Thanks to Alex Ruck-Keene who noticed last week that BAILII had published a Court of Protection judgment by HHJ Edwards in Cardiff in the Welsh language. It’s TIRE (by her Litigation Friend LK) v Carmarthenshire County Council [2024] EWCOP 81 (T2). Alex’s comment is here – The Court of Protection: a Welsh language primer in key caselaw
Although English and Welsh are to be given equal consideration in court proceedings with connections to Wales, this is the first time we’ve seen a judgment from the lower courts actually published in Welsh on BAILII or The National Archives. There don’t appear to be any from the Family Court, although there will be many cases that have been conducted in Welsh.
We’ve realised that it’s hard to find them though, because the listing and headings are published in English on the databases. This particular judgment was given in December but didn’t appear until September, and TNA doesn’t highlight ‘new’ cases although BAILII does.
This case was about an 85-year-old retired teacher who’d been moved into a care home she wasn’t happy with. She wanted to return to her own home and the local authority had had to use deprivation of liberty procedures and apply to the CoP under the Mental Capacity Act 2005 because they didn’t think she had capacity to make decisions about where she lived in her own best interests. The judge describes TE as having been inspirational to her pupils, some of whom now work in the care home and had told the judge how much they respected their former teacher. The judge concluded that it was in TE’s best interests to remain in the care home and helped to understand why she was there, as there was no option of her safely returning to her former home even with support.
The judge makes an interesting point in para 7, which we have therefore written here in English (possibly not entirely accurately):
I was concerned about the evidence as there is a shortage and lack of psychologists who can speak Welsh. For a person like TE who is bilingual and exceptionally good at it, some elements can get lost if you communicate without using your mother tongue. That is more likely in a situation where people are getting older or on the verge of losing capacity. Because of these concerns, I have scrutinised the evidence relating to capacity very closely. I have also visited TE.
HHJ Edwards is the Welsh language liaison judge for Wales. She has commented:
In Court of Protection cases, we see a definite trend in individuals who have failing or reducing capacity to revert to their mother tongue, Welsh. This is the case regardless of their professional careers, which have often been conducted in and through the English language. This presents real issues in terms of the availability of resources through the medium of Welsh, be that in care homes, support services or capacity assessments. Those concerns have been raised with the OPG (Office of the Public Guardian).
It may be that this published judgment helps achieve more tryloywdr (transparency) in decision making in Wales, especially as it includes an appendix setting out the application of relevant Mental Capacity Act provisions in Welsh, compiled by the parties’ lawyers.
Image: thanks Jaggery at Geograph Project
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