Two law students’ first observation of a COP hearing

By Kei Yong and Isabella Treston, 31 January 2023

As two students studying the Bar Practice Course and Masters of Law in Liverpool, we were given the opportunity to attend remote hearings in the Court of Protection as part of our Masters. Neither of us had previously attended or known a lot of information regarding the Court of Protection. This experience allowed us to gain further insight into not only the court but also as to how it operates. 

The hearing we observed (COP 14116349) was in the Royal Courts of Justice, via MS Teams, in front of Mr Justice Keehan at 2pm on 17th of January 2024. 

Mr Sebastian Elgueta of Garden Court Chambers, represented the applicant Local Authority. The respondent, P was represented  – via her Litigation Friend, the Official Solicitor – by Ms Olivia Kirkbride, of Serjeants’ Inn Chambers. 

Aside from them, there were other people present in the hearing, namely, the instructing solicitors, P’s mum (who is also a party to proceedings), P’s social worker, the social workers’ manager and another public observer. 

In a previous instance, we found ourselves in a situation where we were not provided with the link to access a hearing we had requested to observe. Per the instructions on the website, at approximately 6pm on the 16^th of January 2024, we had both emailed the correct email address asking for the link to the 10:30am hearing the following morning. At 10:00am on the 17^th of January 2024 we were sent an email saying we would receive the link shortly, but this did not happen. As a result, we called and sent further emails in an attempt to receive the link. Ultimately, we received the link after speaking with several people, at 10:55am. We felt that we would have missed too much of the case, and therefore requested the link for the hearing at 2pm instead. Fast forward to our recent request, and we were pleased to receive the link for this hearing promptly. While we appreciate the opportunity to witness legal proceedings, we believe there is room for improvement in the communication process surrounding access to hearings.

In this hearing, we were not given an opening summary, contrary to the guidance from the former Vice-President of the Court of Protection. The absence of an opening summary in this hearing raised concerns, as it left us without a foundational understanding of the case, making it challenging to navigate the case and hindering our ability to fully grasp the implications of the hearing. We believe the opening summary is not merely a procedural formality but a fundamental pillar of open justice. It serves as a crucial guide and assists public observers in the hearing in understanding the intricacies of the matter; an integral element to promote transparency and accessibility within the legal system.

The order that the Local Authority seeking was to transport P from her current residence (at her grandmother’s house) to a care facility where she had previously resided for a period of respite. Prior to this period of respite, P had lived with her mother. This decision was agreed upon by the local authority and the Official Solicitor at a pre-hearing meeting. Earlier in the week, P met with a representative of the Official Solicitor, and she expressed her excitement about moving back to the care facility where she lived before. 

Although P is ‘non-verbal’, the Local Authority mentioned that from P’s facial expressions, they were certain that P was looking forward to moving back to the care facility.  However, there was no evidence called before the court to assist the court with this decision making. The court merely relied upon the statement provided by the Local Authority. This led to P’s mother showing strong objections to this order. She expressed that this was not her daughter’s, P’s, wishes or feelings. P’s mother further argued that P would not have reasonably understood what the situation was and begged the court not to make the order.

We found that there were potential issues with access to justice in this case. The mother of P stated that she had a solicitor, but was still waiting on legal aid, thus leaving her with no representation. She explained that she felt as if she had not been given a chance to defend herself, saying that “I haven’t gotten a chance to speak for myself”. The setting of the court and the use of legal jargon, put P’s mum, a litigant in person in a disadvantageous position. This left an impact on both of us, as we naturally felt sorry for a mother who was facing being further separated from her child. 

Another issue raised by the mother was that it was her opinion that the Local Authority had been lying and misleading the court. Specifically, there was a suggestion she may have breached a previous injunction, made by Mrs Justice Arbuthnot, which prohibited her from seeing P. The mother insisted she had not breached this order and was therefore confused. Further, the mother stated that her daughter was not in danger and that the Local Authority were also lying about this.

It was an extremely emotional case, with the mother crying and pleading with the judge not to make this order. However, we thought that the judge, Mr Justice Keehan, handled this situation very well. Mr Justice Keehan was empathetic, stating that he understood how she felt, and took his time explaining certain points which the mother did not understand. The judge emphasised that he was making this order as it was in the best interest of P’s welfare, and that it aligned with P’s own wishes and feelings. Mr Justice Keehan further explained to the mother that she would be able to object to his decision, through an application to re-list the case which he would be willing to consider at a later date. This would allow him to evaluate the situation once P had been moved to the care facility.  

Finally, Mr Justice Keehan stated that the updated care plan should be sent to all parties by 4 pm on the 17th of January 2024 (same day as the hearing) and asked for the Local Authority to clarify the plan for P’s move. Local Authority representatives confirmed that the move would occur on 18th January 2024 at 11am and that a vehicle suitable for a wheelchair had been organised. 

After this hearing concluded, we reflected upon the decision, as to whether we thought it was the correct decision, within the eyes of justice. Although we would require more information regarding the background of the case, and why P was specifically being transferred, we formed the view that it was the correct decision. Mr Justice Keehan took P’s welfare into account as well as considered that P had made it clear that she was excited and happy to move. Although it must have been a tough choice to make, we believe it was the correct one. 

Overall, despite the issues with the link and the lack of an opening summary, we both found the experience of being a public observer within the Court of Protection to be a positive one. Being able to gain insight into how such a court operates was an interesting change from our experiences attending the Liverpool Crown Court. Further, as this was our first time attending a court hearing remotely, it was interesting to see how technology has developed within the legal world. 

Kei Yong is an international student from Malaysia, currently pursuing the Bar Course and LLM at the University of Law and aspiring to become a barrister.
Isabella Treston is a BPC LLM student, studying in Liverpool. As an aspiring criminal barrister, she has an interest within access to justice and the Court of Protection.