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Reform of the Court of Protection - The President's address

Date:16 OCT 2013

Jordans was honoured to welcome Sir James Munby, the President of the Family Division and the Court of Protection to speak at the annual Court of Protection Practice Conference on 14 October 2013.

The President began his address by stating that the recent reforms to the family court and statutory framework had somewhat taken him away from his dual role as President of the Court of Protection (CoP).  With the family reforms nearing conclusion however, the President was turning his attention to the changes required in the CoP.  The President praised the work of Mr Justice Charles and Mrs Justice Proudman and their calls for change, yet to be implemented.

The President explained that he intends to establish a committee urgently to deal with the reforms and he hoped to receive recommendations for members and any views would be welcome.

The CoP is on the move to First Avenue House, currently home to the Principal Registry of the Family Division (which will change to the Central Family Court in April 2014). The President hopes that the two courts being located under the same roof will promote cross fertilisation of ideas between the court users and staff.

The President went on to discuss his thoughts for reform of CoP in respect of personal welfare matters.  He would like more use to be made of Circuit judges who hold CoP tickets as there is a disproportionate use of High Court judges for CoP personal welfare matters. Further, the President hopes for localisation of matters, with the judges going to the people rather than the people going to the judges.  He feels there should be a number of regional offices complete with their own CoP seals, which can carry out the work rather than all files having to be sent to London.

The President is concerned that there is no CoP equivalent to the Public Law Outline (PLO).  There are certain similarities in the forensic process of public law cases and the CoP; the need for judicial continuity, robust case management and clear principles.  The PLO changed the way cases are prepared, for example a drastic slimming down of documents and their length and content, as well as dramatically reducing the time it takes to reach a final hearing. The President feels that too many CoP personal welfare hearings currently display the vices that were apparent in child protection cases and there are lessons to be learnt from this.

The President's most pressing concern was the issue of transparency.  He wants to see increased transparency in the CoP as well as the family court, including the publication of many more judgments.  The amount of judgments available from the CoP is distressingly small, although the consolidated edition and regular publication of the Court of Protection Law Reports is extremely useful. The rules in relation to press attendance and reporting are different in the CoP and date from 2007 whereas the family rules date from 2010.  Currently, accredited media representatives can attend almost any family hearing, but it is the opposite in the CoP.  The President does not see the logic in that.  He feels there should be a presumptive right of the media to attend the CoP as in family law.  He asks: how can the public have confidence in a system that has different approaches?  The President intends to apply an incremental approach but fundamentally believes both the Family Court and Court of Protection must be open to the world and quoted Justice Louis Brandeis ‘sunlight is the best disinfectant'.  The President in closing reiterated that it was vital for him to have the views from others on this point and he would value opposing thoughts and comments.  Ultimately, the strong message was that the pace of change in the CoP will accelerate.