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Family Law

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Nuffield Foundation , 28 APR 2015

Greater transparency needed in the Court of Protection, claims report

Greater transparency needed in the Court of Protection, claims report
Researchers at the School of Law and Politics at Cardiff University have published a report which recommends an overhaul in the way that the Court of Protection currently works with the media in England and Wales. The report, funded by the Nuffield Foundation, is a result of a round table discussion which took place in September 2014.

The Court of Protection makes decisions about the care and treatment of people who lack mental capacity with conditions like dementia, learning disabilities and mental health problems. These often encompass socially and politically sensitive issues. There are restrictions on the ways that Court of Protection cases are reported by the media. Restrictions are necessary to protect privacy, but current processes are far from ideal. Therefore the report seeks to address the ways that those involved in such cases can be protected, but issues raised within the cases can be openly discussed by the media if newsworthy.

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In September 2014, a round table discussion took place to discuss this problem, between researchers at Cardiff University and members of the judiciary, Court of Protection lawyers, media lawyers, journalists, civil servants and other researchers, all of whom have experience of working on Court of Protection welfare cases. The resulting report, written by Lucy Series, Phil Fennel, Julie Doughty and Luke Clements, makes a number of recommendations on how transparency within the Court of Protection can be improved upon.

Amongst the recommendations, the report proposes that a rule change takes place to permit the media to attend important welfare hearings such as serious medical treatment cases. At present the media are first required to apply to attend Court of Protection hearings, which can be costly. By routinely allowing them to attend hearings, the report proposes a mirroring of the practice currently applied in the Family Court system. The report also recommends that the system for informing the media of important Court of Protection cases be improved and that there is a need for greater legal clarity on when parties and legal representatives can lawfully inform the media about a case.

Following the publication of the report, Lucy Series, Research Associate said:

'All participants expressed support for the principle of "open justice". Media reporting on Court of Protection cases, and the publication of judgments, were important for several reasons: to enhance public understanding of the Court of Protection's work; to protect against miscarriages of justice; and to promote public confidence in the court. Open and accessible judgments were also said to be important for access to justice for litigants in person who might not have access to law reports or legal advice.'

The report, Transparency in the Court of Protection: Report on a Roundtable, is available to download here.
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