By Amanda Hill, 21st July 2024
This blog is about an all-remote hearing before a judge (HHJ Brown) who ruled – very unusually for a Court of Protection hearing – that no parties’ names should be used in the course of the hearing. She asked for the protected party (P) to be refered to with an initial all the time, rather than by his first name. She directed that P’s mum should be referred to as ‘Mrs A’ throughout. All place names were to be anonymised too.
The judge made this decision because there were observers present, even though we had all received the Transparency Order. In my view, this decision, made with the best of intentions to protect the family’s privacy, had a negative impact on the hearing. It’s the first time I’ve ever seen a judge do this. I hope that I don’t see this unusual decision again.
Background to the hearing
The case (COP 12219141) has been blogged about before: COVID-19 vaccination with sedation: Instructing an expert. When it was listed as back before the court, this offered an opportunity to find out what had happened since the last hearing. A message was posted on the Open Justice Court of Protection’s Observers’ What’s App group to see if anybody could observe it[1] and four people, including me, were available and requested the link in the usual way, as outlined on the OJCOPP website. The hearing was listed for one day and was due to start at 10am.
From the previous blog, I knew that P has a learning disability, Down’s Syndrome and autism. Although that blog was about whether P should receive the Covid vaccination, the situation for this hearing was different. It turned out to be a hearing to do with P’s residence and care, and contact with his mother. P’s mum wanted him to go and live with her rather than in supported living. If he couldn’t do that, she wanted increased contact with him (her contact is currently restricted by the court) and she also wanted certain elements specifically inserted into his care and support plan. P’s mum, whom I shall refer to as Mrs A, (as the previous blog has already referred to P as DA) was present and gave oral witness evidence and was subject to cross-examination. A Social Work Team Leader also gave oral witness evidence.
The judge’s reaction to observers attending the hearing
P was represented via his Litigation Friend the Official Solicitor by Bethan Harris. The Local Authority was represented by Kate Round and Kate Mather represented P’s mother. Celia Kitzinger emailed requesting everyone’s position statement. Position Statements set out the position of the respective party and usually greatly enhance understanding of a hearing. The issue of the position statements came up at the start of the hearing as in response to Celia’s email one of Counsel checked with the judge whether they could be provided to observers.
At this point, the judge decided that all observers could be provided with the Position Statements but that they should be anonymised first. She actually read out the names of the four observers to whom the Position Statements should be sent. This meant that the legal teams had to spend time during the lunch break anonymizing the Position Statements but it also meant that we received them before the hearing started again after lunch, and so we had the chance to read them and understand more about the issues at hand. This was very beneficial for open justice.
However, the judge also decided that no names or place names should be used in course of the hearing itself. This was very unusual. It’s not something I have seen before in the hearings I have observed. And Celia confirmed to me that she has observed over 550 hearings and has never seen a judge take such action.
Impact of the judge’s decision
(i) Impact on the hearing – a person-centred focus?
The judge was acting with the best of intentions, to protect P’s privacy. However, it was clearly an effort for everybody to remember to use ‘P’ instead of his name. I got the impression that it was very hard for Mrs A to hear her son talked about as P and indeed for her to use that term. She was very emotional anyway, and she seemed to hesitate before saying P, as though it was an effort to remember to do that. I felt that it was dehumanizing, reducing her son to an initial.
It was clear to see during the hearing that it was already a very difficult situation for her and I believe that the additional worry of thinking about having to refer to her son as P and listening to him referred to that way made her feel even worse. At times she was crying and she was finding the hearing difficult. It was an extra effort for all the participants not to identify P by name, and sometimes of course his name slipped out (as I had guessed it would), including by the social worker team leader who was a witness.
In my opinion, it added a degree of additional stress for the witnesses, who are probably not used to appearing in Court of Protection hearings. I also wondered what the impact would have been on a P themselves if they had been in court.
(ii) Impact on observers
Speaking for myself, observing the hearing felt very uncomfortable. I was conscious that because of my presence the judge had made a decision that was making the hearing more difficult for those involved. If there had been no observers, those present would not be worried about naming P – the judge had made this decision solely because there were observers present. Maybe for legal teams and professionals the impact would be less, but I suspect that they also would prefer to have named P. However for his mum I felt the situation was unbearable. She was struggling with her emotions and having to remember not to name her son surely added a degree of extra tension and stress. I felt bad that my presence had contributed to that. And I also felt that it was an unnecessary action by the judge to have taken, as though we weren’t trustworthy and that we wouldn’t adhere to the Transparency Order.
(iii) An over-reaction?
Observers are subject to Transparency Orders. This means that when we publish something about a hearing, restrictions are placed on us as to who and what we can identify. If we don’t follow the provisions in a transparency order, we can be found in contempt of court. So even if P’s name had been openly used in court, I would not be able to name him or publish any other identifying information.
One of the barristers, Kate Round, recognised the force of the transparency order on observers, and at one point she deliberately named the care home where P had lived at one time. She did this at a time when Mrs A was upset, and I may be wrong but I felt that she did it to make it easier for Mrs A. She said “Do you remember when P moved to LR (fully named in court) – I’m going to name it, everyone knows there is a transparency order…..”. This was a recognition that even where names were used in court, observers would not be able to refer to them in anything published after the hearing. So there are already rules in place to protect P’s privacy and I would question whether it was really necessary for the judge to impose additional restrictions in the hearing itself – restrictions that in my opinion made the hearing more difficult for those participating. Maybe it comes down to a training issue for judges, as Her Honour Judge Brown was not obstructing open justice and had welcomed us into her courtroom and ensured observers were sent (anonymised) Position Statements . It seemed to me to be overly cautious. Despite the fact that P’s name is routinely used in court hearings, I am not aware of any instances over the last four years when observers have breached the transparency order forbidding publication of P’s name. So, the system seems to work well as it is, without this additional precaution.
One contrasting approach is that of Mr Justice Hayden. He insists that a person’s name should be used, and that anything else would be dehumanizing. He makes clear that the transparency order prevents observers from identifying P, their family and where they live. This is a neat and simple solution. Going further in a hearing to protect P’s privacy is therefore unnecessary.
Open justice in the Court of Protection has come a long way since Celia Kitzinger and Gill Loomes-Quinn launched the OJCOPP in June 2020. Most judges are making it easier for observers to attend court proceedings and more observers are coming forward. However, this hearing showed that there are still improvements that can be made, not least in how judges assess what it means to have observers in a hearing.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on X as @AmandaAPHill
[1] The Open Justice Court of Protection Project runs monthly webinars on how to observe a CoP hearing and those attending can ask to be added to the WhatsApp group. The purpose of the group is to alert members to upcoming hearings and for core team members to provide support observing if needed and possible. I was not able to join for the whole day due to other commitments. Celia Kitzinger has kindly allowed me to use her notes from the part of the hearing I didn’t observe.
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