Committal hearings and open justice in the Court of Protection

By Brian Farmer and Celia Kitzinger, 1st February 2023

At a hearing on 16^th January 2023, Mrs Lioubov Macpherson – the mother of FP, a protected party in the Court of Protection –  was given a suspended prison sentence for breaching court orders against her. 

At an earlier hearing, Mr Justice Poole had ordered that she must not video or audio record her daughter (or any of the staff caring for her daughter), that she must not post any such recordings on social media and that she must remove those she had already posted. He’d said that if she breached his orders, she might be sent to prison (i.e. he’d “attached a penal notice” to the orders.)  

The judge’s reasons for making these orders, and his understanding of Mrs Macpherson’s reasons for breaching them, plus details describing the videos that Mrs Macpherson posted on social media (now removed) are all laid out in his published judgment: Sunderland City Council v Macpherson [2023] EWCOP 3 In essence, the judge says:

“The purpose of preventing the Defendant from posting films of her daughter and naming her through posts on social media platforms, is to protect FP. Not only is it a gross invasion of FP’s privacy to do so but, in this particular case, the nature of the Defendant’s publications about FP is to create the wholly misleading impression that FP is being abused and “tortured” by those caring for her, as sanctioned by a “corrupt” court system.” (§30)

This blog post is not about the hearing itself (see Claire Martin’s account of the hearing [forthcoming]) but about problems with the way the public (including journalists) were informed about it, and the concerns raised for open justice by this committal hearing and others like it.

The Practice Direction

There is guidance about how committal hearings should be conducted in a Practice Direction: Committal for Contempt of Court – Open Court

This practice direction says that open justice is “a fundamental principle” and that “the general rule is that hearings are carried out in, and judgments and orders are made in, public” (§3).  

Committal applications should normally be publicly listed as follows:

FOR HEARING IN OPEN COURT

Application by [full names of applicant] for the committal to prison of

[full names of the person alleged to be in contempt]

§5(2)

Any derogations from the principle of open justice “can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice” (§4).

When a hearing is held in private: the court should:

“… notify the national print and broadcast media, via the Press Association’s CopyDirect service, of the fact of the committal hearing (whether it is brought on application or otherwise) when and where it is listed for hearing, and the nature of the proposed derogation; and (2) at the outset of the committal hearing the court shall hear submissions from the parties and/or the media on the question whether to impose the proposed derogation.” (§8(1))

And in all cases, the following applies:

“In all cases, irrespective of whether the court has conducted the hearing in public or in private, and the court finds that a person has committed a contempt of court, the court shall at the conclusion of that hearing sit in public and state: (i) the name of that person; (ii) in general terms the nature of the contempt of court in respect of which the committal order, which for this purpose includes a suspended committal order, is being made; (iii) the punishment being imposed; and (iv) provide the details required by (i) to (iii) to the national media, via the CopyDirect service, and to the Judicial Office, at judicialwebupdates@judiciary.gsi.gov.uk, for publication on the website of the Judiciary of England and Wales. (2) There are no exceptions to these requirements. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.” (§13) 

There is also a requirement to provide a written judgment (§14) and publish it “as soon as reasonably practical” (§15).  Finally, “advocates and the judge… shall be robed for all committal hearings” (§16).

Failing to follow the practice direction

It may be, as the evidence suggests, that the committal hearings concerning Mrs Lioubov Macpherson did not comply with this guidance.  And since becoming aware of her case, we’ve also come across a number of other cases – in the Court of Protection and other courts – where it appears the guidance was not followed. 

In the past seven weeks (not counting the Christmas break), Brian has been aware of seven committal hearings.  In addition to the two Court of Protection hearings before Poole J in Newcastle, there were: a Family Division hearing before Arbuthnot J at the Royal Courts of Justice; a Court of Protection hearing before Judge Beckley in Holborn, London; a Family Court hearing before Judge Evans-Gordon in the Central Family Court and a hearing before HHJ Cope in Bristol County Court.

• In five of these seven (Poole J (x2)  Beckley, Evans-Gordon and Cope), the case was not listed in accordance with the Practice Direction on committals.
• In two, Arbuthnot and Evans-Gordon, the lawyers involved seemed unaware of the Practice Direction and unaware of the requirement to notify the press if they wanted reporting restrictions.
• In Arbuthnot, a barrister and a solicitor-advocate both said they would “prefer” the adult defendants to be anonymised.
• In the Evans-Gordon case, the only lawyer, a solicitor, seemed to think he was in a private family court hearing. (The judge ticked him off for not being robed). The judge indicated that she would have to rely on my discretion not to report the names of children aired at the hearing.
• In the Evans-Gordon case, I spoke to three members of Central Family Court staff to point out the error in the listing. None had heard of the Practice Direction. One checked to see whether the hearing was in public or private and said committals were “sometimes” in public.

Holding the Court of Protection accountable 

We’ve recently expressed our concern to Mr Justice Poole about the (apparent) lack of transparency of committal hearings, specifically in relation to the two hearings concerning Lioubov Macpherson (“Luba”).  

We’re reproducing those letters here because many members of the public are anxious about contacting judges with their concerns and we want to show how we’ve gone about it, and also that it can have positive outcomes.  

1.  Letter concerning the first committal hearing (on 8^th December 2022)

19^th December 2022

Dear Judge

Re: COP 13258625

We are concerned about open justice and transparency in relation to this case (COP 13258625) and would like to ask some questions about the hearing before you on 8^th December 2022 in Newcastle and about the forthcoming hearing, which we understand will be on 16^th January 2023, also in Newcastle.

PA Media reporter Tom Wilkinson was at the 8^th December hearing, and we know that you made a Transparency Order preventing P being identified in media reports of the case.

We understand that the hearing was a committal hearing – an application by Sunderland City Council to commit Luba Macpherson.  

As such, we believe that the terms of the then Lord Chief Justice, Lord Thomas’ practice direction in 2015 on ‘Committal for Contempt of Court – Open Court‘  should apply. 

However, as far as we can tell, parts of this Practice Direction were not complied with: specifically,  §5(1)&(2) and §8.

Paragraph 5

5 (1) says  “All committal hearings, whether on application or otherwise and whether for contempt in the face of the court or any other form of contempt, shall be listed and heard in public.” (our emphasis)

5 (2) explains how committals should normally be listed: “Application by (full name of applicant) for the Committal to prison of (full name of the person alleged to be in contempt).”

As far as we can tell the Committal hearing wasn’t listed at all until sometime in the morning of 8^th December 2022, just hours before it was due to start.  It then appeared on Newcastle County Court  Daily Cause list, not the Court of Protection list (as, too, did another hearing in the same case on 6^th December 2022).  We have photographed the listing as it appeared in CourtServe and reproduce it below.  As you can see, it gives no hint that you were dealing with a committal: the words “Committal to prison” do not appear.  The name of the person alleged to be in contempt does not appear.  

Paragraph 8

“Where the court, either on application or otherwise, is considering derogating from the general rule and holding a committal hearing in private, or imposing any other such derogation from the principle of open justice: (our emphasis)

(1) it shall in all cases before the hearing takes place, notify the national print and broadcast media, via the Press Association’s CopyDirect service, of the fact of the committal hearing (whether it is brought on application or otherwise) when and where it is listed for hearing, and the nature of the proposed derogation; and

(2) at the outset of the committal hearing the court shall hear submissions from the parties and/or the media on the question whether to impose the proposed derogation. 

We appreciate that the hearing wasn’t held in private. However, you made an order which prevents the media from identifying the accused person. We would say that must be a  “derogation from the principle of open justice”. We’re not aware that any notification was given to the national media via Press Association’s CopyDirect service. (Times have changed since 2015: the Press Association is now PA Media and CopyDirect is now the Alerts Service.)

Tom also had great difficulty getting into the hearing. He was told by a security guard at the Newcastle Civil and Family Courts Centre that the hearing was a family court matter, was in private, and that he had no right to attend a private family court hearing. 

(We’re aware of several similar recent problems relating to court staff, private signs wrongly being left on doors and listings.  Brian had problems at the Central Family Court in London, when an usher said he couldn’t attend a private hearing, said journalists were expected to give advance warning if they were attending, and insisted that he had to discuss his attendance with a manager.  Celia has experienced signs saying “IN PRIVATE: NO ADMITTANCE” at the two most recent COP in-person hearings she attended before Mr Justice Hayden (both were listed as “in open court”), and private signs were left on the doors at a public CoP hearing before Arbuthnot J on 7^th December 2022.  A member of the public aiming to attend left because he thought the hearing was in private and Brian entered the court only after emailing Arbuthnot J’s clerk to make sure that he could do so.  Additionally, a Family Division committal hearing FD22P00427 before Sir Jonathan Cohen was wrongly listed on December 14. The list said the case was in open court but gave no hint that it was a committal. The listing was changed after Brian queried the listing with the judge’s clerk.) 

Our questions are these:

1. Why did the listing for the committal hearing on 8^th December 2022 depart from the directions set out in the Practice Direction on Committal for Contempt of Court?
2. Why (contrary to the Practice Direction on Committal for Contempt of Court) was no notification given to the national media about the committal hearing on 8^th December 2022?
3. Why (contrary to the Practice Direction on Committal for Contempt of Court) was a representative of the media not permitted to make representation at the outset of the hearing (as opposed to at the end of the hearing).
4. We understand that there is another committal hearing on 16^th January 2022.  Will this be listed and conducted in accordance with the Practice Direction on Committal for Contempt of Court, and if not, why not?

We have considered carefully what may be at issue in this case (and in other committal hearings in the CoP).  On the one hand, a CoP judge makes made a Transparency Order preventing P from being identified, and suppresses publicity relating to relatives of P associated with the case because this is a means of identifying P.  On the other hand, committal proceedings are quasi-criminal, and the starting point is that people should not be given jail terms in secret and the accused should be named.

MacDonald J had the same problem in relation to committal proceedings for a relative of P, Dahlia Griffiths ([2020] EWCOP 46).  In that case, the judge approved an agreement reached with the parties, that the accused could be named but P referred to only as an unspecified “relative” of the accused.

We’re not saying that’s the answer here, but we do think there are arguments to be made before the court decides upon a derogation from open justice that conceals the full name of a person alleged to be in contempt of court – a vulnerable woman who may be sent to prison.  

At the moment, the only story we can write is that a woman who we can’t identify could be jailed – for reasons probably now apparent from the June 2022 judgment (SCC v FP & Ors [2022] EWCOP 30) that has recently been made publicly available – and that she appeared at a committal hearing which wasn’t listed as a committal hearing.

We also think that other media organisations, including media organisations in the north-east, should be notified that there’s an order saying the accused can’t be named, so they can make arguments if they want to. 

Thank you for your attention to these matters and for your concern to ensure open justice.

Celia Kitzinger, Open Justice Court of Protection Project

Brian Farmer, PA journalist

In his published judgment, Poole J accepts that Lioubov Macpherson’s full name should have appeared in the listing of the 8^th December 2022 hearing  (§33):  he had (at that point) made no order that it should be redacted.  

2.  Letter concerning the second committal hearing (on 16 January 2023) 

The second committal hearing was listed as shown below (also in the Daily Cause list for the county court and not in the Court of Protection list on CourtServe). Notice that, again, the name of the defendant (Lioubov Macpherson) is not provided.  But this time it was not an oversight.  

At the 8^th December 2022 hearing, Mr Justice Poole made an order restricting publication of Mrs Macpherson’s name.  The judge says: 

“Whilst the 2015 Practice Direction does not expressly allow for such a restriction, it does allow for derogations from the principle of open justice ‘in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.’ The COPR allowed for the reporting restriction and I regard the ordered restriction as being properly justified at the time that it was made.”

So in the cause list making public the next committal hearing, the fact that Lioubov Macpherson’s name does not appear is deliberate.  

 This time, though, the words “COMMITTAL TO PRISON” do appear.

Celia was on annual leave, overseas, and without her laptop, so Brian wrote the next letter to the court.  

January 9, 2023

Dear Judge

Re: COP 13258625

Application by Sunderland City Council for the committal to prison of Luba Macpherson. 

Thank you for giving me an opportunity to make an argument on behalf of PA Media.

Hopefully, my colleague Tom Wilkinson will be at the hearing.

I appreciate that the applicant and respondent have been involved in Court of Protection proceedings and a standard Transparency Order, preventing P being identified, has been made. However, my understanding is that the litigation has now reached a stage where you have to take account of the terms of Lord Thomas’s 2015 Practice Direction: Committal for Contempt of Court – Open Court  https://www.judiciary.uk/wp-content/uploads/2022/07/practice-direction-committals-for-contempt-2-2.do_.pdf#

(I’ve read the Amendments to Practice Directions… published on January 4, 2023. 

https://www.judiciary.uk/amendments-to-practice-directions-supplementing-the-court-of-protection-rules-2017/…

I don’t think they undermine any of the arguments below.)

I think that you have a problem judges commonly face when family proceedings or CoP proceedings reach a committal stage: you are caught between a rock and hard place.

In family proceedings the media is, normally, prevented from identifying the child, therefore if parents are named there is an obvious risk of jigsaw identification of the child. In CoP proceedings orders, normally, prevent P being identified, therefore if a relative is named there is an obvious risk of jigsaw identification of P. You have an additional problem here in that the “accused” is being criticised for making details of the case public in breach of orders.

On the other hand, the then Lord Chief Justice’s Practice Direction clearly indicates that both the ‘accuser’ and the ‘accused’ should be publicly named. In any event, publicly identifying people who face jail terms must be a basic principle of open justice. 

That common law principle of open justice was explained by Lord Atkinson in Scott v Scott: https://www.casemine.com/judgement/uk/5a938b3d60d03e5f6b82ba1f 

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses…”

Judges, in my experience, normally solve the problem you face by naming the “accuser” and the “accused” but notnaming the child or P. 

I would refer you to two cases (one family and one CoP) overseen by MacDonald J, as examples

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/160.html

https://www.bailii.org/ew/cases/EWCOP/2020/46.html

I’m not aware that taking such an approach has led to children, or Ps, being widely identified, or harmed. Certainly, no problem has been raised in relation to any report I’ve written. I’ve never heard it suggested that taking such an approach undermines the proper administration of justice.

I’d urge you to take a similar approach to the approach MacDonald J took in the above CoP case.

We would argue that the media should be able to name the “accused” mother, and the applicant local authority, in reports of these quasi-criminal committal proceedings. (More than that, I think we should be able to report the mother’s age and full address, as we normally would in criminal cases, to ensure that we identify the right person.)

We would say people have a fundamental right to know the names of members of the public who are facing jail sentences, and the names of people or bodies “prosecuting” them – and that right should prevail here.

The Practice Direction does not say that the name of any child or any P at the centre of proceedings should be made public. We’re not proposing to name P, and we’ll happily agree to any ideas anyone has for muddying P’s identification.

There are many things you could do to make P’s identity hard to find: don’t reveal her name, age or gender; refer to her as a relative or family member; be vague about how information has already been made public, simply say mother has put information into the public domain; be vague about how much information has been made public.

I’d also urge you to step into the real world and consider how much harm P is really likely to suffer if her mother is named.

The vast majority of people won’t read your published judgment, they’ll find out about the case through the media. In reality, how many passengers on the Seaburn omnibus are going to read a report in the Sunderland Echo then try to piece together an information jigsaw? Dr Kitzinger and I might have the inclination and ability to track down your earlier anonymised judgment on Bailii, but will the average person really even try? Will they really start searching for the mother’s Facebook and Twitter accounts? Why would they? People have a lot on their minds at the moment. They’re struggling to heat their homes, struggling to pay food bills, war is raging, Prince Harry is on the front pages, Sunderland look like they’re going to miss out on promotion. In reality, this case isn’t big news and I suspect the vast majority will glance at any report, think how sad life is and how lucky they are, then turn to the back page to check the league table. 

Likewise, how many people are really keeping track of what the mother is putting into the public domain?  She’s not the BBC, she’s not Prince Harry. This case hasn’t been the focus of enormous media attention.

I’d ask you to consider what Hayden J said in paragraphs 16, 17, 18 and 19 of the below ruling:

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Fam/2020/1282.html&query=(loui%20%20se)+AND+(tickle)

My proposal will obviously create a risk of jigsaw identification; however, I think you can take steps to greatly limit that risk.

Someone always knows the identity of the child, or P. Social workers know, court ushers know, friends of families know, neighbours know. Any report will identify the child, or P, to someone. We’d argue that the test must be “will the passenger on the omnibus, the average person, identify the child, or P?” The test should not be “will anyoneidentify the child, or P.” If the test is “will anyone identify…?” then the media can never report any family case, or Court of Protection case, because someone will always be able to work it out.

The Court of Appeal recently considered this issue, when answering a slightly different question –https://www.bailii.org/ew/cases/EWCA/Civ/2022/1221.html, paragraph 46 onwards.

I suspect that, in reality, only the people who know the family will know the identity of the P, and they must already know.  I also suspect that, in reality, relatives, friends, neighbours etc will already know what has happened in this case – and will probably learn of the outcome regardless of whether or not there are media reports. 

I have no doubt that P can be protected from any risk of teasing or bullying, and I don’t imagine that she will reading reports in the Sunderland Echo or on the internet. 

(We’d normally argue that there’s also a broader issue in cases like this. The public should be told that there are consequences if judges’ orders are breached. In that vein, we’d normally make the “what’s in a name?” argument. Lord Rodger in re Guardian News and Media Ltd and others https://swarb.co.uk/in-re-guardian-news-and-media-ltd-and-others-hm-treasury-v-ahmed-and-others-sc-27-jan-2010/: “What’s in a name? ‘A lot’, the press would answer…” Reports with names have more impact than anonymous reports. However, as I said above, I’m not suggesting that this case is big news and more than anything we’re making arguments on a point of principle. Nevertheless, the case may attract some publicity and it may be that publicity will have some deterrent effect and protect other Ps and children. On that basis, I’d ask you to take account of Lord Rodger’s analysis.)

We’d say that the council should be named, regardless of your decision about naming P’s mother. The Practice Direction says the applicant in committal proceedings should be named. Taxpayers have a right to know what councils do in their name and with their money. If the council isn’t named, council members may well not know their council is involved. They certainly won’t be able to debate the case in public. The local MP won’t know that the council is in their constituency. Not naming the council will stifle political discussion, particularly local political discussion. We’d say limiting debate about such important, and difficult, cases as this, will make it harder for lessons to be learned and is not in the best interests of this P, or Ps generally. 

My understanding is that concerns are centred on the publication of P’s mother’s name. I’m not aware of an argument that naming the council would create jigsaw identification of P, or even create a risk. If P’s mother isn’t named, how could the average person work out P’s identity simply by knowing the name of the council involved? 

I think in any weighing of the Article 8 rights of P, and P’s mother, against the Article 10 rights of the media and the public, the balance here falls on the 10 side. Naming the applicant and respondent would create a limited risk to P: not naming would effectively be secret justice.

If I can help with any other points, please let me know. 

Brian Farmer, Reporter, PA Media

Brian submitted this letter in advance of the hearing.  At the beginning of the hearing, Mr Justice Poole said that he did not need to hear submissions on this matter.  He referred to. Brian Farmer’s “very helpful submissions” and in particular to these passages from Hayden J’s judgment in the family court case: PA Media Group v London Borough of Haringey[2020] EWHC 1282 (Fam):

16. Ubiquitously, it is now recognised that the primary risk to children’s privacy arises in consequence of public postings on social media. Ms Wilson speculates that the crowd funding scheme, organised by the mother with great effect, most probably involved a significant number of small donations rather than a few particularly generous individual benefactors. Ms Wilson reasons from this that many donors might be alerted by the judgment to investigate, by search engine, whether this was the family they gave financial support to. This, it is hypothesised, might lead to a plethora of social media posts which would be difficult to monitor. Ms Wilson also states, that whilst Ms Tickle focuses on the risk to child B by way of “playground taunts” the greater risk probably arises online and insidiously.

17. Mr Farmer considers that these concerns, though intellectually sustainable, are not, as he puts it, “rooted in the real world”. Mr Farmer is a seasoned journalist, he argues the following:

“I don’t think the concerns are enough to justify the Council’s anonymisation. I think, in the real world, the chances of people putting together an identity jigsaw are small and the chances of someone putting together that jigsaw and causing harm, smaller still.”

18. In admirably simple language, Mr Farmer makes the important link between “jigsaw identification” and the likelihood of “harm” (i.e. emotional distress) to the children. He is correct to emphasise the indivisibility of the two. Furthermore, both Ms Tickle and Mr Farmer respectfully suggest that very few members of the public will take the time to seek out and read my actual judgments, relying instead on what they read in the media. I have no doubt, at all, that this is largely true. Whilst it may mean that the public has an incomplete understanding of the case, it also follows that they may not be alerted to the pieces of information which might provide a jigsaw to identification.”

PA Media Group v London Borough of Haringey[2020] EWHC 1282 (Fam):

“Similar considerations apply to a case in the Court of Protection”, said Mr Justice Poole.  “In fact, all three Counsel agreed that I should permit the Defendant to be named in reporting of these committal proceedings. I indicated that I too had formed that view.”

Some questions for the Court of Protection

Two Practice Directions have been issued in the past decade: the first issued in May 2013, superseded by another in March 2015. They are written in pretty simple, plain, English and both underline basic principles: justice should be seen to be done and people shouldn’t be jailed in secret.

Yet the evidence of the past two months alone seems to show that the 2015 Practice Direction is not being followed to the letter in Family and Court of Protection committal cases.

Evidence shows listings are done wrongly – and may not even include the words “Committal Hearing”. Defendants are sometimes not named, without any formal advance notification to journalists and without giving journalists the opportunity to make submissions about the reporting restrictions at the outset of the hearing.  

It makes us wonder why this is happening. This is British justice we’re talking about. We refuse to believe that it’s deliberate. Nothing we’ve ever seen in Family courts or the Court of Protection leads us to believe that judges or lawyers would deliberately breach Practice Directions. Is it simply carelessness? Listing staff making errors which are not spotted until it’s too late? Is it a lack of training? Are court staff being made aware of the Practice Direction? Or are mistakes inevitable because everyone is overworked? Do judges and lawyers need a bit of revision, perhaps? Is the problem that lawyers specialise in certain areas but hardly anyone specialises in contempt or committal? Is it the media’s fault? Should journalists be waving more red flags when things go wrong? 

We think these are questions everyone involved should think about.

An inaccurate listing on a court noticeboard might seem a small thing. But in contempt cases, that inaccurate listing might lead to your neighbour being sent to jail in secret. That would be a very big thing indeed.

Brian Farmer is a PA journalist with extensive experience in both the Family courts and in the Court of Protection for more than a decade.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She’s observed more than 380 COP hearings since May 2020.