For nearly five years, The Independent has been campaigning for greater access to the Court of Protection, in which judges make decisions on behalf of those deemed incapable of running their own affairs. Why? Because a central principle in British law is open justice. The right to a dignified private life for society’s most vulnerable must certainly be protected. But a default position that hearings in which they are involved be conducted behind closed doors sits uneasily with the notions of freedom and transparency upon which our state rests.
There have been advances in recent years. Successive presidents of the CoP have acknowledged the need for the media – and thus the public – to be more acquainted with a highly sensitive part of our system of justice, where decisions range from care arrangements to family access to the disposal of assets.
The test case was in 2010, when the Court of Appeal ruled in favour of media access to hearings about whether Derek Paravicini, a blind and profoundly autistic pianist, should continue to perform. Since then, access has been granted in a handful of other cases. But it is still only in instances involving invasive medical treatment or a life-and-death decision – the right of a hunger striker to die, say – that the presumption is for open proceedings. And even then, the press and public often do not hear of them until the case has already been heard.
Sir James Munby, the current CoP president, has worked tirelessly to resolve the issue. In draft guidance for judges published last summer, he explicitly stressed the need for “greater transparency in order to improve public understanding and confidence”. He also resolved that, as far as is possible, the CoP should be governed by the same rules that apply to the family courts, of which he is also the president. In a written ruling on a long-running case earlier this week, Sir James put the theory into practice; the judgment will be public, he says, but the family will not be named.
For all the – welcome – steps forward, there is still much to be done. It can only be hoped that Sir James’s second tranche of guidance, expected imminently, will go further, giving accredited reporters automatic access to the CoP just as they have in the family courts (with the usual proviso that publication is subject to negotiation with the presiding judge).
Nor can the evolution of the CoP end there. As we report today, leading lawyers are warning of a “marked variation” in judges’ willingness to talk directly to those who are the subject of proceedings as well as to the official solicitor representing their interests. Not only do such concerns raise the possibility of human rights violations, but there are also all-important questions of consistency to be considered.
The Court of Protection rules on some of the most difficult, delicate and contested questions of modern life, and makes decisions that may define the course and circumstances of a person’s life. To ensure public confidence in so powerful an institution, its procedures and practices must be standardised and the justice it dispenses must be as open as it can be. We have made progress, but there is further to go.