By Paige Taylor, 8th June 2022
On 23rd May 2022 I watched a remote hearing (COP 13585739) before Mrs Justice Lieven.
I am currently a Bar course student at the Inns of Court College of Advocacy, and I wanted to observe a Court of Protection hearing because I have an interest in mental capacity and disability law, particularly best interest decisions and the role of Lasting Power of Attorneys (LPAs). This stems from my experience as a young carer and LPA for my late mother, who experienced mental capacity issues following several strokes and a diagnosis of early-onset Alzheimer’s.
This was my first attendance at a remote Court of Protection hearing as a public observer, so (although I’d observed remote hearings in other courts) I did not know what to expect. There were three other observers – including two mini-pupils.
The hearing was listed to start at 10.30am but the clerk informed everyone that the judge’s previous hearing had over-run and it wasn’t actually called on until 10.56am.
While we were waiting online, before the hearing began, I was asked by the court clerk to identify myself as a court observer, as she established the identity of everyone on the video-platform.
Once I had done this, Katharine Elliot, counsel for the applicant local authority was asked by the court clerk whether a Transparency Order (TO) had been put in place for the hearing, and she said that it had. But it was discovered shortly before the hearing began, that in fact there was no TO.
Pending the production of a formal written TO, Lieven J orally outlined the reporting restrictions, requesting that counsel for the applicant distribute copies to the observers as soon as possible. It has been 2 weeks, and I have still not received one!
The hearing was very short (17 minutes) and resulted in final directions and orders, bringing to an end a series of previous hearings in this case. As such it probably wasn’t the best (or easiest) hearing for me to observe, because there was a lot of background information from the previous hearings that I was not aware of at the time I was observing.
What was the hearing about?
It concerned the approval of final orders for P (the protected party, the person at the centre of the case) in relation to her residence, care and support.
This was the final hearing in a case which was first brought by the applicant local authority, Kent County Council, in March 2020. The case has been overseen by Mrs Justice Lieven for just over 2 years.
Hearings in this particular case were previously held in private. This was until a judgment was made in November 2021, allowing the public to attend the hearing, and for public and the press to report on it, subject to a Transparency Order maintaining the protected party’s anonymity. You can read the previous judgment here.
Shortly after the discussion of a Transparency Order, counsel for the applicant introduced the other parties and then provided a brief background to the facts of the case, which are summarised below.
The parties were: the applicant local authority (represented by Katharine Elliot); P, represented via the Official Solicitor by Keri Tayler); and the NHS Clinical Commissioning Group (CCG), who co-fund the placement and care package with the local authority – but it had been previously agreed that they didn’t need to attend this hearing unless they disagreed with the local authority (which they didn’t).
There was also a legal representative from the police force present (Isabella Crowdy), although the police force was not formally a party. She was there because there are possible criminal proceedings against P’s parents.
Facts of the case
The protected party, P, is a woman in her early twenties currently in the care of the local authority, and living in 24/7 supported living. She was removed by the police from her parents having suffered severe neglect and malnutrition. As a result of her traumatic experiences, she has suffered both physically and mentally, and the multi-disciplinary team treating her is approaching her care based on working theories around attachment disorder, developmental delay, dissociation, anxiety, autism spectrum disorder and complex post-traumatic stress.
According to the previous published judgment, Kent County Council brought the substantive application back in March 2020, seeking declarations that it is in P’s best interests to continue to live and receive care and support at her current placement and for the necessary deprivation of liberty (DOLs) authorisation.
In the course of proceedings, P has been found by the court to lack capacity in relation to care and residence, property and affairs and decisions about contact with her parents. P currently does not have contact with her parents (but this is subject to ongoing review).
After Katharine Elliot’s summary, the judge said that it seemed that the parties had reached the point where final orders could be made concerning P’s residence, care and support (including a DOLs order) and contact with others, “because effectively P’s care has stabilized and nothing is going to significantly change in future”.
1. Counsel for the applicant
Counsel for the applicant agreed that final orders could now be made, noting that P’s presentation has improved and she has made “sustained improvements” in some areas, but “some difficulties” remain in others.
Lieven J asked the applicant about the ongoing criminal investigation concerning P’s parents: ‘if [the] police did want to re-interview P or call her as a witness, who makes the decision on her behalf under the Mental Capacity Act?’. Counsel for the applicant replied that there would need to be a mental capacity assessment of P, but that P would unlikely have capacity to give evidence or act as a witness in a criminal case. The judge accepted that, saying she simply wished to “guard against all eventualities”.
2. Counsel for P
Keri Tayler, counsel for P (via the Official Solicitor) also agreed that final orders could be made.
Also, she asked whether the judge would be willing to write a letter for P (who wasn’t in court) “addressing her about these proceedings”. This was so “there’s recognition for her that her case has been considered by the Court of Protection and that care has been taken over her circumstances”. The judge was “more than happy to do that”.
3. The legal representative from the police
Turning to the legal representative for the police force, the judge said (rather pointedly) “I feel almost exhausted by the issue of the charging decision When we first met, you were saying February this year, then May, and you’re now saying perhaps June”. Ms Crowdy corrected the judge: it would now likely be August.
This exchange relates to the judge’s remarks in her judgment of November 2021 about how long it was taking the police to decide whether or not to bring criminal charges against P’s parents. Kent Police have been investigating this matter since August 2019 and the judge raised concerns about how long the process was taking at a hearing in October 2021, and again in her judgment on 4th February 2022. She said:
[at 4] At that hearing I expressed my considerable concern about the length of time that it was taking the police and the Crown Prosecution Service (‘CPS’) to carry out an investigation of the matter and reach a charging decision. It was over 2 years since P had been found and yet there was no charging decision, and the police at that hearing informed me that they were hoping to make a charging decision in early 2022.
Having established that the police were not seeking anything more from the court, and that the parties were in agreement about the order, Lieven J ended the hearing, saying that it “brings this part of a very long saga to an end” and extending her thanks to P’s social worker (who was also in the hearing) “for her exceptionally hard work and commitment to P”.
The hearing ended at 11.13am.
There are four points I want to make about this hearing. They concern: (1) my experience of gaining access to join the remote hearing; (2) P’s participation in proceedings; (3) my learning about the role of an Accredited Legal Representative (ALR); and finally (4) reflections on open justice and transparency in relation to this case.
1. Joining a remote hearing
The process of requesting to join this hearing as a court observer was incredibly straightforward. I emailed the court staff with my request to observe and provided them with my email and phone number. I received a reply from the listings officer 2 minutes later that my request had been forwarded to the relevant court staff, and I soon received a link to join the hearing on Microsoft Teams. What was particularly positive was that a second member of the court staff emailed me again to ensure that I had received the link for the hearing.
Having sat in on remote hearings previously during the peak of the coronavirus pandemic, I see the benefits of remote hearings to open justice, such as providing accessibility to those who are unable to travel to court to participate in or to observe hearings. Despite this hearing not being held in person, the formality of it was upheld through the implementation of the transparency order, and the warning of committing a contempt of court if such an order was not adhered to. However, I do believe that the real solemnity of court proceedings can only properly be felt in person.
2. P’s participation
I’m interested in the extent to which protected parties are able to participate in hearings about them, and there has been recent guidance about judicial visits from the Vice President of the Court of Protection (here).
Building upon the guidance provided by Charles J, Hayden J in his guidance stated that a judge meeting with P can achieve a number of important (but not exhaustive) objectives, such as their participation in ‘best interests’ decisions as required by s.4(4) Mental Capacity Act 2005. Hayden J supplements the previous guidance by his predecessor by outlining the benefits to P of remote visits and remote hearings in incorporating P into the court process. He notes:
[at 3] “Judges have made remote visits to Care Homes, Intensive Care Units, private homes, and a variety of other venues where it has been possible to meet with P. Additionally, P has frequently been able to attend remote hearings where attendance in a court room would not have been possible.”
In this case, P’s direct involvement in this hearing was limited, as she was not in court. Also, the judge reported that she had not met with P: it had been considered (by P’s legal representative) “inappropriate” for her to do so. However, a concerted effort was made in order to inform P about her case by P’s counsel requesting Lieven J to write a letter directly to P.
Although the judge visiting P would have been more personal, any method of communication with P is instrumental in upholding the right of P to know what is happening in her case, despite her not having litigation capacity.
3. What is an ALR?
Something I learnt from the hearing was the purpose and function of an Accredited Legal Representative (ALR) which was made known to me when Lieven J asked Keri Tayler, (counsel for P) about whether, following this case, the Official Solicitor would step down and P’s solicitor act as “deputy” for P. Counsel for P responded that P’s solicitor will step in not as deputy but as an ALR.
From my research and understanding, an ALR is provided under the CoP rules to assist a person who lacks mental capacity to respond to applications before the CoP. The role of an ALR is defined by Rule 1.2(2)(b) of the CoP Rules 2017 as being “to represent P in the proceedings and to discharge such other functions as the court may direct”.
Such ALRs, as the name suggests, have been accredited via the Law Society’s Mental Capacity (Welfare) accreditation scheme. An ALR can be appointed by the court of its own initiative or can be applied for by any person. The role of an ALR is similar that of a litigation friend/Official Solicitor and they are used to assist the court to narrow the issues of a case for the court’s determination. (There is more information about ALRs here.)
4. Transparency and open justice
Lieven J in her 2021 judgment made the decision to open this case to public scrutiny (in line with normal COP practice), despite the objections of the three legal representatives involved in the case.
The local authority argued that if hearings in this case were to be made public it would ‘”risk that P would be able to be identified relatively easily because of the almost unique nature of the case and the initial press coverage relating to it’ (§15 of the judgment).
The Official Solicitor, on behalf of P took the same position, referring to “the deeply personal nature of the information before the Court of Protection and the likelihood that the case might attract media attention because it is at the ‘more prurient end of the scale’” (§17 of the judgment).
The representative for Kent police also argued that the hearing should be kept private and the press should not be allowed to make any public report upon it. Public reporting, said Kent police, “would interfere with the ‘integrity’ of any future trial” (§18 of the judgment), e.g. by prejudicing potential future jurors.
Lieven J in her analysis, outlined the important public interest in holding court hearings in public and allowing the press to report on them. “The presumption”, she said, “should always be for open hearings unless there is a strong countervailing factor”. In this case, there was a balancing act between protecting P’s privacy and Article 8 rights on the one hand, and “a potential impact on any future criminal trial” on the other. Lieven J concluded in this case that the balance came down in favour of allowing attendance, subject to an appropriate reporting restriction order.
This was to ensure Article 10 rights and the public’s legitimate interest in knowing what has happened in this case – in particular, how ‘it had been over 2 years since P was found and yet there was no charging decision’.
One of the reasons why Lieven J decided to make these hearings public (after initially acceding to counsels’ requests that they should be held in private) was because of the delay in the criminal justice system relating to P’s parents.
[at 29] ‘There is a strong public interest in knowing how the criminal justice system, including the police and the CPS are operating. That is even more the case at the present time when it is known that there are very long delays in getting cases to trial, or even to reach charging decisions’.
[at 30] ‘I do think that the public has the right to know that in a case such as this it will have taken over 2 and a half years to even get to a charging decision. If there are charges brought, it is unknown how much longer it will take to get to trial. Delays in the system of justice, whether the police or the CPS, are a matter of legitimate public interest’.
To have hearings such as these made public is instrumental to open justice and to ensuring that the public is educated on the current state of the civil and criminal justice system. It also enables an accountability mechanism as to how the courts, CPS and the police are operating and how they ought to operate.
I believe that Lieven J was prudent in her 2021 judgment, as when weighing up the risk to P if hearings were made public, she re-assessed P’s circumstances and concluded that although previously she had believed that:
P was likely to become much more engaged with the outside world and was at real risk of hearing and understanding any public comment which might have a negative impact upon her’, what had in fact happened was that ‘as time has gone by, the evidence suggests that that risk is not so great. In practice, P has engaged very little if at all with the outside world, never goes outside her accommodation and does not listen to the news or read any commentary’.
Lieven J’s analysis gave thorough consideration to P’s current circumstances and the public interest in this case. She justified her decision that with the lower risk of P being exposed to potential press reports, ‘There is a legitimate public interest in the fact that deeply distressing cases, such as that of P, happen in the UK and how they are dealt with by the relevant authorities”.
I completely agree with Lieven J’s reasoning, as authorities (including local authorities in particular), should be subject to scrutiny in their response to child neglect.
The judgment itself was reported by the media (without the “prurience” anticipated by the Official Solicitor) here: “Judge concerned over how long it has taken police to investigate ‘extreme neglect’ of teenager”. From the media account, it’s also apparent that a Press Association reporter had been present at an earlier hearing and argued that the public had a right to know about the judge’s concerns and that a report would not compromise any future trial. That seems to have been an important intervention for open justice.
Overall, this was a thought-provoking first introduction to Court of Protection hearings, and I look forward to observing some more in the future – hopefully at an earlier stage in the proceedings.