Transparency in the 'secret court'

Criticisms of the Court of Protection have raised the question of whether it should be opened up to more media scrutiny, say Jacqueline Almond and Catherine O'Reilly

A woman has recently been told that she cannot give instructions on her sick, mentally ill daughter’s behalf during litigation proceedings in the Court of Protection.

The daughter, who is 32 years old, lacks the mental capacity to give instructions herself. However, following a preliminary hearing, Mr Justice Peter Jackson, who is overseeing this case, ruled that decisions might have to be made which could have ‘mortal consequences’ for the young woman. He noted that the issues would need to be dealt with ‘dispassionately’ and that this would be too much to expect of any parent. The case is expected to return to court for treatment options to be discussed at a hearing in April, and, in the meantime, Jackson J has also ruled that neither the daughter nor the institutions responsible for her care can be identified.

The progression of this case is once again likely to raise the issue of transparency in the Court of Protection, the so-called ‘secret court’.

It is often said that public access to court proceedings, either through accessible hearings or open reporting in the media, plays a fundamental part in upholding the principle of justice and gives the public confidence that justice is being done correctly. This media access has, however, been resisted in family and Court of Protection proceedings until quite recently. A series of recent comments by the judiciary and the press have raised the question of whether the Court of Protection would benefit from being opened up to more media scrutiny.

In 2014 District Judge Anselm Eldergill said that there ‘seems to be no good general reason for not permitting accredited members of the Press to attend hearings in the Court of Protection’. These comments followed those of Mr Justice Charles, who indicated that the Court of Protection’s routine secret hearings could actually be in breach of human rights laws.

However, difficulties arise because of the subject matters that the Court of Protection is often required to deliberate upon. While transparency is to be encouraged in legal proceedings, the matters brought before the Court of Protection are often private and sensitive, relating to health or financial issues.

Unfortunately, the lack of transparency to date has resulted in the Court of Protection being criticised by the media, which has accused the court of mishandling some £2bn of funds and depriving people of their liberty while hiding behind a screen of secrecy that it argues is essential to protect the vulnerable parties to proceedings.

Those of us who work with the Court of Protection are aware that the judges often have difficult issues to deal with and also know that the court has reduced its direct control, particularly over financial deputies. However, it is important that the public has confidence that justice is being done, and although these changes cannot be implemented overnight, comments by judges working within the court are to be welcomed to create more transparency in this sensitive area. SJ

Jacqueline Almond, pictured, is a partner and Catherine O'Reilly a solicitor at IBB Solicitors

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