The Court of Protection – the way forward?

As well as being President of the Family Division I am also President of the Court of Protection. I am very conscious that the enormous process of ongoing reform of the family justice system has meant that I have not yet had as much time as I should like to focus on the Court of Protection. This will shortly change, so this is an opportune moment to set out my preliminary thinking on the way forward.

Charles J has done sterling work in identifying ways in which the processes and work of the Court of Protection can be improved. The Report of the ad hoc Court of Protection Rules Committee which he jointly chaired with Proudman J still remains in part to be implemented although accepted by my predecessor Sir Mark Potter P. I am well aware of the calls that I press forward with implementation of those and other necessary reforms. I intend to do so. One recommendation in particular (number 10, that ‘A Committee should be established to review and make recommendations relating to the procedure and practice of the Court of Protection') is now an urgent priority. I shall welcome and value suggestions as to the constitution and membership of such a committee.

As part of a re-organisation and enhancement of the London estate, the Court of Protection will be moving in the autumn from the Thomas More building in the RCJ complex to the nearby First Avenue House, the current home of the Principal Registry of the Family Division, soon to re-emerge as the Central Family Court. This will give the Court of Protection and its users improved accommodation and facilities.

I want to explore ways in which to make better use of our ‘ticketed' Court of Protection judges, in particular the circuit judges, as part of a wider project to see whether more Court of Protection work – especially the personal welfare work – cannot be dealt with out of London. Judging from what I have heard at many conferences, users of the Court of Protection, both lay and professional, would welcome such a move. I shall be interested to hear views.

Related to this is the question of whether it is sensible to continue with the present system which requires every application to the Court of Protection to be issued in London. I am sceptical as to whether there are any arguments of either principle or pragmatism adequate to justify a system which at present requires the constant movement of court files around the country and the keeping of duplicate files.

I have left until last what is probably the most burning and important issue: transparency.

I am, as you will know, very concerned about this. I repeat what I said earlier this year, [2012] Fam Law 548:

‘I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.'

As I have made clear on previous occasions, that applies just as much to the issue of transparency in the Court of Protection.

On 12 July 2013 I issued, for comment and discussion, Draft Practice Guidance: ‘Transparency in the Family Courts and the Court of Protection – Publication of Judgments' [2013] Fam Law 981 (reproduced on p 315 of this issue). I would welcome your views on the draft guidance, which should be sent to my Legal Secretary, Penelope Langdon (). I indicated that I intended to bring about an ‘immediate and significant change in practice' in relation to the publication of judgments in family courts and the Court of Protection. I said:

‘In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name.'

I continued:

‘Very similar issues arise in both the Family Court (as it will be from April 2014) and the Court of Protection in relation to the need to protect the personal privacy of children and vulnerable adults. The applicable rules differ, however, and this is something that needs attention. My starting point is that so far as possible the same rules and principles should apply in both the family courts (in due course the Family Court) and the Court of Protection.'

I said that I proposed to adopt an incremental approach.

Further developments since then can be found in ‘View from the President's chambers: the process of reform: latest developments' in October [2013] Fam Law 1260. In particular, can I draw your attention to the judgment I handed down on 5 September 2013 in Re J (A Child) [2013] EWHC 2694 (Fam), [2013] 2 FLR (forthcoming).

One striking difference in the rules relates to the media's ability to attend hearings. In the family courts the starting point, since the reforms introduced in April 2009, is that accredited journalists have a right to attend most family court hearings (including hearings of cases dealing with what in the Court of Protection would be called personal welfare) unless proper grounds for excluding them can be established on narrowly defined grounds. In the Court of Protection, in contrast, the effect of r 90 is that the media always require the permission of the court to be present. Why? Again, I shall welcome and value views. But I have to say that I am inclined to think that the arguments in favour of aligning practice on this point in the Court of Protection with the practice of the family courts are compelling.

We must be open to the world – much more open than at present – in what we do in the Court of Protection. As the great Brandeis once famously remarked, sunlight is the best disinfectant. I respectfully agree.

Sir James Munby President of the Court of Protection