By Celia Kitzinger, 7th December 2022
It was listed as an in-person hearing (COP 13641809) at First Avenue House in London on 28th November 2022.
I was in London for a conference and had the afternoon free, so I thought I would take advantage of the (for me, rare) opportunity to observe an in-person hearing.
On arrival at First Avenue House (after putting my backpack through the X-ray scanner, phone and lap top out, emptying my pockets and taking a sip from my water bottle), I took the lift up to the 5th floor where the Court of Protection sits.
Court staff greeted me and said the hearing had been “rejigged as a Teams meeting”. I asked how this would work: should I go away again and find somewhere quiet to sit and watch it via the Teams link? No. I would be shown into the courtroom, where Her Honour Judge Hilder would be sitting, and watch her interacting with the lawyers, who would all be attending online, visible on a big screen.
And that’s what happened.
There was a bit of a delay starting, which I think was occasioned by the need to produce a Transparency Order.
It later transpired that the hearing had originally been expected to be “private” (in which case it had been incorrectly listed).
“We are sitting in private”, said Nicola Kohn, counsel for the local authority. (I wasn’t sure, during the hearing, who was counsel for which party because, although the judge did a generally very helpful opening summary, it didn’t include which barrister was acting for which party. I’ve subsequently received a copy of Nicola Kohn’s position statement – thank you! – which is enormously helpful.)
“Since Professor Kitzinger has taken the trouble to come to court,” said HHJ Hilder, “I made a Transparency Order and we are sitting in public”. And, “just to clarify,” added the judge (turning to address me) “you would have been welcome to attend if it had been a private hearing”.
It was a slightly surreal experience to be the only person in an otherwise almost empty courtroom, seated opposite the judge and a member of the court staff (an usher? a clerk?).
Normally, observers sit at the back of the court, and even though I knew there wouldn’t be any lawyers in the courtroom today, I somehow couldn’t bring myself to sit on the front benches, in the seats they would normally occupy. Sitting several rows back was a mistake though – I couldn’t see the screen very well, or read the names of the lawyers on screen. Ironically, I’d have had better access to the hearing if I’d attended remotely like everyone else. With hindsight, I should have asked for the link and could have had it open on my laptop on silent: I’ve done that before – and since! – in hybrid hearings when I’ve been attending in person, and it massively improves the experience.
My engagement with the judge felt slightly awkward too. Although there was no instruction to “All rise!” as is usual in in-person hearings, I did what the lawyers do in courtrooms and stood up when she entered at the beginning of the hearing – and again at the end when she left. (This standing-up thing is not practised in remote hearings.)
I expect the experience of having me in court was slightly odd for the judge too!
The judge introduced the hearing by explaining that KD (the person at the centre of the case) is 18, autistic, and has severe learning disabilities. He does not communicate verbally. He has previously been found to lack capacity to make all relevant decisions. He lived with his parents until their relationship broke down, and then with his grandmother until being the subject of a care order. He’s been living in a registered children’s home – but he’s no longer a child and the focus of the proceedings has been to identify a suitable adult placement for him.
The last hearing was on 20th October 2022 at which concerns were expressed about the lack of progress and non-compliance with orders.
The judge had ordered that the next hearing should be listed as “in person”, meaning the legal team from the Bolton area would need to travel to London for the hearing, “unless the parties could agree that progress had been made and non-compliance issues sorted so as to make attendance in person not necessary”. And that, said the judge “was only confirmed this morning”.
Nicola Kohn said there had been “a good deal of cooperation between the applicant and those instructed on [KD’s] behalf”, including a Round Table Meeting “as a result of which the Official Solicitor was satisfied that issues of non-compliance were resolved” – and a subsequent meeting had led to an agreed draft order that was now before the court.
The judge said she was “fundamentally concerned with the lack of progress in finding KD an adult placement”, since it looked as though nothing would be available until he turned 20.
That was still the case, but the current placement was apparently content to keep him until then – although the judge asked for confirmation of this in writing.
This matter has remained before the court (rather than progressed as part of the streamlined process) owing to the court’s concerns as to KD’s vulnerability and the need for careful planning of his transition to adult care.
“I’m not satisfied it’s appropriate for an adult to remain in a children’s home,” she said, as she tried to explore what was being done to locate an alternative placement – checking whether all placement options, including single tenancy (something that had caused concern previously because of the risk of social isolation), were being checked out.
There was also some overview of arrangements for KD to go to his grandparents for (unsupervised) overnight visits. They needed appropriate training and to learn about KD’s routines.
The grandmother wanted to be joined as a party, but the judge asked: “would the needs of the proceedings be better met by inviting [the grandparents] to attend and share documents, without formally joining them as parties, with the risks as to costs” – and that’s what was decided. (It appears they had been joined previously and were discharged, due to lack of engagement.)
The judge also raised questions about the use of a harness – which the grandparents say they never use, but it may be that the placement uses it (that was unclear) and the judge asked for “specific dates as to if and when it has been used since 1st July 2022” and “the learning disability nurse’s view as to its future use”.
The next hearing will be remote at 11am on 7th March 2022.
This turned out to be a salutary opportunity for me to experience a “judge’s eye view” of a remote hearing. I can now better appreciate the somewhat isolating and disjointed experience it creates for the decision-maker sitting in the nearly empty courtroom. My thanks to HHJ Hilder for admitting me.
Celia Kitzinger is co-director (with Gillian Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
Promoting Open Justice in the Court of Protection 