-making capacity, this is not foreseeable at the present time.
- Mrs Aidiniantz has participated as fully as possible in the decision-making process by means of the involvement of Mr Gillman-Smith, Ms G and Ms Gieve.
- Mrs Aidiniantz is someone with strong family values, whose already much-reduced ability to assert herself has long been overborne by the ferocity of the family conflict. She would want to be at home if it were possible. She would want to have normal, easy relations with all her children if it were possible.
- The obligation to take into account the views of those caring for Mrs Aidiniantz or interested in her welfare takes me to the heart of the difficulty in this case. I am aware of the views of her four adult children and have set them out above.
- Having done that, I have concluded, uniquely, that I should attach no weight at all to their views about their mother's welfare. These children have, in my view, forfeited the right to have their views taken seriously on the question of what is in their mother's best interests. They have no insight into her obvious longing for peace. The evidence of John and Linda showed only bitterness and contempt for each other. Neither side sees how important the other is to their mother. None of them reflects on their own behaviour. Instead, every action is dictated by the wish to get the better of the other. I have referred to John's aggressive efforts to get Stephen and Ruth out of 1 Parkgate Road and his willingness to put his mother in a home he knows nothing about. I have referred to the respondents' blatant attempts to obstruct John's contact. As soon as Mrs Aidiniantz's voice was heard by outsiders, however faintly, they physically removed her; in 2014 it was to Linda's home, and a year later to the day it was to Florida. That trip was a blatant defiance of the court's intentions and it is a measure of their lack of insight that the respondents imagine that it would be seen in any other way.
- Nor can I attach weight to the views of Ms AH. Normally the views of a professional carer in the midst of a family dispute will be of value, but she has become too emotionally involved and partisan to see where Mrs Aidiniantz's best interests lie.
- I have some sympathy for Mrs Aidiniantz's sister Ruth, but she is in the same camp as Linda, Stephen and Jennifer and has not been able to moderate their behaviour.
Decision
- Turning to the issues and taking account of all the circumstances, I conclude that it would not be in Mrs Aidiniantz's interests to return to 1 Parkgate Road. In the first place, I accept the evidence of Ms G that she needs the care package that is on offer at the nursing home. Two medically qualified staff are needed at all times. Ms AH and those she enlists to help her are unqualified and unsuited to demonstrating the necessary professional standards. Secondly, and more decisively, it is impossible to approve an arrangement that returns Mrs Aidiniantz to her home when her children have turned it into a warzone. If John took over 1 Parkgate Road, things would be no better. Mrs Aidiniantz needs a safe haven from her children's activities, and that is what she has found in the nursing home. She would not have this respite in a setting that was controlled by either camp.
- The family collectively has the means to pay for Mrs Aidiniantz's care in the nursing home. When promoting their preferred options, both John and Linda said that they would pay for them if necessary but would expect a contribution from the other. Now that the identity of the placement has been resolved, the family should act in accordance with that principle.
- As to contact, I will adopt the plan supported by the nursing home and the Official Solicitor for separate daily visiting by both sides of the family. Outings that are acceptable to the home on medical grounds can take place, but I suggest that visits to 1 Parkgate Road are approached with caution.
- Each side of the family can bring whoever they want with them during their contact times, provided the home is content with this. There is no more reason to prevent John from bringing his family than to prevent Jennifer from bringing hers. If she is invited by the respondents, Ms AH can visit from time to time, but she will not be resuming her role as a carer. If anyone thinks it is a good idea for Mr Siddiqi to visit, they can share their time with him.
- I note that the Official Solicitor proposes that visiting should be restricted to family members and that contact with others can take place on trips outside the home. He expresses concern about the role played by Ms AH and Mr Siddiqi. There is in fact no sign of any harm having come from their few visits to date and, given the way in which the family members themselves behave, I cannot share the view that the exclusion of other partisans would allow Mrs Aidiniantz to feel "free of influence". The management of the home should be left to manage these issues.
- While Mrs Aidiniantz resides at the care home, there is no need for a welfare deputy. The management of the home will protect her day-to-day interests.
- Finally, I shall not appoint a property or affairs deputy, nor require the Official Solicitor to carry out further financial inquiries into Mrs Aidiniantz's affairs. I agree with the Official Solicitor that any financial abuse of the elderly is a serious matter, but that here a third party investigation would be complicated, expensive and unlikely to be of benefit to Mrs Aidiniantz, whose needs are currently being met. I will make the appropriate orders for the reception of her modest pensions. Other disputes about money, property and shares can be pursued by her children elsewhere if that is their choice.
Costs
- The parties can make submissions on costs, and I will consider them on their merits. I will nonetheless indicate my current thinking in an attempt to foreshorten matters and save further expense.
- The parties' costs are, broadly:
John £104,000
Respondents £110,000
Official Solicitor £57,000
The Official Solicitor has been given security from the parties equally for the full amount of his costs. There is no reason why the public should bear any of those and I expect to order that the Official Solicitor's costs will be met equally by the parties.
- As to costs as between the parties, the normal rule is that there should be no order. Each side rightly cautions the court against assuming that because there are so many allegations and counter-allegations it is a case of "six of one and half a dozen of the other". I make no such assumption but nevertheless reach the conclusion that there is little to choose between these parties in regard to their litigation conduct and their conduct towards their mother. While the respondents' conduct during these proceedings has been even worse than the applicant's, it would be unrealistic to separate these matters from the overall history. Any departure from the 'no order' principle would probably be in the form of an order that each side should pay the other side's costs as a mark of the court's indignation.
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