By Jamal L. Din, 27th July 2022
For some time now I’ve wanted to observe a hearing in the Court of Protection to gain experience of how the court hearing is run, and understand how the interests of the protected parties (and their families) are supported.
I am a Deputy for Property and Finance for my son and have made several COP applications that have been decided “on the papers”, i.e. without a hearing. It can only be a matter of time before, as a family, we are likely to be more involved as parties in a COP hearing.
I have previously tried to observe remote hearings in the COP with mixed success. Having read through the guides, set aside some time and meticulously prepared the email requests to the courts, I waited. The auto-email responses from each court came through so all looked positive but then nothing, no response and the court times passed me by.
The Open Justice Court of Protection Project made some enquiries on my behalf and discovered that one of the hearings was cancelled; at another, a member of staff sent my contact details to the wrong person asking them to provide the link; and another (the RCJ) had a technical issue that day which prevented them from responding (and I’d only sent to one of the two email addresses provided).
For another hearing I asked to observe, I received a response saying “Her Honour Judge Cronin has asked for more information, such as occupation, for yourself, and if you have any link to the case at all”. I replied saying that I had no link to the case, but I didn’t provide my occupation, simply explaining that I was “applying to observe the hearing as a member of the public, in line with the Court of Protection’s transparency project”. I didn’t receive an MS link and was not able to observe the hearing.
The hearing I was finally able to observe (COP 13913527 BR-v-LB Richmond & MR) on 22nd July 2022 was before DDJ Kaufman at First Avenue House and was listed as concerned with s.21A and Deprivation of Liberty. I located it from the Open Justice Court of Protection twitter feed.
I received the MS Teams link 40 minutes before the listed hearing time, and a copy of the Remote Hearing Order was attached to email. I was not sent a Transparency Order but the judge made it very clear to me (and the parties) that it was important to keep the identity of P (the protected party at the centre of this case) and his family confidential. The judge also asked all parties individually if there were any objections to an observer being present and then approved my presence as an observer.
At the beginning of the hearing the judge asked counsel for P (via his litigation friend the Official Solicitor) for a summary for my benefit as an observer – and for everyone’s benefit. Counsel only stated the current position and nothing about the history of the case. The judge picked up on that and confirmed this was a challenge under s.21A of the Mental Capacity Act [MCA] 2005. At this stage I was unaware of the nature of P’s impairment (more on this later) or what his objections were to the Deprivation of Liberty Order or with the current Care home.
Later I was able to work out that P was unhappy with where he lived and was challenging the DOL Standard Authorisation. He sought either an alternative home or care in the community with a bit more freedom. The local authority and current care home were respondents.
P’s daughter had previously stated that she didn’t want to be litigation friend (this had been established at an earlier hearing). However, she was on the video call. It was challenging for her as she had her 2-year-old daughter on her lap. The judge was very particular to ensure that she was included in the discussions and carefully tried to understand her views and thoughts. She was asked if she had visited the current care home or any of the alternatives. P’s daughter said she just wanted her dad to be happy.
P was also present on the call. His current care home had facilitated a room for him to participate (not on screen though). The judge specifically addressed P whilst acknowledging that P may be able to hear but not respond.
The Judge offered P a face-to-face meeting with the judge appointed to decide the case at either at the care home, the court’s offices or at the offices of counsel for the Official Solicitor. Alternatively, she offered him the opportunity to have a discussion on the telephone, whatever works best.
P did not speak to the court. I also don’t know how much of the hearing P understood or knew what was going on.
Counsel for the local authority was adamant that their position was unlikely to change, irrespective of any further care home assessments. In their view, the current care home is in P’s ’s best interests as P needs 24-hour care.
The judge summarised the order she was going to make, and the next steps, to P’s daughter to ensure she understood it and was happy with it. The judge ordered:
- An assessment of the possible alternative care home in question.
- Final witness statements from all parties.
- Extension of the current Standard Authorisation to expire at midnight on the day of the final hearing.
- A final attended hearing in mid-August with a time estimate of one hour and hearing to be on a submission basis.
I was pleased that the judge made a great effort to involve P and his daughter in the hearing. I hope this is followed through at the final hearing where it appears that the options are limited for P’s care.
In terms of transparency and open justice, my sense was that the court clerk, the judge and the office were very accommodating – the judge especially so in making sure all parties were aware of the observer and the legal responsibilities that attach.
There are some unanswered questions. What are P’s objections to the current care home or the DOL? To what extent will P be able communicate his concerns during his face-to-face meeting with the judge who will make the final decision? What are the LA’s reasons why 24-hour care cannot be provided in the community for P? I am sure all of these questions are answered in the ‘bundle’ of paperwork before the judge, but as an observer I was left in the dark.
The courts are complex and can be daunting. My previous dealings with the COP gave me an advantage, however I was still apprehensive. I didn’t want to attract attention to myself. I didn’t expect to be addressed directly by the judge at the beginning of the hearing. (She asked me to confirm that I understood and agreed to keep P’s identity confidential. In addition, I had to confirm there was no one with me on the call: she explained that these would be a contempt of court risk.)
Overall, my impression of this hearing was very positive, and I am encouraged by the emphasis placed on P and his family. Watching this hearing was really helpful for me as someone who may be involved in a Court of Protection hearing in future.
Jamal L. Din is a volunteer supporting people and charities, offering support and campaigning for the rights of people, a voice for people who cannot be heard. He is also a court-appointed Deputy.