A Stop-Start Hearing

By David Haxon, 24th July 2020

I work as a brain injury case manager and I wanted to observe a hearing because one of my clients has recently been the subject of a Court of Protection hearing with a challenge to capacity, residence and deprivation of liberty. I wasn’t involved in the Court process but was made aware of what went on.  Following this, I was interested in observing the Court process for myself and set aside a Friday to do that.  

I observed “COP 13155577 Re: M” which was listed in the Family Division for 10:30am on Friday 10th July before Mr Justice Cohen.

Access was very straightforward.  I went on to the Open Justice Court of Protection Project website to look at the featured hearings and chose this one because it was video rather than phone hearing. I sent an email at 7.34 asking for access information and got an email back at 8.05 with a link to join the hearing via video. It was all much easier than I expected.  I got back to the clerk and asked “Do you need to know anything about me? Do you need me to read anything or sign anything?” The clerk was really responsive and got back to me straight away, informing me to “log on a few minutes before and it’ll be fine”.  I didn’t get a Transparency Order. That really surprised me.

When I logged on, I was kept waiting for about 5 minutes before the clerk came on and spoke to me and another observer. We were informed that the legal teams had asked for additional time before the hearing to try to resolve some of the issues before going through the court process.  I was asked to log back on at 11.15.  

When I logged back on at 11.15, the barristers for the two parties came on, and there was a social worker and a litigation friend. The clerk made sure that everyone was there but there were no formal introductions – I had to try and work out who was who from the clerk checking on attendance. Then, the clerk asked me to mute my microphone and turn my camera off so that the judge would only see the people who were actively participating in the hearing.   When the judge joined, almost immediately the barristers asked again for more time to find a resolution.  So they adjourned again until 2pm.  At this point, I still didn’t know what the case was about or what the issues were!

It was good to hear that the two parties were talking to each other and trying to come to a resolution, but it was a bit frustrating for me as an observer.

They came back at 2pm and the barristers communicated, “We feel as though we’re really close to making some concessions on both sides here. We feel as though we can resolve this. We need a bit more time.”  The judge became a bit forceful at that point, indicating that a resolution was needed and not to spill over into another day. The message from the judge was, “if you haven’t resolved your differences by 3pm the hearing will start”.  So, we all logged off again for an hour.

At this point, I still had very little idea what the hearing was about. I had no idea who P was, although I’d managed to glean that it was an issue relating to P’s accommodation.  P was moving to a new residence in August because the placement they were currently in had broken down.  It seemed as though there had been some kind of breakdown in communications or agreement between P and the placement and P’s family – so P’s family were requesting an interim order for P to move home until the new placement was ready for admission.  However, if the issues with the current placement and the family could be resolved, then there would be no need for P to move back into their family home temporarily.   I know when other people have done observations there’s been an introductory summary about the issues to be addressed.  This did not happen on this occasion.  If I hadn’t been determined to see this through, I think I’d have given up at this point. 

At 3pm I re-joined the video hearing.  Barristers communicated they’d resolved three or four of the issues. They were starting to draft an Order at that point. But they said there were still one or two issues they were looking to come to an agreement on.  They again asked for more time and the judge at this point set a deadline saying, “you’ve got until 4pm”.  Both legal teams communicated, “we’re really confident we can come to a resolution by then”. So 4pm it was, and off we went again!

At 4pm we all joined up again and essentially what had happened in between 3pm and 4pm was that the draft Order had been emailed to the clerk and the judge, and at 4pm they reviewed the draft Order.  It wasn’t read out so I don’t know what it said. The judge wanted to make a couple of amendments to the Order, which both parties agreed with, and the judge asked for the final Order to be sent to him as soon as possible along with the schedules and the barristers agreed between them who was going to do that.  So, the outcome as far as I could gather was that P would remain in their current residence, with some agreements and guidance around contact with the family, until moving to the new permanent residence in August. The judge said that it could come back to court if there was some really serious unresolvable conflict between P, the family and the care provider between now and August.  P was due to move in either the first or second week of August, so I think the consensus with all parties involved in the hearing was, “what’s the point of causing all this upheaval moving P from the current placement, to their home, and then to the new placement in such a short period of time if we can find a resolution to the presenting issues?”

And that was it!  There was a request for another hearing towards the end of the year, maybe a couple of months after P’s move to the new residence. Both barristers viewed this as a backstop – and communicated that once someone is moved to new accommodation it’s just good practice.  That’s also what’s happening with one of my clients, who has now moved to his new residence and there’s another hearing in a couple of months, which I assume now, from my learning in this case, is the standard ‘backstop’ as they called it.  The judge was very clear though that the backstop should only be triggered if there were issues.  He was adamant that he didn’t want the court’s time taken up with this unnecessarily if the new placement was successful for P. 

It seemed like a good resolution to a difficult situation, but it did make me reflect as to why issues get to a point where it takes around five hours on a Friday for two barristers, and their instructing solicitors, and a senior judge to thrash out an agreement.  I did find myself wondering if this couldn’t have been done earlier without ending up in court.  I wonder sometimes if it’s the thought of going to court that gets people talking to each other?  

As a case manager I’m used to being in situations where clients, families of P and professionals disagree, but if people have a willingness to do so, issues can be resolved.  We’re always trying to explain and justify our recommendations – whether it’s purchasing equipment or supporting decisions about where to live.  But whether other people agree with it or not is up to them, and sometimes you have to make concessions. But it is do-able.  What I saw in this case was legal teams, health and social care professionals and P’s litigation friend finding a resolution in P’s best interests, on the day of the hearing, pushing back the hearing to try to get agreement. I have so little detail about the case and finer detail as to what the disputed issues were, but it would be interesting to know what discussions took place prior to the day of the hearing, and whether these issues couldn’t have been sorted earlier in the week instead of involving a judge like this. 

The experience definitely gave me a real feeling of confidence that in the Court of Protection, whatever the two parties disagree about that results in a court hearing, there is the sense that both sides want the best for P.

I’m glad that I took the time to do this observation, even if I didn’t observe as much of the court’s process as I had expected.  I think I’m more aware now of what to expect if I ever had to be in the court myself. It was time well spent.

David Haxon is a Senior Case Manager at Social Return and committee member for the North East branch of the Court of Protection Practitioners Association (CoPPA).