Today I attended a Court of Protection hearing as a member of the public, with another colleague. I did so on an unplanned basis, as I was in court for another hearing and we could not resume our hearing until our judge had finished dealing with the Court of Protection matter in his list. So, spotting the Court of Protection public hearing injunction notice on the door of our courtroom, we asked the ushers if we could attend.
After a little shuffling around behind the usher’s counter to find ‘that transparency form‘ that we had to sign, and after being pointed in the direction of someone with a bundle who could show us the transparency injunction, we were able to sign in and huddle at the back of court to see what the case was all about. The impression was that people don’t ask to sit in on Court of Protection hearings very often.
We read the injunction order, which seemed to be in template form, and chatted about the impenetrable complexity of its wording before being called in dead on the listed time.
it was an illuminating experience, but not entirely for the reasons I had expected.
The case was about care arrangements for a woman who lacked capacity, and one of her children was in dispute with his siblings and the local authority about whether or not she should move back home or should stay in a care home. Everyone apart from the son, whose application it was, thought she should stay where she was.
The judge decided that there was not enough time to deal with the hearing properly and listed it for a longer hearing on another date. In the meantime the woman would stay where she was, as one of the main issues in the case was whether an attempt to move her would be harmful or distressing, and whether it would be so harmful and distressing as to override all potential benefits of moving her.
What was interesting about this hearing was the difference in perspective between the lawyers row in court and the back of court. It feels very different as an observer, for a number of reasons – and my overwhelming thought throughout was that this experience gives some much needed insight into what it may be like as a litigant in person, or a party sitting behind their lawyer in court.
My experience was discombobulating and uncomfortable. It was very difficult to follow what was going on and the lawyers chuntered on, oblivious to how inaccessible the proceedings probably were to the family involved (one of whom was in person and spoke clearly and economically on behalf of his siblings).
Although the District Judge’s courtrooms at Bristol Civil Justice Centre are relatively small, I was surprised at how distant and remote the judge was from the row of seats against the back wall. It was very hard to hear – the judge himself was softly spoken, but the biggest problem was in following the voices of the lawyers, which were all projected towards the judge. At times the voices sounded not unlike the teacher from Charlie Brown whose words are melodic and ebb and flow in a soothing way, but are utterly indistinct, like a soft trumpet.
Although everyone in court (included me) were introduced by name, these were skipped over swiftly in the expectation that everyone present knew who was who (to be fair it was apparent this judge had dealt with the case before, but at least one of the advocates was new to the case). Seeing only the backs of their heads made identification and remembering who was who harder. For me it took most of the hearing to work out who was representing who, how they related to one another and who the various people at the back of court were (mostly social workers). A reminder that as lawyers we ought not to assume that the litigants in court necessarily know who is who (reinforced by the fact that my client at the end of day 2 of a recent trial said ‘who is that bloke with the beard’? That bloke was counsel for the local authority). I said to the lay parties in my case that I hadn’t realised how difficult it was to hear further back – ‘Oh yes’, they said, ‘We couldn’t really hear the evidence yesterday’. We should not assume our clients are hearing, let alone understanding.
Part of the difficulty for me as an observer was the lack of documentation, which won’t apply in quite the same way to parties. Although the press are entitled under the CoP Rules and PDs to sight of certain documents, there is no such automatic right for other observers, although I suspect if we had asked no particular objection would have been made. The hearing was made harder to follow by references to this position statement and that position statement, and in another case this might have entirely frustrated the purpose of attending, but in this rather languid meandering hearing there was just about time to pick up the thread and work out what was going on – for a lawyer with some experience in a sister jurisdiction. But for a non-lawyer I guess that it would have been much harder to process barely audible and unfamiliar terminology and shorthand at speed, and that even written documents would not really help much.
Much of the discussion between lawyers and judge was somewhat abstract and complex – there were some slightly tortured, circular seeming discussions about the difference between the possible, the practical and the appropriate, and whether such decisions were in the nature of a best interests decision at all – and on whether the court should conduct a truncated best interests exercise or not. Those ponderings took so long that ultimately, after half an hour, everyone concluded there was now not time to deal with the hearing anyway so it was just as well to adjourn until a longer hearing could be convened and a full rather than truncated best interests decision could be made. Lack of court time and the availability of various key players in the case meant that a hearing that would have been ready for a decision in mid September could not be accommodated until mid October. Our old Family Court enemy Mr Delay making an appearance here too…
When attending public hearings in the Court of Protection the only restriction (usually) on what can be published is information that might identify the family or that might identify their place of residence, care setting or contact details. I was reminded how different this will be from the scenario from October in the family court where legal bloggers will be allowed to attend court under a new pilot. Although superficially similar the scheme is different in some important respects, and narrower in its effect. Hearings will continue to be held in private, and s12 restrictions on the publication of information from these hearings will continue to apply unless the court relaxes them. Were this hearing about the care arrangements for a child attended under the pilot I could have reported little of it in this blog post without the permission of the court (Even if it had not posed any risk of identification). And, had I not been a lawyer I would not have been entitled to attend in any event.
There are many questions to be worked through when the new pilot comes into being on 1 October – faced with a situation like this would I have asked for sight of documents? would I have asked the judge orally at the end of the hearing if he minded me reporting the gist of the hearing without any geographical or identifying details? Would anyone have objected? Or would I have taken some other, more formal approach, such as making an application in writing? Would the judge have permitted this basic level of reporting or would she have postponed a decision until the end of the case, when perhaps a judgment might have been published anyway? And even at that stage, would I then be permitted to report those details not contained in the judgment – my impressions of the parties, the body language, the unfolding dynamics, the moments when the direction of the case obviously shifted? How are these issues best managed without disrupting proceedings or inadvertently frustrating time estimates?
In the Court of Protection hearing I attended our presence did not seem to impede or upset anybody and there was no resistance to our attendance. I am not sure that the reaction will always be the same in the family court but much (I suspect) depends on how we utilise and work with the proceedings in ways which make use of the opportunity without causing upset or disruption. Communication with the lawyers and parties in the case before being called in to ascertain the lie of the land is likely to be important.
I am looking forward to testing out the legal bloggers pilot but it is at once and interesting and daunting prospect.
More details of the legal blogger’s pilot can be found on The Transparency Project website here.