Let’s talk about court process: part 3 – hearings

In case you missed them, parts 1 and 2 of my posts about court process follow the same case study and you might want to go back to follow the story through.

But now we get to the juicy bit that most people want to know about: court hearings.

Don’t get too excited though, or you’ll set yourself up for disappointment. As I have had to explain to a number of new starters over the years, thinking about the Court of Protection as litigation isn’t very helpful. It is much better to think of it as judge-led mediation. The judges want parties to reach agreement. They actively encourage it. Indeed, on more than one occasion I have been asked by the judge “Why weren’t you able to agree this before today?”

But anyway, we’ve followed all of the directions set out in the last order. We’ve had a round table meeting, with the Official Solicitor’s representative and P’s mother. But we can’t reach agreement. Mum does not accept that P is happier in the supported living placement. The Official Solicitor wants more information about what a care package could look like at home before they’ll accept any final orders. The local authority is, by this point (let’s be honest) fairly fed up of going over the same ground in multiple witness statements and considers that it has already as much detail as possible about the hypothetical option of going home, when it hasn’t been able to identify a provider that will work with P and his mother at home.

So we’re off to court, because we couldn’t agree what happens next.

Different local authorities have different processes here. Many will instruct a barrister to do the hearing, especially if it is contested (as opposed to when the parties are agreed, but couldn’t get to that point in time for the court to call off the hearing). If you are not familiar with the difference between barristers and solicitors, you aren’t the only one. But essentially, barristers have different qualifications and are more specialised in advocacy and preparing written arguments etc. Solicitors like me have to do qualifications for different skills, but are still able to do advocacy in certain courts (and can do further qualifications to do advocacy in more courts).

But I digress.

My authority don’t tend to use barristers unless things are really complicated. The team and I are all relatively confident advocates, and trying to get authority for barristers’ costs is honestly more hassle than it is worth. The Official Solicitor tends to use barristers though.

So I arrive at court, usually at least an hour early as directed in the order. I usually request that the social worker or their manager comes too, and I’ll arrange where I am going to meet them, especially if I’ve not met them face to face before. There was also one occasion where a social worker I had met didn’t recognise me, because I hadn’t warned her I had dyed my hair. “You’re usually blonde!” she exclaimed “I was panicking because I couldn’t find you”.

If we can, we’ll find ourselves a little consultation room to sit in, and go over what it is we want to achieve which, in this case, is an end to the proceedings as quickly as possible.

P’s mother will show up too. And the social worker is always a lovely people person who invites her to come wait with us. We stop talking shop at that point, and switch to idle small talk.

The solicitor instructed on behalf of P also arrives, with the barrister they’ve instructed. They’ll go talk in a different room about what they want to achieve today too.

At some point, they’ll come knock on our door and we’ll have a discussion in one room to see if we can now reach agreement, or at least narrow the issues. Barrister will do most of the talking, asking mum and social worker questions. I’ll jump in if the social worker is floundering answering a question, or if barrister is missing the point, because I’m nice like that.

None of this questionning should be aimed at trying to trip anyone up, or catch people out. But there’s always one or two barristers, or solicitors, who take a different approach. One example comes to mind where the barrister spent 20 minutes telling us what they wanted. I got 3 words out, then he started again. So I said “I don’t think we’re going to achieve anything from pre-hearing discussions if you’re not interested in hearing our position” and the social worker and I left.

So the conversation continues and the social worker quite clearly states, as she has done in her witness statements repeatedly “We do not have a provider available to provide a care package. We have contacted all of the providers in the area. They all either said they couldn’t meet needs, or didn’t have capacity. Some said both. We’ve been looking for 9 months and nothing has changed.”

This changes things a bit. Because the solicitor and barrister know that the judge can only choose from available options. The options on the table are to remain where he is, or return home with only mum to support him. Mum says she’s willing to do that. Social worker, ever so professionally, explains to mum that she doesn’t think that will work, reminding mum of the difficulties she had last time he was home. How he had lashed out, wanted to leave etc. Mum’s not accepting this though. But the solicitor and barrister look thoughtful, and go back to their room for a private discussion.

We’ll keep making small talk with mum. She goes to get a cup of tea, and I take the opportunity to tell social worker what a good job she’s done, and that I expect that the solicitor and barrister are coming round to our point of view. Mum comes back, and we wait.

We make more small talk, and we wait.

Because judges don’t wait for you, you wait for judges.

The judge’s clerk will pop her head into the room to check the matter we are there for (judges usually have multiple cases each day) and asks us to fill in an attendance form with our names and roles on. He tells us the judge is dealing with one more matter, but we are next.

I remind everyone to turn their phones off, or at least onto silent. I’ll brief social worker and mum on court etiquette like ‘don’t talk over anyone, especially not the judge’.

The clerk reappears and asks if we’re ready. We are, but he comes back to say that solicitor and barrister for P are on the phone with their Official Solicitor case worker, so the judge is going to take in a different matter. He’ll be back.

Guess what? We wait some more.

But the thing is, when we go in, everything is a little bit anti-climactic. The judge isn’t wearing her wig and gown, for one. Just a snappy suit. Depending on the judge, you might not even be in the court room, just the judge’s chambers (which is a posh word for office). She sits at her desk, and we sit in front of her, around a table.

Today she’s in the full court room though. So the usher takes us in, and barrister and I stage direct everyone to sit in the right place. Social worker sits behind me, so if the judge asks me a question I haven’t anticipated, she can pass me a note or whisper to me.

There’s a knock on the door to the judge’s room. The usher (as opposed to Usher the musician) calls ‘All rise’ (I start singing Blue in my head, and yes I’m revealing my age a bit now) and we all stand up as the judge comes in and takes her seat. We do a weird little bow, then we all sit down but barrister, who wants to have the first word. We are the applicant, so he shouldn’t get the first word, but it isn’t worth my time to argue the point.

In the vast majority of cases, the social worker doesn’t do any talking in the hearing. The barrister explains the Official Solicitor’s position very clearly, for the benefit of mum. I stand up and explain that there is nothing more that we can say, there are no domiciliary care providers available and we don’t think going home without a formal care package is in P’s best interests. The judge says she has seen that in our evidence, and asks the barrister if he now accepts this. Reluctantly, he says he does.

Now the judge asks mum if she has anything she wants to say. She says she just wants her son home with her. The judge is very nice about it but explains she can’t make the local authority put in place a care package that doesn’t exist. It looks like we’re moving towards a conclusion and then mum, who has never mentioned this in the 9 months the proceedings have been going on, now takes a parting shot, remarking that nosey Julie from down the road gets money from the Council and employs a personal assistant for her son. Could she do that?

Social worker and I exchange a look that conveys words we couldn’t possibly speak in a court room. I stand up, to do some damage control but the barrister beats me to it.

“The local authority hasn’t considered whether a direct payment is appropriate” he announces. It sounds smug to me, but I might just be frustrated. The judge turns to me, and I explain that mum is able to request a direct payment on P’s behalf. I repeat that there are no local providers and that employing somebody is a far more serious undertaking than mum appears to grasp. But I have to concede that we can’t prejudge what the decision about the appropriateness of this would be.

So we agree timescales for that to be explored, the judge gives us a date for the next hearing. Then she stands, we stand too, we bow, she leaves. Then barrister and I will talk arrangements for the draft order we’ll need to send for approval by the end of the day. And off we all go.

NB 1 it is possible that social workers, family members and other professionals will be called to give evidence, if a dispute continues. You’ll usually get warning before that though. For example, in this fictional case, if the Official Solicitor had still taken issue with what the social worker was saying, then what the judge is likely to have done, is make directions for a longer hearing in a few weeks time. In urgent situations, you can be called up on the day, but usually the judge won’t have time to deal with it on the day and will set a future date.

If you are called to give evidence, then you will have to stand (or sit) in the ‘witness box’ and swear an oath to tell the truth. There are a few versions of the oath to allow for different religious beliefs, but either the clerk will say it for you to repeat, or there’ll be a card for you to read from. You won’t need to put your hand on a bible though.

You won’t be expected to remember everything you’ve said in statements, there will be a copy of the whole bundle in front of you that you can refer to during your evidence and the barrister/solicitor/judge asking the questions will tell you which pages to turn to, and you can take your time to read it.

You also won’t be expected to repeat things you’ve said in your statements. Your witness statement will count as ‘evidence in chief’ i.e. the bit where your lawyer asks you to say what happened in your own words. You’ll go straight to ‘cross examination’ where the lawyer(s) for the other party(ies) will ask you questions to clarify what you have said, ask if you have considered other evidence in the bundle etc. This can amount to a good grilling, don’t get me wrong, but your lawyer, or the judge, will step in if this starts to look like an episode of Law and Order. Usually, it is just a bit of professional challenge that you should be used to, just with a judge watching you to make you feel a bit more nervous.

Your lawyer can’t coach you on what to say, but they can give you some idea of the questions that might be asked. And honestly, the most important tips I can give are:

– be clear, and if you think you’ve been misunderstood, ask to clarify it, and no one will stop you

– don’t waffle. If the question is ‘what options have you explored?’ then list the options, don’t recount your entire best interests assessment

– take a minute to think before you speak, and read over the bits you are directed to in the bundle before answering. No one will pressure you to answer quickly, if you need time to order your thoughts

– no matter how annoying the person questionning you is, especially if it’s a family member who doesn’t have a solicitor, do not snap at them. You want to some across as professional and reasonable at all times

– if you don’t understand the question, then say so, and the person asking it will reword it for you

NB 2 dress smartly for court. You don’t need to be in a suit, but formal office wear is recommended. Even if you are just sitting behind the lawyers, the judge can still see you and you want to come across as professional

NB 3 at the moment, hearings are largely taking place remotely by either phone or video call. This doesn’t change much, to be honest, except you can be in your pyjamas if the hearing is by phone, if you want (who does that, certainly not me!). Also, you’ll have to email or text the lawyer, rather than whispering or passing notes. All the pre-hearing discussions can still take place, this is just done using phone or video too.

Hearings where full evidence is needed are being put off unless they are urgent though, to avoid unnecessary complications.

You’ll be asked to give the details you want to be contacted on in advance of the hearing, and you need to be by your phone/computer at the specified time (even if the judge is running late) and please make sure it is charged up and your signal is good.

The final post in this series will explore bringing proceedings to an end.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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