A barrister becomes the judge of her client's sanity
A mother is told by her supposed legal representative that she is not 'mentally competent'
7:00PM GMT 24 Nov 2012
Imagine you are about to face an eight-day High Court hearing at which you will fight for what is easily the most important thing in your life. You are an intelligent woman, holding down a responsible job requiring extensive knowledge of the law – which you somehow manage to combine with devotedly looking after two small children.
Shortly before the hearing, you go to meet for the first time the barrister who has been chosen to represent you. You are astonished to be told that the barrister has spoken at length to the other side in the case and read through all their evidence, but not looked at your own, even though this factually corrects almost every point alleged against you. On this basis, without having met you, the barrister has diagnosed you as suffering from a psychological condition known as “querulous paranoia”, and says that you are not “mentally competent” to instruct her. She will therefore, in seeming contravention of the rule that barristers “must at all times protect and promote fearlessly” their “client’s best interests”, disregard anything you wish her to argue in court.
Having already represented yourself three times in front of judges, and won each time, you tell her that you do not wish to be represented by someone who proposes, in effect, to argue for the other side. At very short notice, you arrange to be examined by an eminent psychologist, with long experience as an expert court witness, who, after testing you for some hours, finds you to be entirely rational and competent. You lodge the correct papers with the court to say that you have “dis-instructed” your lawyers and wish to represent yourself.
The court staff agree with your lawyers that you cannot do this, even though you have found case law which states that where someone’s “mental capacity” has been called in to question, they must have the right to challenge this before a court “unfiltered by the discretion of public officials”.
In three years of reporting on the Kafkaesque world of our family courts, I have come across many extraordinary stories, but few more peculiar than this. The last time I wrote about the ordeal this mother has been subjected to by social workers for three years, it was to report on how, appearing for herself, she had persuaded a judge to lift a Prohibited Steps Order, imposed by another judge at the urging of social workers, which prohibited her from moving from her home, in a way which made it impossible for her to work. (Twice she lost highly paid jobs due to other bizarre demands made on her by the same social workers.) She was thus free to move with her children to be near another job, which pays her £350 a day.
The social workers where she now lives say they have no concerns over her competence as a mother and asked to take over her case. But the original social workers refused, continuing to impose demands with which she has, with difficulty, complied because she doesn’t want to give them any excuse to remove her children. Her solicitors, having agreed to a court hearing at the one time in a week when she had said she was unable to attend, wrongly informed the court that she planned to move to Scotland. The same lawyers then retained the barrister, from a chambers which specialises in representing local authorities, whom she is now told she has no right to “dis-instruct”, even though she had never instructed her in the first place. When this mother finally appears before the judge, it must be hoped he will give her every opportunity to put her side of this extraordinary story.
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