Accessing a Court of Protection hearing as an observer: My experience

By Anna (daughter of a P), 2^nd August 2022

As a layperson completely new to observation in the Court of Protection (COP), I thought it would be useful to document my experience of what it is like to ask to observe a hearing. 

In this blog, I describe the process of gaining access to one hearing and I hope it will reassure people like me that it can be relatively easy once you know what to do. 

Background

I am contributing to the Open Justice Court of Protection (OJCOP) Project because I am involved in a COP case myself, as a family member. 

My mother, who has Alzheimer’s, was admitted to full time care under an emergency deprivation of liberty authorization in August 2021. She had nominated my sister as her Lasting Power of Attorney for Health and Welfare  – and both she, and the whole family, all agree that it is in my mother’s best interests to be in the care home. However, my mother is making a section 21A appeal via her litigation friend, the Official Solicitor, as she wants to return home, and so she is now involved in a hearing as P in the Court of Protection. 

Not knowing anything about how the Court of Protection works, I contacted the OJCOP Project back in April 2022 and have since learned a lot more through reading the blog postings, observing a s.21A hearing (and writing about it here: “A section 21A hearing”). I’ve since participated in a first directions hearing for my mother, and am joined as a party.  I want to observe further hearings so that I can carry on educating myself about how the Court of Protection works, as well as helping others who may find themselves in my situation. 

Asking to observe: my experience 

I am particularly interested in Section 21a Deprivation of Liberty cases, as that is the type of case I am involved in. I follow Open Justice on Twitter (@OpenJusticeCoP) and I saw that there was such a case listed on 25^th July 2022. The tweet,  reproducing the listing for First Avenue House in London, read like this:  

Monday 25th July 2022

DJ Eldergill 

First Avenue House (remote) 

2pm COP13832291 AJ -v- LB Waltham Forest (1 hour) 

Section 21a Deprivation of Liberty 

For access, email: courtofprotectionhearings@justice.gov.uk

(Tel 020 7421 8718)

As I happened to have some time free, I decided to ask to observe this hearing. 

I am very happy to blog about my observations, although still slightly daunted about doing so. I contacted Celia Kitzinger, who suggested that I email the barristers, once I knew who they were, to ask for their position statements, which would help my understanding of the background to the case.  I should be able to identify the barristers, she said, because they’d have their cameras on and their names would appear on screen at the start of the Teams meeting.  I could then google them to discover their email addresses.

I was a bit anxious about my ability to take notes during the hearing – recording is not allowed so I would have to rely on the speed of my writing. To prepare in advance, I drafted an email to send once I knew the names of the barristers and had located their email addresses.

At 10.37, I sent an email to request to observe the 2pm hearing. I was slightly concerned that this was very late. I got an automatic reply stating the following: 

This response has been automatically generated

We are experiencing high volumes of emails. We’re currently prioritising all URGENT emails, please note due to large volume of emails, you will not be getting acknowledgment to confirm receipt of your email.

I decided that I would also ring to make sure that my request didn’t just get lost in the system. I rang the number provided in the listing at 11.39, and the call was answered after about 30 seconds. I stated that I had sent an email asking to observe a case, and provided the case number. The Court representative told me that they had received the email, which had been forwarded to the judge. The judge would give directions as to whether “I would be allowed” to observe the hearing and I should hear shortly. 

At 11.51, so a very short time afterwards, I received an email from the judge himself, with the Court staff on copy, stating that it was fine for me to observe the hearing but that the hearing was unlikely to go ahead as the parties were working towards agreement. I also had an email at 11.59 from the Listing Team, also confirming that the hearing might be “vacated”, but in case it did go ahead they provided me with a link to the MS Teams meeting through which the hearing would be conducted. 

The subject heading in the email from the court was as follows: 

“FW: 13832291 AJ v London Borough of Waltham Forest, Directions, Section 21a Deprivation of Liberty, Remote, Private Hearing Not Open to Public t/e 2 hours”

I hadn’t thought to ask how I would learn whether the hearing would take place or not,  so I emailed the court at 13.30, 30 minutes before it was due to begin, to ask how I would know. I didn’t hear anything back, so I joined the MS Teams meeting via the link at 13.50. I saw the standard message “ When the meeting starts, we’ll let people know you’re waiting”. By 14.05, 5 minutes after the meeting was due to start, I was still waiting. I told myself I would wait another 10 minutes. I also emailed DJ Eldergill to say that I would apply to observe another of his hearings, as this one didn’t seem to be going ahead. 

Then, unexpectedly for me, the meeting (hearing) started. I will write separately about how it went.  

It lasted about 30 minutes. 

When the hearing finished, I looked at my emails. To my surprise, the judge had replied to my email about attending another of his hearings, telling me this hearing was still going ahead and even re-sending me the link. 

Despite having planned to do so, I found it really hard to find the time to contact the barristers during the meeting as I was busy trying to keep up with what was going on. Everybody had joined at the same time (because they’d been together in a pre-meeting) – maybe if people had joined in the 10 minutes before the meeting I would have been able to do this. 

In any case, I looked up the contact details of the barristers after the meeting finished.  They were  Carol Knotts (I found a general contact email at No 5 Barristers Chambers, but not her individual one)  and Amos Waldman (his individual email address is provided on the Doughty Street chambers website).  I asked for their respective position statements. Amos Waldman sent his, after having received permission from his instructing solicitor, within an hour. I haven’t yet received the one from Carol Knotts. I’ve heard that they aren’t always sent. 

It’s interesting what you discover when you google barristers.  I have listened to Amos Waldman talk movingly on Sky News about his grandmother’s death, and being unable to visit her or to have an in-person funeral service at the time when Boris Johnson was partying in Downing Street.  And I learnt that Carol Knotts made the dress featured in the iconic Athena Tennis Girl poster when she was a teenager, from a ‘Simplicity’ pattern.  She lent it to a friend for a photoshoot and the rest is history.

Despite the formalities of a court hearing, learning this reminds me that barristers are human too!

Some thoughts

Despite my initial misgivings, this experience shows that it can be relatively easy to ask to observe a hearing. The Open Justice Court of Protection Project provides a lot of information about cases (where available), including the email address and phone number and information about how to write a letter requesting access (check out their home page). This helps to make Court of Protection hearings accessible to many people. 

I was particularly impressed that I could ask to observe so close to the time of the  hearing. I wasn’t very optimistic about my email being seen so close to the time of the hearing. I don’t know whether it would have been except for my follow-up phone call which was responded to very quickly. 

I was very surprised, and impressed, that DJ Eldergill emailed me directly to let me know that he was granting me permission to observe the case. (I gather it’s very unusual for judges to do this.)  He even used my first name, which made the tone of the message very approachable. Also by his messages telling me that the hearing was going ahead and even forwarding the link. He made me feel very welcome and that it was not an imposition asking to observe. I had given no indication of my involvement with the OJCOP Project either.  I would have thought that a judge would want to keep their direct email address private to protect them from unwanted messages. The tone of the email definitely made me feel as though I was very welcome to observe his cases. 

I know from my own experience that having access to the Position Statements makes understanding cases much easier. I was therefore grateful to receive at least one relating to this case, which certainly helped me understand the case better. Also just to mention that Amos Waldman was very responsive and friendly in the tone he used in his email messages to me – again, I didn’t feel as if I was being an imposition. I do appreciate that sometimes it won’t be possible to access them and how busy the barristers must be!

It was slightly disconcerting when I was told that the judge would consider whether “I would be allowed” to observe the hearing. This is the case because the hearing was listed as “PRIVATE” ( ead more about that here: “Why are so many Court of Protection hearings labelled “PRIVATE”)

In the event I was allowed, and with no difficulties, and no questions asked as to why I wanted to attend the hearing. Some people may have been unintentionally put off by this phrasing. It was also interesting to note that the heading of the email sent to me by the court saying that I could attend the hearing stated “Private Hearing Not Open to Public”. This wording, plus the use of capital letters at the start of the words, could definitely be interpreted as meaning that members of the public, like myself, could not be observers.  It seems that the majority of the time permission is granted, so this wording is very misleading.  Also The email subject heading stated “t/e 2 hours”. I assume that the “t/e” was short hand for “time estimate” but I wonder why it was longer than the 1 hour as per the listing. Luckily, I would have been able to observe for 2 hours (although it only lasted 30 mins as it turned out). 

I am not a legal professional, although I’m becoming more familiar with some of the legal terms relevant to Court of Protection hearings. Sometimes I feel that legal terms can be used without thought for lay people such as myself. Terms used in exchanges between me and court staff during the process of asking for access included “consent order”, “vacate”, and “sit on”, for example. From my knowledge I can guess what they mean but I just raise the point that this could make things more difficult for some people to understand. That said, observing a hearing will undoubtedly mean having to listen and trying to understand “legal speak”. 

It was hard for me to understand whether the hearing was going to take place or not, but I’m not sure what could have been done, other than me just waiting. The judge must have been in the same position – not knowing whether the parties would come to agreement or not.

I hope that my experience will encourage other people to observe hearings, in the spirit of open justice. It was certainly a learning experience for me and I will definitely be observing more often. My experience  – at least of this one hearing – is that accessing a COP hearing is not that hard, once the process is navigated. 

Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application.  She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience.  She hopes to blog in future about the hearings as the case progresses through the court.