By Celia Kitzinger, Gill Loomes-Quinn, Claire Martin and Kirsty Stuart, 15 June 2023
Three years ago today, on 15th June 2020, Celia and Gill launched the Open Justice Court of Protection Project, at the beginning of the COVID-19 pandemic.
It was born of our passionate belief that “publicity is the very soul of justice” at a time when it seemed that the public health emergency was closing down the opportunity for people to observe the court in action.
When the COVID-19 public health emergency first began in March 2020, Court of Protection hearings moved from physical courtrooms to ‘remote’ hearings via telephone and video-platforms. For months, Celia had been supporting “Sarah” through the decision-making process about whether life-sustaining treatment was in her father’s (P’s) best interests. It had just reached court – and it turned out to be the first all-remote hearing of the pandemic. It was a brutal experience for Sarah, as Celia describes here: Two years on: A postscript to remote justice. Seriously concerned that all remote hearings would be equally alienating for P and their family, Celia decided to watch other remote hearings, tweeted about her experience, and found others were interested. Gill spotted the opportunity for a wider project and created the website, and we launched the project, on 15 June 2020. We said: A key aim of the project is to raise awareness of the work of the Court, and its social impact. Blog posts covering observations by Public Observers, analyses of published judgments, and other social and legal commentary will be at the heart of how we go about achieving this aim. (Welcome Page 15 June 2020)
We had no funding, and no institutional backing – then or now. We were just two individuals who cared passionately about open justice in a court which makes draconian decisions in relation to the human rights of some of the most vulnerable people in society.
It didn’t occur to us to “ask permission” of anyone to set up the Project (which we imagined would be something of a niche interest). If hearings were open to the public then we would go along, and encourage others to attend, and we’d write about them – subject to reporting restrictions.
We couldn’t have anticipated the extent to which simply doing something that seemed to us quite basic and straightforward would have such a ripple effect throughout the Court of Protection and beyond.
Three years on, we have a much bigger project on our hands than we ever imagined. We simply didn’t predict the degree of interest and enthusiasm the project has stimulated, or the extent to which it has encouraged and supported people from a range of backgrounds (including health and social care professionals, and people who are themselves engaged in ongoing proceedings in the Court of Protection) to observe the court in action, and to share their experiences and their reflections via our blog and social media.
We’ve supported thousands of people to observe Court of Protection hearings and we’ve published 368 blog posts in three years – that’s about one every three days! They’ve opened up public awareness of the Court of Protection as never before.
As the extent of the public interest became apparent, Kirsty and Claire joined the Project – and now we’re expanding again.
Welcoming “Anna”, Daniel Clarke, Victoria Butler Cole KC and Ian Brownhill
We’re excited to announce that, as of today, we have two new members of the core group of the Open Justice Court of Protection Project, and three founding members of our Advisory Group.
“Anna” and Daniel Clarke join Celia Kitzinger, Gill Loomes-Quinn and Claire Martin on the core group – the group that makes policy decisions about the Project, and does the day-to-day work of running it (e.g. maintaining the website, posting information on social media about hearings open to the public, selecting “Featured Hearings” for our home page, dealing with queries from the public, supporting observers to gain access to hearings and to write about them, editing and posting blogs and more!
“Anna” is the author of the most-read blog post of the last 12 months (with 3.4k views). She’s the daughter of a woman with Alzheimer’s who was at the centre of (what Celia described as) a ‘bog standard’ s.21A deprivation of liberty challenge. Pseudonymised as “Anna” because she is bound by a Transparency Order, she describes candidly how angry and upset she was when she first learnt about the court proceedings, and what happened as the proceedings progressed (see: ‘Deprived of her liberty’: My experience of the court procedure for my mum). She has published several other blog posts as an observer of other people’s hearings, as well as making a podcast, giving talks about the court, and engaging with other forms of outreach. Anna will be making an application for the Transparency Order in her mother’s case to be varied so that she can use her real name when writing about her experience, and contributing to the Project. You can find more information about Anna on the “Meet the Team” page.
Daniel Clark has been contributing blogs to the Project for about eighteen months, initially from his perspective as a paid carer in the public and private health and social care sectors, with particular interest in behaviour that may challenge and the use of restraint. He’s now a PhD student in the Department of Politics at the University of Sheffield, focusing on the oppression of older people as a social group. Daniel is also interested in the ways in which the Court of Protection approaches issues of physical restraint. He is a seasoned observer of Court of Protection hearings and has regularly blogged for the Project over the last year or so. For more details see the “Meet the Team” page.
We’ve also created a new Advisory Group composed (so far) of three lawyers with expertise in the Court of Protection. Kirsty Stuart, who has been involved for the past two years as a member of the core group is moving to the Advisory Group, and we are honoured and delighted that she will be joined by two people who have provided a lot of informal support and information to us over the past three years, and who are now formally part of the Project: Victoria Butler-Cole KC and Ian Brownhill. They’ve both blogged for us before to explain legal concepts and procedures and as members of the Advisory Group will be doing so in future. See the “Meet the Team” page for more information about all three.
The last 12 months
It’s been an interesting 12 months for the Project, as increasingly hearings have moved back into physical courtrooms – offering opportunities for in-person (and hybrid) observations but also, perhaps inevitably, raising new concerns about access. In general, though, we are pleased to be able to say that listings (while still far from perfect) have improved massively: most do now correctly state that hearings are “in public” and most give some indication of what the hearings are about.
Two issues, in particular, that have arisen this year in connection with our work are (1) ‘closed hearings’ and (2) committal hearings.
In relation to ‘closed hearings’, we were dismayed to discover that we’d misreported the facts of a case due to the judge having decided to run secret ‘closed’ hearings (without P’s mother and without us) in parallel with the hearings in open court which we’d attended and reported on. We didn’t know about the decisions made in the secret hearings (the intention was to conceal this information from P’s mother) and the observers felt we had been misled by the court, making (as we said) a mockery of open justice. We wrote a blog about this here: Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post and publicised the threat this poses to transparency on the Radio 4 programme Law in Action (“Secrecy in the Court of Protection”). We subsequently made a submission to the subgroup of the Rules Committee set up to advise the (then) Vice President about how closed hearings should be dealt with in future. This led to New Guidance on Closed Hearings from the Vice President of the Court of Protection. We don’t think any of this would have come to light without our Project, and we’re proud to be able to highlight a concrete achievement in ensuring better transparency in the future.
In relation to committal hearings, it’s only this year that we’ve had the opportunity for the first time to observe and report on hearings at which judges consider whether someone (usually a family member) should be sent to prison for breaching court orders – for example, for publishing material on social media identifying P when there’s an order that they must not do so, with a penal notice attached. This year we reported on one such hearing in A committal hearing to send P’s mother to prison – and the challenges of an in-person hearing. This is an ongoing case: P’s mother recently lost an appeal against her suspended custodial sentence. One reason why we’ve not observed these committal hearings previously is because they have not been correctly listed. There is a Practice Direction (Committal for Contempt of Court – Open Court) which says that 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), and that these hearings should normally be publicly listed with the information that an application is being made to commit someone to prison, and the full names of that person (§5.2). In fact, it seems that some committal hearings – in both the Court of Protection and in the Family Court – have been listed as private, the name of the alleged contemnor is not published, and the fact that it’s a committal hearing is not included (see Committal hearings and open justice in the Court of Protection)). So we haven’t known about them, and haven’t had the opportunity to observe them. Obviously it’s a really significant concern for transparency if people are being found to be contempt of court, and handed prison sentences, effectively in secret. There is also an ongoing issue as to whether the name of the people found to be in contempt of court should always be public. Like ‘closed’ hearings, committal hearings raise some serious challenges for transparency, and we will continue to address this.
The next 12 months
Our plans for the next 12 months are to continue with our core activities of supporting observers and bloggers in the Court of Protection, while continuing to raise concerns about the barriers to open justice, including closed hearings and committal hearings. There are also ongoing problems with listings, ongoing failures to provide opening summaries, and patchy compliance with observers’ requests both for transparency orders (which, really, we shouldn’t have to ask for but should be sent to us as a matter of course) and for position statements. We hope, too, now that we have the Advisory Group (whose role will become defined and developed over the course of the year) for more ‘explainer’ blogs setting out for non-legal readers some of the underlying concepts and case law of the court. Another obvious task in the months ahead is to contribute to the Ministry of Justice open consultation on “Open Justice: the way forward”.
We want to thank all the judges, lawyers, and court staff, who have supported transparency over the last 12 months – responding to emails and phone calls, sending out links, trying to deal with audio problems (especially in hybrid hearings), and dealing with our concerns about listings. We appreciate the opening summaries (please keep them coming!) and really value the opportunity to read position statements, which support accuracy of reporting. We recognise the time-commitment involved and very much value your obvious dedication to transparency and open justice. We look forward to working together productively over the course of the next year.
Finally, thank you to our bloggers over the last 12 months (in alphabetical order): Diana Sant Angelo, “Anna” (P’s daughter), NB (P’s cousin), Georgina Baidoun, Joanna Booth, Charlotte Buck, Jordan Briggs, Daniel Clark, Libby Crombie, Lorraine Currie, Jamal L Din, Brian Farmer, Claire Fuller, Catalia Griffiths, JH (a protected party [P]), Astral Heaven, Jenny Kitzinger, Sara Linnane, Ami McLennan (P’s mother), Zack Moss, Aisling Mulligan, Ruby Reed-Berendt, Laura Room, Bridget Penhale, Josie Seydel, Upeka de Silva, Rhiannon Snaith, Eleanor Tallon, Bonnie Venter, Aswini Weereratne, Avaia Williams and Jemma Woodley.
HAPPY BIRTHDAY TO US!
Promoting Open Justice in the Court of Protection 
Reblogged this on Nightingale Rights Initiative.
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