This is a guest post by Celia Kitzinger, co-director of the Coma and Disorders of Consciousness Research Centre and Honorary Professor, Cardiff University School of Law and Politics. She tweets as @KitzingerCelia and can be contacted at: email@example.com
‘Open justice’ is a cornerstone of the legal system for England and Wales. The Court of Protection makes life-changing decisions on behalf of vulnerable people, such as where they live, who they can have contact with, what medical treatments they must have. These are decisions with huge consequences for the person at the centre of the case (known as ‘P’), and for their family – and they engage fundamental human rights. There is a clear and legitimate public interest in knowing what decisions are made by the courts and how those decisions are made.
Between January 2016 and late March 2020, most Court of Protection hearings were heard in public, although in fact very few people actually attended these “public” hearings other than those directly involved. At the end of March, in response to the public health emergency, this changed. Following publication of Guidance from Mr Justice Hayden, Vice President of the Court of Protection, remote hearings (hearings held over phone or video platforms) became the default position and – in accordance with a template order provided as an Appendix to the Guidance – these have often been listed as “private”, often specifically excluding the press and other observers, as well as members of the public. There is however a process for accessing “private” hearings – though I only became aware of this after a couple of weeks (more about this below). There is some concern that important decisions are being made without public scrutiny, and I know that some members of the public feel they have been prevented from attending. This is not good news for a Court that has worked long and hard to make hearings accessible and to debunk the myth of the ‘secret’ and ‘shadowy’ court.
This article addresses that concern, by first describing my own experience of observing remote hearings in May 2020, and then offering guidance about how to (1) choose a hearing to observe; (2) gain access to a hearing; and (3) prepare for the hearing. I end with some encouragement to other members of the public to attend court hearings.
My court observations in May 2020
During May 2020, I launched a project with the aim of observing the equivalent of one Court of Protection hearing per working day for a month. I met that target and observed 19 hearings.
The hearings I observed covered 17 different cases in the Court of Protection before 12 different judges (4 High Court, 2 Circuit and 6 District judges). Five were listed as “private”; 8 were listed as “public” or “open”, and 6 gave no information about their status when listed. With two exceptions, they were all London-based: access to hearings outside of London is much more challenging and this is something I’m trying to progress during June. These 19 hearings from May 2020 represent a total of 27.5 hours of courtroom interaction (ranging from 30mins to 6 hours per hearing). Hearings were conducted by phone (11), or via video-platforms (Skype (3), Microsoft Teams (3) and CVP (2)). Additionally, I have been sent paperwork associated with these cases (e.g. transparency orders, copies of draft and/or agreed orders, position statements, agreed summaries) and barristers, solicitors and some judges have taken the time outside court to answer my questions about points of law and fact related to the cases I’ve observed.
I am not a journalist, nor a “legal blogger” (as defined in a pilot scheme currently running in the Family Court that allows qualified lawyers acting as ‘legal bloggers’ to attend “private” hearings). My observations were as a “member of the public” – so what I observed could, in principle, have been observed by anyone.
Here’s a flavour of some of the cases I observed in May 2020.
- An elderly woman with dementia, currently in a care home, wants to return home but can only do so safely with the support of carers. At a previous hearing it was decided that it’s in her best interests to return home but she can do so, it seems, only if her son, who had lived with her, leaves the house. He is reported to have behaved badly towards carers in the past, and is now refusing to let visitors into the home. In any case, care agencies are now not willing to send carers to the home while he is in the house. During the course of the hearing, news comes through via email to one of the advocates, and is read aloud to the court, to the effect that the son has just been arrested and taken to the county court for failing to comply with a vacant possession order. A locksmith is now en route to change the locks on the house. His sister, in court, is expressing concern about her brother being street homeless during a pandemic.
- A man in his 50s with long term cognitive impairments arising from alcohol abuse does not want to be moved from his current care home into the residential accommodation the Local Authority has chosen for him. He wants more freedom and control over his own life. In a 20-minute pre-hearing conversation with the judge he has explained that he objects to the restrictions imposed upon him and that he hasn’t had a drink for a long time. The Local Authority are keen to move him as soon as possible, worried that they will lose the placement, and pointing out that he would be subject to similar restrictions in any placement because of the risks of his relapsing into alcohol abuse.
- A woman in her 20s with “mild learning disability” and Asperger’s has been detained against her wishes in a care home since April 2019. She has primary ovarian failure and is refusing sex hormone replacement therapy. Her mother says her daughter is an adult and it’s her right to refuse treatment. The Local Authority applied to court for an order that all contact between mother and daughter should be suspended for an initial 6-month period, because they believe the mother is exerting an undue influence. They hope to be able to engage the young woman with medical appointments and treatment if her mother is removed from the scene. The mother says that since her daughter has been deprived of her liberty in a care home she has deteriorated and become depressed and withdrawn. She describes the proposed order as “cruel”. She wants to continue to visit and phone her daughter and to increase frequency of contact, stating that she would be able to positively influence her daughter to engage with treatments.
The fact that I was able to observe 19 hearings like this (including some labelled “in private”) during a global pandemic, at a time when the courts were desperately over-stretched and judges were having to adjust very rapidly to novel ways of working under very challenging conditions, is a triumph for open justice in the Court of Protection. From what I’ve heard of other would-be public observers’ experiences (and also the experiences of some journalists) in other parts of the justice system, I seem to have enjoyed unparalleled access. But as I’ll describe here, it took a huge amount of time (probably around 19 hours of list-checking and arrangement-making on top of the 27.5 hours I spent in court) as well as dogged persistence, repeated emailing, and the background support of some friendly lawyers to make this happen. The Court of Protection is definitely ‘open’ – but there are some barriers to access. In explaining how I was sometimes able to overcome the barriers, I hope to inspire others – especially perhaps those who tell me they have tried and failed – to take the opportunities offered by a Court whose intention is certainly openness.
As a result of tweeting about the hearings, some members of the public have contacted me to ask how they too can observe Court of Protection hearings. For example someone whose mother is the subject of a Court of Protection hearing in the near future wants to observe what these hearings are like before experiencing it at first hand; a speech and language therapist whose colleagues have been involved as witnesses in previous cases would like to observe to find out more about how witnesses participate in hearings; a nurse working in palliative care is interested to see how judges make decisions about life-sustaining treatments; an advocate is keen to observe how reasonable adjustments are made to enable equal access when hearings are conducted remotely. I’ve even been asked by a pupil at a leading chambers for help with access to Court of Protection hearings.
So, how can members of the public gain access to remote Court of Protection hearings?
1. Choose a hearing to observe
Court of Protection hearings are listed in three different locations.
This ‘Court of Protection daily cause list’ is the most user-friendly way of accessing information about forthcoming hearings. The cases listed here are heard by District Judges, currently mostly by phone. During May 2020 there were relatively few hearings listed – usually between 2 and 5 a day, but on at least one date, none at all.
The information provided on this list includes the name of the judge, the date and time of the hearing, and a time estimate (“T/E”) as to how long it will last, the case number and name (if it has one), and often some indication of what the case is about.
In this example, taken from the list of 22 May, three hearings are listed – two before District Judge Beckley, and one before District Judge Ellington. There’s no information about the issues that will be addressed in DJ Beckley’s hearings at 10.30am and 2pm but for DJ Ellington’s hearing, we’re told that it’s a “Direction” hearing (i.e. this won’t be a hearing at which final decisions will be made but one that establishes what needs to be done in advance of a final hearing) and that it concerns “Where DW should live”. It also says “IN PRIVATE” in capital letters, which almost certainly means that most members of the public wouldn’t think to ask if they could attend. I had been advised by a friendly lawyer to ask to attend ‘private’ hearings – which I pretty much needed to do by this point since almost all COP hearings were marked “PRIVATE” (like all three on this list for 22 May) – so I did, and it turned out to be the case of the elderly woman with dementia described earlier.
The second case described above also came from this list where it was listed as a “public” hearing like this:
In The Court of Protection
Thursday 28 May 2020
Before DJ GROSSE
Start Time Case Details
10:30 AM 13080887 LONDON B LAMBETH AND JM, JJM, AND GUYS AND ST THOMAS NHS TURST. TP CONSIDER VARYING OR TERMINATING AN URGENT OR SA UNDER DOF LIBERTY SAFEGUARDS Telephone Hearing; PUBLIC HEARING WITH REPORTING RESTRICTIONS T/E 1HOUR – REMOTE HEARING
I didn’t realise, at the beginning of May, that this website only lists hearings at First Avenue House. Around mid-month it dawned on me – it doesn’t anywhere explain – that hearings with more senior (“Tier 3”) Court of Protection judges do not appear on this website but only on the ‘Family Division’ list (see ii below) and that hearings at the ‘regional hubs’ of the Court of Protection (see iii) are listed completely separately on CourtServe. The heading of this list, the ‘Court of Protection daily cause list’, is somewhat misleading in that it only covers a fraction of the COP cases that are scheduled for any given day.
Some applications to the Court of Protection must be heard by senior (High Court) judges (Tier 3 judges). They sit (as a matter of law) in the Court of Protection, but they sit (physically) in the courtrooms that they use when sitting as High Court judges in the Family Division. (At least, that was the normal situation before the public health emergency which means they are now in fact sitting in their homes.) Cases that must be heard by these senior judges include serious medical treatment cases (e.g. sterilization), declarations that a course of action is incompatible with human rights protections, and ethical dilemmas in untested areas. Not surprisingly, these are the cases most likely also to attract the interest of the media.
To find COP cases on the Family Division list, look for the words “Also sitting as a judge in the Court of Protection” below a judge’s name. At least one of the hearings listed for that judge is likely to have the case number preceded by the initialisation “COP”, which tells you that it is a Court of Protection hearing.
There’s generally (even) less information on the Family Division website than there is on the First Avenue House site.
On 1 May 2020 I observed a case before the Vice President of the Court of Protection, Mr Justice Hayden and blogged about it here. As I describe in that blog, the hearing appeared in the list with only the name of the judge, the date and time of the hearing, a reference number with initials, the words “Remote Hearing” and (in capitals) “FOR HEARING IN OPEN COURT”. It would be useful to have some kind of indication of what cases are about (e.g. “DOLS”, “capacity assessments”, “contraception” etc) – but at least it’s obvious (once you know!) from the fact that these Court of Protection cases are listed before a High Court judge on the Family Division list that they concern weighty matters of public significance.
My experience is that all the COP hearings before a High Court judge are held by video-link rather than telephone, which makes them much easier to follow (and far more engaging).
Anyone wanting the opportunity to observe a COP hearing out of general interest would probably do best to wait for a hearing before a High Court judge. Court of Protection hearings before High Court judges are, however, relatively infrequent (I spotted five in May) and they can last for the entire day – whereas there are many more hearings on the other lists and they are usually much shorter (often under an hour). Those who are interested in COP hearings that address specific issues will do best by browsing the list for First Avenue House which includes (for example) “deprivation of liberty”, “statutory will”, “where P should live”, “welfare deputyship” as tags for appropriate cases.
Hearings taking place outside of central London are (in theory) all listed on CourtServe.
Although the Court of Protection is based in London, it has seven regional hubs: North East-East (with a regional office based in Leeds), North East North (Newcastle), North West (Manchester), South East (Reading), South West (Bristol), Midlands (Birmingham) and Wales (Cardiff). Full contact information is provided here. Unfortunately, there is no information on the site about the seven regional lead COP judges who – I now understand, having talked with two of them – have overall responsibility for each region, nor is there any information about the precise scope of these geographical regions.
Courtserve is a court and tribunal listing service provided by Courtel Communications for the Ministry of Justice. Anyone can sign into this service and create a free account which then allows you to search it. Look under “County Courts” for Court of Protection hearings outside London. There is a “Court of Protection” tab within “County Courts” – although it took me some time to find it since it is rather oddly located in alphabetical order between “Clerkenwell’ and ‘Coventry’. What’s more, only a minority of COP hearings are listed there and a trawl through the 100s of pages of CourtServe lists, town-by-town and judge-by-judge, usually throws up as least as many cases again. For example, on Saturday 30 May I was trying to figure out which CoP hearings were happening on the Monday (1 June). The CourtServe COP list had 5 hearings listed for 1 June (one each in Brighton, Guildford, Oxford, Reading and Watford) but trawling through the rest of CourtServe looking for additional CoP hearings I found 8 more (3 in Leeds, 2 in Wrexham, and 1 each in Nottingham, Taunton and Guildford). I don’t know why these hearings were not also listed under the CoP tab (and it’s curious that one from Guildford was so listed and another was not). It takes me upwards of an hour to trawl through CourtServe to find COP cases and many lack “COP” prefixes before their case numbers and so are hard to identify. Unlike most other case numbers there are no letters in a COP case number; they are 8 digits starting with number 1. Of 19 hearings scheduled for 8 June which I managed to locate via Courtshare (and posted on twitter on 7 June), 13 began with the digits “135” which seems (at the moment) to be a helpful indication that a case is a COP hearing.
For example, on 5 June I found these two cases from CourtServe under “Newcastle” (and not under the COP tab). They can only be identified as COP hearings by people who can figure out that they must be so from the description of the issues – plus I have learned enough to recognise from the case numbers that that’s what they’re likely to be. Obviously few members of the public would be able to identify them like this.
I did manage to observe two hearings in the regional hubs during May – one of which was the medical treatment and family contact issue for the young woman with primary ovarian failure, which was heard in Newcastle before HHJ Moir. As you can see from Illustration 3, there was absolutely minimal information available to the public about this hearing – just the fact that it was a COP hearing and a number: the “R” apparently means “Remote” and “CVP” is the Cloud Video Platform that Her Majesty’s Courts and Tribunal Service has been rolling out since May. It also doesn’t say whether the hearing is ‘public’ or ‘private’.
This hearing was not listed under CourtServe’s “Court of Protection” tab, nor was there any information about the issues it addresses: it was pure chance that I stumbled upon it. Yet it raises very serious issues of human rights: right to privacy and family life, right to refuse medical treatment, and deprivation of liberty. There is a strong public interest in knowing how and why the Court can keep a young woman who wants to return home in a residential placement that makes her unhappy, with the intention (unsuccessful after nearly a year) of persuading her to accept medical treatments she doesn’t want, with the plan of separating mother and daughter in pursuit of this aim.
I believe that improved lists for hearings outside of London should be a major priority for those who believe in transparency and openness in the Court of Protection. Until then, I advise casting the net of your observations widely and randomly selecting not-particularly-interesting-looking hearings to observe in the regional hubs – because while journalists congregate in the Royal Courts of Justice in London, these equally ethically troubling issues are being raised and dealt with without any public scrutiny in the regional courts.
2. Gain access to a hearing
You have the right to observe hearings listed as ‘open to the public’ and do not have to ask for ‘permission’ to do so. All you are asking for is access details so that you can be included in the conference call. My emails say something like this:
“I am a member of the public and I would like to observe the hearing before DJ Bloggs which is being held remotely in open court at 10am (case number: 12345678). Please could you tell me how to gain access. My phone number is xxxxxxxx. Thank you”.
When hearings are not listed as open to the public, or when they are explicitly labelled ‘private’, it is still worth asking for access – but in this case you are asking for the judge’s permission, and it can be refused. In fact, I have never been refused on this basis. The Vice President’s Guidance [paragraph 59] expressly encourages judges to facilitate access to a remote hearing to the public. Many remote hearings have been listed as ‘private’ by default, because of the current difficulties of sitting in public by remote means and so lawyers have used (and judges have accepted) without amendment the template order on the Guidance of 31 March 2020 from the Vice President of the Court of Protection (see paras. 8 and 9 of the Order at pp. 18-20). As is apparent from this order, it can be amended by the judge if someone wants to attend the hearing, and the only way in which (in practice, in my experience) it differs from a request to attend a ‘public’ hearing is that if you are a member of the public (not a journalist or legal blogger) you are required to state your reasons for wanting to attend, which the judge will take into account in deciding whether or not to give permission. In such cases, I send the same email as above but without the words “in open court” and I add a reason (e.g. “as part of my research on the operation of the Court of Protection during the global pandemic”).
The real problem is knowing who to send this request to.
First Avenue House usually provides email contact details at the top of the listings page. This sometimes disappears (see Illustration 1 where it is missing) but when it’s there, it reads: “If you wish to observe a hearing, please contact JST on 0207 4218718 (email: firstname.lastname@example.org)”.
The list on the Family Division (High Court) site requires you to email the judge’s clerk for access information, and it’s impossible to discover who that person is (e.g. via google). They do however offer the opportunity to email them at email@example.com asking for the clerk’s email which they say they will provide to “accredited Members of the press or legal bloggers who wish to attend a remote hearing”. While this is definitely off-putting for the rest of us who want to attend a public hearing as members of the public, I have used their email address successfully to obtain judges’ clerks’ emails and have been admitted to several public hearings via that route.
CourtServe usually provides no information at all about how to gain public access to remote COP hearings. Throughout the period that I’ve been accessing it, the vast majority of hearings have been labelled (in bold capital letters) “IN PRIVATE – NOT OPEN TO THE MEDIA OR THE PUBLIC”, so the absence of contact information simply reinforces that message. I usually end up googling the court at which the hearing is to be held and sending an email to the address provided for enquiries to the court. Whether or not contact information is provided, the person on the end of the phone or email in county courts usually has no idea whether or how a member of the public can gain access, and this is obviously a huge deterrent to open justice.
From the outset of my project, I quite frequently encountered difficulties with staff who in effect (however nicely!) blocked my efforts to observe hearings by acting in accordance with what they wrongly believed to be required of them. In the early days of May 2020 it was the staff at First Avenue House. Then, after that was sorted out – and I have since received a great deal of help and support from these staff – similar problems arose with staff in the regional hubs. For example, I’ve been told by five different staff members on five different occasions that all remote hearings are held in private, so if I want to observe a court hearing I will have to wait until after the pandemic and observe hearings by attending in person. They’ve explained that I cannot be permitted to attend remote hearings because I might unlawfully record them; or because my g-mail address makes it impossible to check my credentials as an observer. Most members of the public would have accepted that response and lost the opportunity to observe hearings. Rather than place staff in a difficult position and seem to be arguing with them, I have always simply asked for my request to be referred to a judge – and then there is always a much more welcoming response. It would be possible however to point staff to the Vice President’s Guidance (e.g. paragraph 59 where the Vice President says that “[t]ransparency is central to the philosophy of the Court of Protection. Whilst it will be difficult to ensure that a Skype hearing is as accessible to the public as an ‘Open Court’, this does not mean that transparency can become a casualty of our present public health emergency.” Clearly, court staff, as the interface between the public and the courts, serve a vitally important role in communicating the openness (or lack of it) of the courts and need support and training to do that role well.
The biggest problem with access, however, is not that anyone actively prevents me from observing but that there is no reply to requests to observe – meaning no possibility of access to the conference call. My emails usually get an automated response expressing the aspiration to respond within 10 days. This is of course completely useless, since the cause lists for First Avenue House and the Family Division are usually posted late afternoon the day before the hearing which means that time is tight for arranging access– especially for morning hearings. (CourtServe sometimes lists hearings up to five days in advance.) Busy staff, during a pandemic, managing a sudden move to remote justice simply don’t find time to answer emails. A clear subject line with timely and familiar information (e.g. “10.30 today 5 June: Case 12345678”) definitely helps encourage staff at least to open the email.
On 7 occasions in May I was unable to attend a hearing because I did not receive a response to my emails (and follow-up phone calls) in time. In another 8 cases, the hearings were adjourned or vacated (i.e. they didn’t happen). I learnt that to meet my target of 19 hearings during May I would need to ‘double-book’ myself on the assumption that one of the two scheduled hearings would not actually take place, or that I would not gain access to it. (Sometimes they both worked out and I’d have to explain and apologise to court staff who’d helpfully set up arrangements for me to attend one of the hearings.)
In my experience, then, the problem of gaining access is not primarily down to the Court being closed, secretive, shady, or determined to conduct its business behind closed doors. There is no conspiracy to exclude us. Problems of access are rather the unintended consequence of rapid change, insufficient support for court staff who are doing their best under difficult circumstances– plus the sheer unfamiliarity of receiving these requests from a member of the public. The moral is: if your initial request to attend a hearing is refused by staff or ignored, keep trying!
3. Prepare for the hearing
Motivations for observing hearings in the Court of Protection are very varied – from preparing for participation in a hearing of your own (e.g. as a party, a witness, an advocate, or a litigant in person) through to acquiring a more general professional understanding of how the law works in practice in this area. I attended one face-to-face court hearing some years ago (to support family members of a patient) where a script writer was observing proceedings with the intention of maximising the authenticity of the play she was writing. Obviously how you prepare depends on what you hope to get out of your observation, but here are some general pointers.
First, in advance of even asking for access to hearings, it is sensible to do some background research and gain an understanding of how these hearings are supposed to proceed. The most helpful guide is the Court of Protection Handbook, and information specific to remote hearings in particular is laid out in the Guidance of 31 March from the Vice President of the Court of Protection. This latter resource covers useful information such as the range of different platforms used (which enables you to ensure you have any necessary software in advance), and some of the issues that may be raised at the opening of the hearing e.g. whether there is any unauthorised person who can see or hear the proceedings from your device, and the prohibition on making a recording of the proceedings. Information intended for participants in telephone and video hearings is often equally applicable to observers, such as this guidance on the HMCTS website here.
Once it’s been confirmed that you have access to a hearing, make sure you’re ready to get the most of the experience by obtaining whatever information you can get in advance about the case you’re going to observe. You may or may not be sent a ‘Transparency Order’ in advance – this is rather hit and miss in my experience. The Transparency Order is a rather daunting injunction telling you that you can be found guilty of contempt of court and may be sent to prison, fined or have your assets seized if you make public any information that identifies or is likely to identify the person who is the subject of the proceedings, or any member of their family – and sometimes other people, organisations, places and public bodies as well – as being involved in Court of Protection proceedings. If you are sent it in advance, you will probably be asked to confirm in court that you’ve read it. It also usually gives you a little more information about the issues that will be addressed in the hearing.
I usually respond to an email confirming access to a hearing with a request for a Transparency Order if one hasn’t already been sent, and also ask whether it would be possible to have position statements or draft orders to help me follow the hearing. They are rarely sent at this stage, but it’s always worth asking. (I got 3 such documents in advance across the 19 hearings observed.) I also now regularly include the following paragraph:
“I would be grateful if you could also draw the judge’s attention to this letter from Mr Justice Hayden, Vice President of the COP which makes a helpful suggestion for improving access when members of the public, legal bloggers + journalists join a hearing. As you will see, he suggests ‘a short opening helping to place the identified issues in some context.’”
This suggestion has always been followed by a hearing in which either the judge or the advocate for the applicant launches the hearing with a summary of the case thus far. Without this, hearings can be completely baffling – like walking in midway on a conversation between people you don’t know about people you’ve never met concerning issues you don’t understand. An opening summary is invaluable in terms of orienting an observer to the law and facts of the case and enabling us to follow proceedings. No such summary was ever produced in hearings when I did not send this paragraph, so it’s definitely worth doing this.
Then there are more mundane but very important matters. If it’s a phone hearing you need to be somewhere quiet and know how to use your mute button. It helps to have headphones to improve audibility and to leave your hands free if you plan to take notes. If your phone is not muted (either by you or by the administrator of the conference call) you will not be able to type your notes – it’s simply too noisy. There are recurrent problems with volume and interference on the lines in all the telephone hearings I’ve observed. In a video-hearing you will not use your video camera most of the time, but are likely to need to do so at the beginning and end of the hearing, so you need to be dressed reasonably smartly and have a suitable background. Emerging etiquette seems to be that everyone involved in the call, including observers, should be visible with their camera on at the beginning of the hearing – one clerk said “as a courtesy to the judge.” (Although one barrister tells me the effect of this was to crash the call and that cameras were off from then on.) You may also be asked to confirm at the beginning of the hearing that you have received the Transparency Order, and should be visibly present so to do. I have also often been addressed by the judge at the end of hearings (e.g. asking whether I want access to position statements) and again it seems only courteous to turn video back on to respond to questions. In preparation for a hearing I stick an “In Court” label on the bedroom door to avert family interruptions, rotate my desk so that the backdrop is a blank wall (and not the bed), provide myself with water, notebook, pens and ensure my phone is on mute.
One of the most difficult aspects of a telephone hearing is getting a grip on who else in on the line – both their names and their roles (i.e. who is the applicant’s advocate; who is representing the person at the centre of the case etc). It is always worth logging in to the conference call 10 minutes early in the hope that you might be given admittance and find others on line before the judge arrives and can ask them for this information. It can also sometimes be challenging to tell who is speaking – this is sometimes also a problem for the participants themselves. Paying attention early on to people’s accents and manner of delivery will help you to identify them later. If it’s a video-hearing, it’s much easier to identify the participants by name (their names come up on the screen) and of course to tell who is speaking – although roles may be more difficult to decipher when there are large numbers of people involved. Sometimes judges ask for everyone to say who they are and what their role is at the beginning of the hearing (which really helps) but often they do not.
Preparation for the hearing includes being aware of the different ways in which judges may perceive you and the ways in which you may need to adapt to that as an observer. In my experience, some judges treat an observer as a ‘fly on the wall’ and try so far as possible to completely ignore their presence. Others treat the presence of a public observer in court as a ‘risk’ to be managed (e.g. in one case by directing that nobody in the courtroom – including P’s family – should use P’s real name or the name of her care home and reminding them every time they slipped up). Some – and this is increasingly my own experience – treat the observer as a partner in the shared enterprise of increasing the transparency of the courts. The expectations attached to this latter role are the most demanding, since these judges show a clear investment in ensuring that the observer understands the business of the court and can report it accurately. This is not a time to be otherwise engaged in reading your emails or making a cup of tea! For example, one judge interrupted counsel about half an hour into the hearing, addressing me directly to ask if I knew the meaning of a particular initialisation; several judges have asked advocates to “read out para XX since the observer doesn’t have a copy of the order”. Another judge interrupted proceedings to email me a draft order there and then so that I could follow the discussion of it – and directed counsel to wait until I confirmed that I had received and opened it before allowing him to proceed. The reasons that you give for wanting to attend a hearing will obviously shape the judge’s perception of your role in court.
At four different hearings I was invited to address the court on anything I wanted to say at the end of the hearing. Be circumspect if this happens to you: obviously this is not the time or place to express your political or ethical views, to comment on the conduct of the court, or to express your views about the agreed order or the judgment. You can just say thank you for the opportunity to observe. As an academic researcher, I’ve taken this as a chance to ask for position statements (or if those are not forthcoming, a ‘neutral’ summary) and the agreed order. Where there have been previous hearings in the same case, it’s possible to ask for the earlier judgments too. So when the judge in the ‘primary ovarian failure’ case I described earlier offered me the opportunity to address her at the end of the hearing, I asked for the judgment from a year earlier in which it had been decided that this young woman lacked capacity to make her own medical decisions and that it was in her best interests to be administered sex hormone therapy she’d said she didn’t want. It turned out that this earlier judgment had not been anonymised or placed on BAILII – meaning that this significant decision about serious medical treatment was not in the public domain. I asked whether it could be made so available, since it is clearly a case engaging important human rights issues and, as such of public interest, and I also requested that the forthcoming judgment (from the current hearing) should be made public. The judge directed that both judgments should be placed on BAILLI, something I think would not have happened without my involvement –another small contribution to increasing the transparency of the courts.
Encouraging public observation
In 15 of the 19 hearings I observed during May, I was the only person in court not directly involved in the case. Hearings by High Court judges (especially the two I observed with Mr Justice Hayden as judge) were the exception. In the ‘ordinary’ cases heard by less senior judges, and in the cases heard in the regional hubs, there was no-one but me to bear witness to the process whereby a decision might be made (judgments are still outstanding in two cases) to evict a son in an elderly patient’s ‘best interests’, to move someone into a home they don’t want to live in, or to prohibit contact between mother and daughter in order to support a vulnerable adult in accessing medical treatment. Few of these judgments will ever be made public via BAILLI.
The Vice President of the Court of Protection, Mr Justice Hayden, has said: “Transparency is central to the culture of the Court of Protection”. In my experience, that is more aspiration than reality. It accurately reflects the judiciary’s commitment to open justice as a fundamental principle, but it doesn’t – on the whole – reflect what’s happening in practice.
I publicly communicated my concerns about the lack of transparency in practice (i.e. my lack of access to hearings especially at the beginning of May) via Twitter, and followed up with a letter to HIVE (the core group established by the Vice President to secure and support the work of the Court of Protection during the public health crisis). This group has been responsive to my concerns, has consulted with me (via email and via a Zoom discussion with Lorraine Cavanagh QC, a member of HIVE) and is very clearly committed to addressing the barriers to public access to remote hearings. It is clear that the Court of Protection is strongly committed to the principle of open justice and will be taking steps to further implement it in practice, especially to try to remedy the list and access difficulties.
Observation of court hearings will always be of minority interest. They can involve long stretches of incomprehensible (to me) discussion of legal points related to agreeing an order, or scheduling of meetings, or who is responsible for paying the costs of an expert assessment. They’re really not like courtroom dramas! But I think many people with interests in mental capacity, human rights, and vulnerable persons – including especially those working in health and social care – would be intrigued to see how best interests decision-making is done in the courts, and that it would benefit their professional practice. I very much hope that knowing a little more about the nuts and bolts of gaining access to remote hearings will encourage more people to observe hearings in the Court of Protection
Please, give it a try. Contact me if you want help (firstname.lastname@example.org) and I’d love to hear how you get on!
 The Court of Protection was not included in the terms of the Coronavirus Act 2020, specifically schedule 25.