By Celia Kitzinger, 6th May 2022
I had no idea what this hearing would be about. I picked it at random because I had an hour free at 10am on the morning of Friday 22nd April, and thought I could profitably use it to perform my civic duty of supporting open justice in the Court of Protection.
Here’s how the hearing was listed on CourtServe.
IN THE COURT OF PROTECTION WALES
YN Y LLYS GWARCHOD CYMRU
REGIONAL LEAD JUDGE HHJ CROWLEY
Y BARNWR ARWEINIOL RHANBARTHOL HHJ CROWLEY
Sitting at Swansea Civil Justice Centre
Yn eistedd yn Canolfan Llysoedd Sifil Abertawe
Friday, 22 April 2022
Dydd Gwener 22 Ebrill 2022
Before District Judge Taylor
Gerbron Barnwr Rhanbarth Taylor
|Amser Cychwyn/ Start Time||Manylion yr Achos / Case Details|
|10:00AM||Case number 13738017 Re P to be heard via CVP – T/E 1 hour Rhif yr achos 13738017 Ynghylch -CR gwrandawiad trwy CVP – Hyd 1 awr|
When there was no response (by 9.40am) to my emailed application to observe the hearing (sent as requested in CourtServe to CardiffCOP@Justice.gov.uk, which is the email address of the Wales Court of Protection Regional Hub), I phoned to ask for the link to be expedited, and was told “you’ve come through to Cardiff”. I explained I knew that, and that I was following the normal procedure for requesting access to a Court of Protection hearing in Wales. The man who’d answered the phone said he’d transfer me to someone – it rang and rang, nobody picked up, and eventually it clicked back through to him again. He tried a different number, and this time a woman answered who said she’d phone Swansea and let them know, and that she had already forwarded my email to Swansea (as had I, while waiting on the phone). I finally received the Cloud Video Platform link at 10.03am.
When I joined the hearing, I found it had not yet started. The judge appeared a few minutes later and apologised to counsel for the late start, saying that she’d received a request to observe the hearing that had come via Cardiff and had to be referred on, and that this had caused a delay.
I was very pleased that the judge took open justice seriously enough to wait a few minutes to enable a member of the public to observe – but troubled that there didn’t seem to be a shared understanding about how members of the public are supposed to access hearings.
Descriptors of issues before the court
As is commonly the case for hearings in Wales, the CourtServe entry for this hearing doesn’t include any description of the issues that will be before the court. Compare it (for example) with this entry from the Midlands Region, which lists the issues as “P’s capacity regarding her ability to make decisions relation to care, residence and contact” and “Best interests regarding residence and contact, and consideration of whether expert evidence is required”.
My understanding is that listings are supposed to convey this sort of information in the interests of transparency, so that members of the public have a fair idea of the sort of issues that will be before the judge, and can make an informed choice about which of the twenty-plus Court of Protection hearings that take place every day they wish to attend.
Some Regional Hubs (in particular the North-East-North Regional Hub, based in Newcastle) are very good at doing this – to the extent that I’ve created a hashtag #BeMoreLikeNewcastle.
I understand from having attended a number of Court of Protection User Group meetings around the country that other Regional Hubs are working on hard on this: I’ve noticed improvements in listings for the North-East-East Regional Hub (based in Leeds) – though I’ve yet to see any descriptors of issues before the court for Hull County Court (which is part of this Regional Hub). And (as the listing above shows), the Midlands Regional Hub (based in Birmingham) is also making good progress towards transparency with listings.
I look forward to improvements in Wales.
There was no opening summary to this case.
Counsel for the applicant, Rebecca Harrington (representing P via her litigation friend) simply launched into the case by saying: “A further s.49 report on capacity is required for contact with others and for engaging in sex. It’s increasingly important because P has formed a relationship and is also accessing the community independently at times….”.
It was disappointing not to have an opening summary. I did not know at the time – and I do not know now – anything about P’s age, her wishes and feelings in relation to any of the issues before the court, or the history of the case. I know only that she has a learning disability (apparently newly diagnosed).
I assumed, at the time, that there might be a problem with getting through the hearing in a timely manner and that t the delay in sending me the link (and the judge’s willingness to wait until I had joined) meant there was now some time pressure on the proceedings. In fact, however, the whole hearing (for which an hour had been allocated) was over in 11 minutes – so there would have been plenty of time to provide a case summary.
And, of course, the issues before the court could (and should) properly have been listed in CourtServe (e.g. modelled on the Midlands entry, something like “P’s capacity regarding her ability to make decisions in relation to contact and to engage in sexual relations”), and the opening summary should expand on that entry, with enough information about P and the history of the case to enable an observer to follow the proceedings.
Capacity to engage in sexual relations
Case law on capacity to engage in sexual relations has developed significantly over the last year, in particular via the judgment of the Supreme Court in A Local Authority v JB  UKSC 52.
There’s been a lot of public interest in this case, and we’ve blogged about it several times as part of the Open Justice Court of Protection Project (e.g. “Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB”; Capacity (and sexual relations) in the Supreme Court: Reflections on A Local Authority v JB; Capacity to Engage in Sexual Relations: A forthcoming Supreme Court hearing).
The Supreme Court affirmed that capacity for sex includes the requirement that P must understand not only that s/he can consent to or refuse sex, but also that a potential sexual partner must likewise be able to consent, and must actually consent, before and during the course of sexual activity.
Members of the public – especially those working with people who may lack capacity to make their own decisions – are often interested to observe hearings related to their professional concerns. There is no doubt that the application of case law in relation to capacity to engage in sexual relations is one such concern. Listing the fact that this issue was before the court would have provided an incentive for observers to attend the court, and thus support the judicial commitment to open justice. As it was, I was the only observer, and I had attended serendipitously.
I learnt later, from the position statement on behalf of the local authority (represented by Dafydd Paxton) something of the detail of this case. It seems that P had “developed a significant attachment to a male resident, D, who also has additional needs” and that she “has expressed a desire to have sexual intercourse with him”. Staff had assisted the couple to spend time with each other, including supporting them to go out on a date to a bar: P was helped to prepare her hair and makeup and pick a dress. This was an event that seems to have meant a lot to P and she’s been keen to show professionals photographs of the evening.
The local authority, in consultation with placement staff, has formed the view that P has the capacity to engage in sexual activity with D and an action plan to support them to have a romantic relationship, whilst also providing suitable safeguards, has been formulated.
Up until shortly before the hearing, the local authority had taken the position that there was sufficient evidence before the court to make a final decision on P’s capacity for contact and sexual relations with no need for further assessments or reports. There were already reports from the allocated social worker, a consultant psychiatrist and a clinical psychologist.
However, counsel for P via her litigation friend took the position that an updating assessment of P’s capacity to engage in sexual activity was necessary, given the Supreme Court judgment. (I assume that the original capacity assessment for P must have preceded it.)
As it turned out, by the beginning of the hearing the local authority was now content for further capacity evidence to be obtained.
“Apologies that our position changed after submitting the Position Statement. We recognise that’s not ideal, but our client department reflected on the helpful Position Statement from the applicant and has taken further legal advice, which is the reason for the change of position. We agree that it’s necessary to have another s.49 report. Our principal concern was the delay, but we accept that without it there might be a gap in the evidence at the final hearing”. (Dafydd Paxton, counsel for the local authority)
The judge asked, “Does the case need reallocation to a Tier 3 judge, given the capacity for sex issue?”.
Neither counsel thought this necessary. “The issues are not especially complex,” said counsel for the local authority, adding: “We also understand that P’s relationship with D has cooled, so it’s not such a pressing matter – although of course, given her access to the community, there is the possibility of other relationships”. He also emphasised that “judicial continuity is worth its weight in gold”.
District Judge Taylor ended the hearing by saying she was pleased that P has “settled with the change in accommodation” (I believe this case started as a s.21A application because P had been expressing a desire to leave the placement.). She agreed with counsel that there was a need for a s.49 report (re capacity for contact with others and engaging in sex).
The next hearing is listed for 10am for 2nd September 2022.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
POSTSCRIPT (16th May 2022)
On 11th May 2022 (5 days after posting this blog), I received the Transparency Order and a Position Statement from Counsel for P.
The Transparency Order is in the usual terms and nothing in my blog post had breached it.
The Position Statement provides a little more information which sheds light on why the matter of P’s capacity for sexual relations is before the court. There had been a report from Dr L (dated 13th August 2021, with an addendum of 7th October 2021) which concluded that P “does not have capacity to engage in sexual relations“. More recently, the social worker (in a statement dated 21st March 2022) had set out her view that P does have capacity for sexual relations (but she makes this claim without having carried out a formal assessment of P’s capacity). There is, therefore, conflicting evidence before the court in relation to P’s capacity to engage in sexual relations.
Dr L had also reported that P has capacity in relation to contact with others, but the local authority has imposed restrictions on contact between P and D, and restrictions on the timing and location of sex between them. It wasn’t clear what the lawful basis for such restrictions could possibly be if, in fact, P has capacity for contact and capacity to engage in sexual relations.
On behalf of P, the applicant was seeking an order for a further s.49 report specifically to consider P’s capacity in relation to contact and engaging in sexual relations.
 I requested the applicant’s position statement but have not received it. I have also not received a Transparency Order in relation to this hearing and am working on the assumption that the ‘standard’ wording applies.