Independent Wins ‘Hugely Important’ Victory For Vulnerable

(Independent) – A CONTROVERSIAL COURT which hears all of its cases in secret will open its doors to the media from today, following a successful legal challenge by The Independent which was immediately hailed as a “hugely important” victory for transparency.

Until now, all cases heard at the Court of Protection – which makes decisions about people incapable of managing their own affairs, including those with Alzheimer’s disease, brain-damaged soldiers and others with limited mental capacity – have been held in private.

But yesterday, three of the country’s most senior judges cleared the way for journalists to attend hearings provided they had “good reason” to do so. The Lord Chief Justice Sir Igor Judge, Master of the Rolls, Lord Neuberger, and Sir Mark Potter, the President of the Family Division and the Court of Protection, ruled that the presence of selected journalists “will ensure that matters of legitimate public interest may be drawn to the attention of the judge”. The judgement, handed down at the Court of Appeal, sets an important precedent which opens up future cases to media scrutiny.

Over the past six months The Independent has been in touch with a number of people who say that the court has treated them unfairly. They include:

  • A woman who was forcibly separated from her adopted son, who suffers from severe epilepsy and ME. The court ruled in favour of the local Primary Care Trust, which claimed she was a bad influence and that her son should be removed to a specialist care home.
  • A woman who was prevented from caring for her elderly, blind aunt, following a dispute with her nursing home and a local authority over a number of care lapses. Her aunt died four months later.
  • A woman whose access to her elderly sister, who suffers from multiple sclerosis, was restricted to one hour every fortnight after she complained to her local authority that the care home was not equipped to meet her needs.

In each case the facts have proved extremely difficult to establish, because the media have been prevented from attending the hearings.

Yesterday’s ruling stated: “[The judge] is not qualified to determine what is or may be of interest to the public: that is the function of the media. In any event, it would be an inappropriate exercise of a judge’s responsibility… Therefore, while the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which may be of legitimate interest to the public.”

Dan Tench, a media lawyer with Olswang LLP, said: “This could have significant consequences in terms of freedom of information and allowing access for the media to situations from which previously they have been barred. From now on, if the Government wants to restrict such access, it will at the very least have to have a good reason for doing so.”

The change in the law was prompted by a test case brought by The Independent and supported by other media organisations. It centres around a severely disabled but gifted young man, whose talents have brought him international fame. Lawyers for this newspaper argued that there was a strong public interest in the media being given access to “appropriate” cases in the interests of open justice.

The court has so far taken control of more than £3.2bn of assets, acting in cases where people do not leave a lasting power of attorney which hands control of their assets to family or friends.

In November, the Justice Secretary Jack Straw ordered a review into the workings of the court, after it emerged that it had received more than 1,200 complaints from members of the public in its first 18 months of operation.

“It is valuable for the public to be fully informed of what happens in a court in which the overwhelming majority of cases are … to be conducted in private,” the judges concluded. “That is a particularly significant point in the light of the concerns which have been expressed about the new Court of Protection.”

A Ministry of Justice spokesperson said: “We have always said that it is open to the press to make an application to attend the court on a case-by-case basis.”

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One Response

  1. It would be good if this judgement applied to the Family Court in it’s entirety.

    Some of the worst miscarriages of justice have been carried out by social workers, who escape full public scrutiny into their actions, in these courts.

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