Remote observations of hearings: new framework

With effect from 28 June 2022, a new framework governing remote access by non-participants to proceedings was introduced by the Police, Crime, Sentencing and Courts Act 2022 – introducing new sections 85A and 85B into the Courts Act 2003 – and the Remote Observation and Recording  (Courts  and  Tribunals)  Regulations 2022

This framework – which applies to all courts and tribunals – is explained in the Practice Guidance issued by the Lord Chief Justice and the Senior President of Tribunals on 28 June 2022.  It applies whether the court is sitting in person, but enabling remote observation, or if the court is, itself, sitting remotely. In broad terms, its effect is to:

  • provide judges with the power to make directions to enable members of the public to observe proceedings remotely (by video or audio);
  • set down a series of considerations for judges to apply when deciding whether to make such a direction;
  • make it (by the Courts Act 2003 s85B) a criminal offence to make an unauthorised recording during any such remote observation.

In respect of the Court of Protection, the introduction of the new framework places matters on a clearer statutory footing than previously; whilst judges of the court had grappled with the problem of recording of remote observations (see Re TA (recording of hearings; communication with court office) [2021] EWCOP 3), they had been doing so in circumstances where the powers to prevent recording had to be derived somewhat indirectly.

It is likely that the Remote Hearings Guidance issued by the Vice-President, Hayden J, in March 2020 will be updated in due course to address the provisions of this new framework, not least as the provisions of the template order attached to that guidance now require updating to reflect that there is no need now to injunct observers from making unauthorised recordings, as this is covered by the offence under Courts Act s85B.

It should be noted that, in the Court of Protection, this new framework alongside, rather than replacing, the provisions of the Transparency Practice Direction.   The Transparency PD provides the mechanism by which the court decides whether the matter should be held in public, and subject to what limitations as to identification of P.    The new framework (and guidance) provides the mechanism by which non-participants may be given remote access to the hearing, whether that hearing is being held in person or online/by telephone. 

Judicial visits to P – new guidance

Following the case of AH, in which the Court of Appeal expressed the “pressing need” for guidance in relation to judicial visits, the Vice-President of the Court of Protection has issued guidance on 10 February about such visits. In it, he sets out principles to apply and practicalities required to give effect to those principles. He has also taken the opportunity to re-issue (and, indeed, to get onto Bailii) guidance previously issued by the former Vice-President in 2016, which covers a wider range issues relating to participation of P and vulnerable persons in the Court of Protection. The guidance can be found here.

Court of Protection Handbook Quarterly Update

The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. It includes coverage of the decision in JB – the Supreme Court takes on capacity – and of AH – judicial visits, as well as other significant developments since November 2021. We have also updated our precedent letter of instruction to an expert to report upon capacity in light of the Supreme Court’s decision in JB.

Court of Protection Quarterly Update – November 2021

The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. We are also working on publishing the update in hard copy as a one-off inter-edition bonus – work on the next edition cannot properly start until we have more detail about the revisions to the MCA Code of Practice and what is happening with the Liberty Protection Safeguards.

Court fees increase from 30 September 2021

Following the consultation on increasing selected court fees and Help with Fees income thresholds by inflation, the Government response to the consultation has been published and is available here.

The SI to effect these changes has been laid today, 6 September 2021, and the changes will come into effect on 30 September 2021. Any questions regarding this consultation response or the SI can be addressed to the Ministry of Justice Fees Policy Team (mojfeespolicy@justice.gov.uk).

The position in respect of Court of Protection fees is as follows:

Court of Protection Handbook Quarterly Update – May 2021


The quarterly online update to the Court of Protection Handbook is now available, covering such cases as Re P (Discharge of Party) on when the court can discharge a party of its own motion, Re MN on the limited steps that the court will consider taking under s.48, and Re P (another one) on the ‘white leopard’ of the situation where a person is said to lack capacity to make a medical treatment decision but to have capacity to conduct proceedings about whether to undergo the procedure.

CoP e-filing for deprivation of liberty cases

HMCTS have announced that:

To further support digital working within the Court of Protection we are starting to use electronic filing of documents (aka e-filing) for all Deprivation of Liberty cases. This involves the introduction of an automated system where correspondence and attachments received by email are placed directly onto the court’s digital files (e-files).
As well as providing the many general efficiencies of increased digital working, the use of the e-filing system will enable faster allocation of information to court files to ensure that judiciary and court administrators have immediate access to information within minutes of it being received by email.
When will the changes happen?
The e-filing system is being introduced at the Court of Protection to manage Deprivation of Liberty cases submitted to First Avenue House (FAH), London on/around the end of March 2021

For more details, see the update here.

Official Solicitor Practice Notes

Two Practice Notes have been published by the Official Solicitor, Sarah Castle, setting out important practicalities relating the appointment of the Official Solicitor as litigation friend of the person concerned (“P”) in the Court of Protection and requests by the court to the Official Solicitor to act as, or appoint counsel to act as an advocate to the court. Both are dated 3 February 2021. One note deals with health and welfare proceedings, and the other with property and affairs proceedings.

This serves also as a useful opportunity to remind people of the resources available on the Court of Protection Handbook website, including the following:

A basic guide to the Court of Protection written by Victoria Butler-Cole QC, Sarah Castle, Jakki Cowley and Alex Ruck Keene, which can be found here.

A glossary of words and phrases used in the Court of Protection (by the same authors), which can be found here.

A guide by Jakki Cowley called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?,” which can be found here.

An easy read guide, focusing on participation and written by Dr Jaime Lindsey of the University of Essex, which can be found here.

guide to remote hearings has been produced by the Transparency Project.  It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection.