A newly addicted observer’s reflections

By ‘Jean Louise’ (daughter of a current P), 24th March 2024

I found the Open Justice Court of Protection Project’s website a few weeks ago due to an issue in my own family, the details of which I hope to share in due course, transparency orders allowing. 

Jury experience in my twenties had piqued my interest in the workings (and failings) of our justice system sufficiently that over the years I observed several hearings from the public gallery of criminal and civil courts. 

Despite pursuing a corporate career, my interest in the law didn’t fade, such that post early-retirement I studied a master’s in law and an LPC (acquiring a distinction along with heightened doubts of the efficacy of our legal system). 

I was therefore not daunted by the formality of the court process itself, though I had never observed a virtual hearing before and law school had provided only a perfunctory nod to the functions and workings of the Court of Protection. 

So, underprepared and imbued with the zeal of an absolute beginner (having only skim-read a few pages of the Open Justice Court of Protection Project’s fascinating content), I followed the instructions and sent off my first public observer request. 

I discovered that getting to join a hearing was a cumbersome, time-consuming process with ‘hit and miss’ results, rendering it accessible only to people with the luxury of time. In the first few weeks of enjoying my new ‘hobby’ I dedicated time to it, though in reality I spent as many hours attempting to get a ‘Golden Ticket’ to observe hearings as I did in hearings themselves. Several of my observer requests were ignored by the court, other hearings were ‘vacated’ at last moment. At one point I suspected the court had decided my new hobby was verging on an unhealthy interest and that I had perhaps now had ‘enough-open-access-to-justice-thank-you-very-much’. I asked the Project’s view of my experience and was reassured to learn that in their experience approximately one in every three hearings gets vacated, sometimes because the parties reached agreement outside of court, other times due to the unavailability of required reports. 

My observer attempts varied dramatically across the different regional courts, and even between staff within a single court, with responses on a wide spectrum. At one court, a staff member bent over backwards to help me understand the court’s mechanics and actively encouraged my interest in observing. At another court, a staff member (equipped with a tenuous grasp on the principles of open justice) seemed to interpret my phone call (to enquire whether my earlier emailed observer request had been actioned) as highly suspicious to the extent she hung up on me, leaving me with the distinct feeling she was about to ‘report’ my request (to join a hearing involving total strangers, discussing an issue I was not aware of) to someone more senior. 

I observed my first hearing on Monday 29^th January (COP 13868207 Re TW heard by Mrs Justice Theis). I didn’t capture notes at that hearing (or any of the six I attended subsequently), as I was too preoccupied with understanding the mechanics and etiquette of the hearing to feel equipped to offer any useful insight or observation about the substantive hearing.

I was surprised by the ‘last-minute’ nature of the organisation. The hearing was scheduled to start at 2pm but, after acknowledging my observer request at 9am, I had heard nothing more from the court. At 2.07pm, about to give up, I received the link for the hearing and was relieved to find everyone was late, not just me. At that first hearing I got to wield the observer’s power in relation to the Transparency Order (which luckily) I’d briefly read about on the Project’s website. Sounding more confident than I felt, I explained I hadn’t received the TO but could read and confirm my understanding of it quickly once I received it (which I finally did when it arrived at 2.22pm). 

Based on my (admittedly very limited) observer experience, I was fascinated and appalled in equal measure by the execution and content of the hearings I observed. After most I was left with an unshakeable discomfort that significant decisions and outcomes were severely hampered by the incompetency and inadequacy of the social workers involved in the case (itself a symptom, in my opinion, of crumbling social care systems and the effects of austerity), and of the LA’s representing solicitors and counsel (I suspect due to an equally crumbling legal system). 

In most of the hearings I watched,  a significant amount of judicial time was dedicated to the rebuking of the LA and their legal representatives (or, less commonly, P’s representatives). These criticisms seemed justified, given almost all parties and their representatives revealed a disconcerting lack of understanding of the contemporaneous facts of the case, or status of the proceedings. As an unprepared observer it seemed my own confusion was often dwarfed by that of the multiple professionals involved (assumedly most if not all of them having acquired, and now painstakingly justifying, their lack of knowledge at the taxpayers’ expense). 

A further concern I had after some hearings was the extent to which the voice of P (purportedly, ‘at the heart of the proceedings’) and P’s family, was absent, diluted or ignored during the hearing. This seemed to be so even when P was present. After one hearing I was left doubting why P was the subject of proceedings at all given she spoke to the court more knowledgeably, lucidly, and eloquently than many of the ‘professionals’. 

At some hearings I was a sole observer, at others alongside co-observers. At each hearing I felt the observation was potentially having a material impact on the hearing or outcomes (which I found reassuring and uncomfortable in equal measure). Whether this feeling was justified, and if so to what extent it had a positive or negative effect from the perspective of the involved parties, is something I’m less sure of. 

I wondered how I could practically (and legally) observe an unobserved hearing to test my ‘observer-effect’ theory. Last week an opportunity to do that presented itself in the form of a hearing in which my dad is the ‘P’ and I am a respondent. In time, I hope to learn from the Open Justice COP Project’s experience  in seeking to lift the TO, enabling me to tell Dad’s story.

My notes of the hearings I’ve observed so far have all been too incomplete and inadequate to offer for public consumption. I’m hoping writing a good blog as an observer is a skill I can develop, allowing me in future to contribute a blog as a small token of my gratitude to the Open Justice COP  Project for their enlightening work. 

Having wondered after my first hearing whether I was the only person who would be interested in sharing perspectives of hearings observed with co-observers, a sort of real-life ‘book group’ equivalent for Court of Protection observers, I was delighted to discover that the COP Project have effectively just that, in the form of an observers’ WhatsApp Group and the arrangement of special group observations for high-profile hearings where 5-10 observers will discuss the hearing in real-time and later produce a group blog. Some great examples of these group blogs are: “Hunger striking for his identity”; Family witnesses in court: Four reflections on Re AH (A Rehearing),  and Tampering with equipment.

Alongside these, I will continue to feed my new-found addiction by reading the material on the Project’s website and a selection of the full judgments of the Court of Protection in its first twenty years, and (where I am able to acquire a ‘Golden Ticket’), attend as many hearings as possible. Perhaps I’ll ‘see you in court’.

“Jean Louise” is blogging under this pseudonym as she is involved in current Court of Protection proceedings. Having retired early from her own corporate career,  she has developed her interest in the law in general (particularly the law surrounding coercive control) and the Court of Protection.