Transparency and the courts

Sabrina Polak examines issues around transparency and the ‘interface’ between the Family Court and the Court of Protection.

A pilot scheme has been introduced to operate from 29 January 2016 to 31 July 2016 which will enable the public and media to gain access to Court of Protection hearings. The aim of the Pilot is for the existing default position of private hearings to be reversed. The scheme is to apply to hearings in all proceedings except applications relating to serious medical treatment and applications for a committal order and apply to hearings which the court has, on or after 29 January 2016, directed to take place (but not hearings taking place after that date pursuant to a direction before that date).

Sir James Munby, President of the Court of Protection, said: "For the last six years accredited media have been able to attend Family Court cases and have been better informed about the work of the Family Court as a result. It is logical to look at extending this greater transparency to the Court of Protection, provided the right balance can be struck to safeguard the privacy of people who lack capacity to make their own decisions."

Mr Justice Charles, Vice President of the Court of Protection, said: "I have long supported this move towards more public hearings to promote a wider understanding of the work and approach of the Court of Protection and improve its performance and that of those who appear in it. I am aware that others hold different views on whether hearings should generally be in public and hope that the pilot will provide useful evidence to weigh the rival arguments."

A new Practice Direction for the Transparency Pilot has been introduced which supplements Part 13 of the Court of Protection Rules 2007. Where the pilot scheme applies, the Court will ordinarily make an order that any attended hearing shall be in public; and in the same order, impose restrictions in relation to the publication of information about the proceedings. The court may decide not to make a Pilot Order if it appears to the court that there is good reason for not making the order, but will consider whether it would be appropriate instead to make an order for a part only of the hearing to be held in public or excluding any persons, or class of persons from the hearing, or from such part of the hearing as is held in public.

If the court decides not to make a Pilot Order, the reasons for this are to be set out and recorded. Every judge who decides on an application or on his or her own motion not to make a Pilot Order is to give a judgment setting out the reasons why he or she did so and who took part in any application that, or the consideration of whether, a Pilot Order should not be made. The Judge will be invited to send a copy of that judgment or details of when it was given so that it can be transcribed or an explanation why one has not been given to the Vice President of the Court of Protection.

An area which appears somewhat unclear to me at this time is the Transparency Pilot Scheme and the ‘interface’ between the Family Court and the Court of Protection.

When considering whether a child who has lifelong disabilities who is subject to Children Act proceedings and who is approaching the age of 18 should be subject to proceedings in the Family Court or the Court of Protection, the key question is whether the child's welfare would be better protected within the Court of Protection - B (A Local Authority) v AM [2010] EWHC 3802 (Fam).

By Section 2(5) of the Mental Capacity Act 2005, the Court may not exercise jurisdiction under this Act, in respect of any person under the age of 16. Where a person is aged over 16, jurisdiction is engaged where a person lacks capacity and in accordance with that person's best interests. On 1 October 2007, the Mental Capacity Act 2005 Transfer of Proceedings Order, SI 2007/1899 came into force. Article 3 relates to 'Transfers from a Court having jurisdiction under the Children Act to the Court of Protection’:

'1)  This Article applies to any proceedings in a Court having jurisdiction under the Children Act which relate to a person under 18.

2)  A Court having jurisdiction under the Children Act may direct the transfer of the whole or part of the proceedings to the Court of Protection where it considers in all the circumstances it is just and convenient to transfer the proceedings.

3)  In making a determination, the Court having jurisdiction under the Children Act must have regard to,

a) Whether the proceedings should be heard together with other proceedings that are pending in the Court of Protection,

b) Whether any order that may be made by the Court of Protection is likely to be a more appropriate way of dealing with the proceedings,

c) the extent to which any order made as respects a person who lacks capacity is likely to continue to have effect when that person reaches 18 and,

d) Any other matters that the Court considers relevant.

4)  A Court having jurisdiction under the Children Act,

a) May exercise the power to make an order under paragraph 2 on an application or on its own initiative and,

b) where it orders a transfer it must give reasons for its decisions.

5)  Any proceedings transferred under this Article are,

a) to be treated for all purposes as if they were proceedings under the Mental Capacity Act, 2005 which had been started in the Court of Protection and,

b) are to be dealt with after the transfer in accordance with directions given by the Court of Protection.'

In B (A Local Authority) v AM, Hedley J considered the matters that the Court should take into account in deciding whether it should exercise the Article 3 powers:

“One, is the child over 16? Otherwise of course, there is no power. Two, does the child manifestly lack capacity in respect of the principal decisions which are to be made in the Children Act proceedings? Three, are the disabilities which give rise to lack of capacity lifelong or at least long-term? Four, can the decisions which arise in respect of the child's welfare all be taken and all issues resolved during the child's minority? Five, does the Court of Protection have powers or procedures more appropriate to the resolution of outstanding issues than are available under the Children Act? Six, can the child's welfare needs be fully met by the exercise of Court of Protection powers?” (Paragraph 28).

Hedley J noted that whilst the questions identified were intended to put some flesh on the Article 3(3) provisions, there will no doubt be other issues that will arise in different cases.

I have recently been involved in a case where there were family proceedings in respect of four children, the eldest of which, who had complex health needs, turned 17 during the proceedings. The matter in respect of the eldest child was transferred to the Court of Protection upon her turning 17. The Final Hearing in the Children Act proceedings, in respect of the elder child’s siblings, took place prior to a Court of Protection Hearing taking place post-commencement of the Pilot. Therefore, for my particular case, it was rather a ‘moot’ point but concern was raised about private information from the Children Act proceedings potentially being made public through the ‘connected’ Court of Protection Proceedings. It seems that this is a possible area of contention and an area for consideration by the Pilot. As more consideration is given to the Pilot, further information and thought will unfold, but this is just one issue that clearly needs to be considered.

Sabrina Polak is a barrister at New Court Chambers.