By Celia Kitzinger – 3rd August, 2020
Something exceptional happened in a hearing I observed last week.
A judge – it was Mr Justice Cobb – delivered an oral judgment directly to the young woman at the centre of the case, addressing her by name.
This was the 53rd hearing I have observed in the Court of Protection since 1 May 2020. The person at the centre of the case, “P”, has been present in (virtual) court in about a fifth of these hearings – sometimes for part of it, sometimes for all of it. She or he has often had the opportunity to address the judge and to influence the proceedings. Judges often ask P questions, respond empathetically, and create an opportunity for them to express their views, even when they have a legal representative to do this for them. This kind of involvement of “P” is part of the ordinary business of the Court of Protection.
What is unusual – this is the first time I’ve heard it – is for the judgment itself to be addressed to the person it most concerns.
The oral judgment is the formal bit at the end of the hearing where the judge says what he or she has decided in relation to the issues raised in the hearing. Until I heard Mr Justice Cobb do it differently, I hadn’t really noticed that, in every other case I have observed, the judgment has been addressed to the barristers.
So, in one recent judgement, for example, the person the hearing was about was present throughout, and we could all see him on the video-platform. At the end of the hearing the judge said in her oral judgment:
“I am satisfied that I can make an interim declaration that P doesn’t have capacity to decide where to live or the conditions under which he lives. But P needs to know more about the placement that’s proposed and the placement needs to know more about him, and in particular how to manage him if he has another period of difficult behaviour.”
If it wasn’t routinely done this way in the courtroom, it would surely be odd to talk about P in his presence, and not to P. But this is the way it is usually done. In all previous oral judgments I’ve heard, P has been referred to as ‘he’ or ‘she’ – talked about, in the third person – even when he or she is sitting right there watching and listening.
However well-intentioned and fair the judgment, and however tactfully it is phrased, it can feel somewhat unsettling, almost “rude”, for a judge to announce to the lawyers what she has decided should happen to P by speaking about P, in P’s presence.
Contrast that with what I heard last week from Mr Justice Cobb:
“I realise, Jennifer, that you are unhappy at [Placement]. I am satisfied that the local authority is looking carefully, conscientiously and creatively for somewhere else for you to live – and to live with Rover [Jennifer’s dog]. I understand this may make the world of difference to you, to live with Rover. Your lawyer has suggested a number of options for where you might live and all of these will be looked at. I’m also pleased that there’s been some agreement reached about your use of the internet and your mobile phone. I know you’re not entirely happy with it but, Jennifer, this new arrangement will help to protect you. […] I’m going to ask [Lawyer 1] and [Lawyer 2] to pull together an order to that effect.”
In this judgment, from Mr Justice Cobb, it is the lawyers who are spoken about and P (Jennifer – a pseudonym, obviously!) who is being addressed. It’s a change from P being “him” (or “her”) to P being “you”.
This feels appropriate – it is, after all, Jennifer who is the person most directly affected by the judge’s decisions. And Mr Justice Cobb took care to acknowledge that he understood Jennifer’s feelings (“I realise you are currently unhappy at [Placement]”) and was concerned to get it right for her (e.g. by enabling her to be with her dog).
Listening to this judgment at the end of an otherwise unremarkable hearing took me unawares and made me realise how uncomfortable I’ve felt with a lot of the oral judgments I’ve witnessed over the last couple of months, where P (however fully involved in the hearing at an earlier point) has become the “object” of a judgment addressed to lawyers. P is being talked about instead of directly addressed on a matter that concerns them more than anyone!
Most judgments in the Court of Protection are never published. I know there has been some recognition in the Family Court of the benefit of addressing published judgments to the people most affected by them.
The judgment in Re A (Letter to a Young Person)  EWFC 48 is (apart from four introductory paragraphs) a letter sent by Mr Justice Peter Jackson to a 14-year-old boy, who wanted to move to Scandinavia with his father but was refused permission by the judge. Mr Justice Peter Jackson wrote: “This case is about you and your future, so I am writing this letter as a way of giving my decision to you and your parents.” It’s important not simply for involving a young person in the proceedings, but also because he has the opportunity to understand the reasoning behind the Court’s decision. (See also the letter, incorporated into the judgement, sent to the children in a Scottish case here).
Of course, in addressing a young person in this way, judges have to use more straightforward language. Some judges have shown this can be done. The previous year, Mr Justice Peter Jackson had written a “plain English” judgment in the hope that the mother and older children could follow it (Lancashire County Council v M and Others  EWFC 9). In 2018, Deputy District Judge Reed (Lucy Reed one of the founders of The Transparency Project) published a judgment in which she had decided to place a child for adoption, contrary to the wishes of his Mum (M) and Dad (D). D had a learning disability and found reading difficult. The judge says:
“I’ve tried to explain my decision using simple words … D (and M) might want to read it later, maybe with his lawyer. M helps D with reading so they might want to read it together in the future.”
Writing judgments like this also means that it is more accessible to lots of other people who are not familiar with the language of the law. I recommend taking a look at these published court judgments: they clearly promote the transparency of judicial decisions. Why not have “plain English” or “easy read” versions of published judgments that give P (and all of us who might become future Ps) the opportunity to understand how decisions are taken by the Court and the reasoning on which they are based?
The principle of making published, but also especially oral, judgments accessible to those whose lives they affect, and – in particular – addressing them directly when they are in court, could be applied more widely in the Court of Protection.
It’s common for judges to say that P is the person at the centre of the case. P is often given the opportunity to address the judge – sometimes as part of the court hearing, sometimes before or after it – about their own views and what outcome they want from the hearing. But communication is two-way – not just from P to the judge, but also from the judge to P.
When a judge hands down an oral judgment, it would be refreshing to hear it addressed to P – as Mr Justice Cobb did when he explained to Jennifer what he’d decided and why. It’s courteous. It involves speaking directly to P instead of talking about her in her presence to other people (a horribly familiar experience for many disabled people of course). It recognises P’s presence and treats her as a participant in the interaction.
I hope that, when P is in court, more judges in the Court of Protection will consider addressing their oral judgment to the person it most concerns
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia