¹ Wye Valley NHS Trust v B [2015] EWCOP 60 at [21] and [37].

² Ibid, at [18].

³ A Local Authority v AB [2016] EWCOP 41, at [5].

⁴ Re CD [2015] EWCOP 74 at [31] and Re M [2013] EWCOP 3456, at [42].

⁵ Court of Protection Amendment Rules 2015, SI 2015/548, inserting a new r 3A into the Court of Protection Rules 2007.

⁶ See A Daly making this point eloquently in the case of children in Children, Autonomy and the Courts: Beyond the Right to be Heard (Brill, 2018) ch 4, p 199Google Scholar.

⁷ Rather than a broader view of participation which includes what might be called ‘indirect engagement’ or engagement at a distance, eg ‘representation’ of P through lawyers, intermediaries, etc: see eg the excellent report by L Series et al The Participation of P in Welfare Cases in the Court of Protection (2017) (available at http://sites.cardiff.ac.uk/wccop/new-research-report-the-participation-of-p-in-welfare-cases-in-the-court-of-protection/), which examines many different elements of ‘participation’.

⁸ Wexler, D Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Carolina Academic Press, 1991)Google Scholar and Wexler, D and Winick, BJ Judging in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Carolina Academic Press, 1996)Google Scholar.

⁹ Freckleton, I ‘Death investigation, the coroner and therapeutic jurisprudence’ (2007) 15 Journal of Law and Medicine 1Google Scholar.

¹⁰ Ronner, A ‘Songs of voice, validation and voluntary participation’ (2002) 71 Uni Cin L Rev 89 at 95Google Scholar and Ronner, A ‘The learned helpless lawyer: clinical legal education and therapeutic jurisprudence as antidotes to Bartleby Syndrome’ (2008) 24 Touro L Rev 601 at 628Google Scholar.

¹¹ Burke, K ‘Just what made drug courts successful?’ (2008) 36 New England Journal on Criminal and Civil Confinement 39 at 54Google Scholar.

¹² S Leben ‘Thoughts on the judge's written work’ (2014) published proceedings of American Judges Association conference, available at amjudges.org/conferences/2014Annual/ConferenceMaterials/ZQ-Leben-handout-for-AJA-2014.pdf (accessed 5 March 2019).

¹³ Parkinson, P and Cashmore, J ‘Judicial conversations with children’ in The Voice of a Child in Family Law Disputes (Oxford University Press, 2008) ch 7 at p 162CrossRefGoogle Scholar, and see also Caldwell, J ‘Common law judges and judicial interviewing’ (2011) 23 CFLQ 41Google Scholar.

¹⁴ Re W [2008] EWCA Civ 538 at [28]–[29].

¹⁵ Hunter, R ‘Close encounters of a judicial kind’ (2007) 19 CFLQ 204Google Scholar.

¹⁶ Wye Valley, above n 1, at [18].

¹⁷ Ibid.

¹⁸ L Series, Briefing Paper: The Participation of the Relevant Person in Court of Protection Proceedings (September 2014). In a later judgment from 2016, the ECtHR clearly placed a premium on the opportunity to be heard in person, compared to representation by others in fulfilment of these rights: see A N v Lithuania [2016] ECHR 462 at [90]: ‘… it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation’.

¹⁹ Ronner, above n 10.

²⁰ Freiberg, A ‘Therapeutic jurisprudence in Australia: paradigm shift or pragmatic incrementalism’ (2002) 20(2) Law in Context 6 at 16Google Scholar.

²¹ Raitt, F ‘Hearing children in family law proceedings: can judges make a difference?’ (2007) 19 CFLQ 204Google Scholar and Sir Nicholas Wilson ‘The ears of the child in family proceedings’ Hershman/Levy Memorial Lecture 2007, available at https://www.judiciary.uk/wp-content/uploads/2014/12/wilsonlj28062007.pdf (accessed 18 February 2019).

²² Eg Y County Council v ZZ [2012] EWCOP B34 at [3].

²³ A Local Authority v TZ [2013] EWCOP 2322 at [45].

²⁴ [2016] EWCOP 4 at [10].

²⁵ Ibid, at [53].

²⁶ Norfolk CC v PB [2014] EWCOP 14 at [44] and [45].

²⁷ Re CD [2015] EWCOP 74 at [31].

²⁸ [2014] EWCOP 20 at [41]: her appeal was unsuccessful, although the appeal judgment recognised that the reference to this evidence was ‘undoubtedly… brief’.

²⁹ Ronner (2002), above n 10, at 95.

³⁰ On the need for ‘influence’ see Laura Lundy's work on Art 12 of the CRC ‘Voice is not enough’ (2007) 33(6) British Educational Research Journal 927 at 933, although in the context of the child's ‘right to be heard’ rather than TJ.

³¹ Winick, BJ ‘Competency to consent’ (1991) 28 Houston Law Review 15 at 46–53Google Scholar.

³² In particular the seminal work of Tyler, T and Lind, E The Social Psychology of Procedural Justice (Springer, 1988)Google Scholar. On the relationship between TJ and procedural justice see eg Wexler, D ‘Time for a robust reciprocal relationship between procedural justice and therapeutic jurisprudence’ (2007) 44 Court Review 78Google Scholar.

³³ Wye Valley, above n 1, at [18].

³⁴ Ibid.

³⁵ The concern with making P ‘feel’ that they are participating, echoes the guidance for judges meeting children where the purposes of such meetings are stated as being ‘to enable the child to gain some understanding of what is going on, and to be reassured that the judge has understood him/her’: Guidelines for Judges Meeting Children [2010] 2 FLR 1872 at [5].

³⁶ Wye Valley, above n 1, at [18].

³⁷ The therapeutic value of the CoP's work to families of P has been recognised in withdrawal of life sustaining treatment cases: Halliday, S et al. ‘An assessment of the court's role in withdrawing clinically assisted nutrition and hydration from patients in a permanent vegetative state’ (2015) 23(4) Med L Rev 556CrossRefGoogle Scholar.

³⁸ Wye Valley, above n 1, evidence of Dr Glover at [38].

³⁹ A Local Authority v AB, above n 3, at [49].

⁴⁰ Eg LBX v TT [2014] EWCOP 24 at [39] and Re AG [2015] EWCOP 78 at [26] adapting guidelines from Re W [2008] EWHC 1188 on when to hold finding of fact hearings.

⁴¹ Children Act 1989, s 1(3) and the MCA 2005, ss 1(5) and 4.

⁴² Children Act 1989, s 1(3)(a) and the MCA 2005, s 4(6).

⁴³ Eg see A Local Authority v AB, above n 3, at [6].

⁴⁴ See Legrand's, P work on legal transplanting in comparative law: ‘The impossibility of legal transplants’ (1997) 4 MJ 111Google Scholar and his reference at 112 to Watson, A Legal Transplants (University of Georgia Press, 2nd edn, 1993)Google Scholar.

⁴⁵ See also Art 11(2) of Brussels II Regulation ‘when applying Articles 12 and 13 of the 1980 Hague Convention it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity’.

⁴⁶ The child must be heard ‘either directly, or through a representative or appropriate body’ (Art 12).

⁴⁷ (2009) at [35], emphasis added. And see Thorpe LJ in Re G [2010] EWCA Civ 1232 at [15] preferring the judge to hear directly from the child ‘in carefully arranged conditions’. A meeting with the judge provides one means of offering this opportunity, but it may also be fulfilled by the child giving evidence in the case.

⁴⁸ Sir James Munby ‘Unheard voices’ (annual lecture of The Wales Observatory on Human Rights of Children and Young People, 2015), available at https://www.swansea.ac.uk/media/Sir-James-Munby-Annual-lecture-2015.pdf (accessed 18 February 2019).

⁴⁹ [2010] UKSC 12 at [22]. See also Re W (secure accommodation) [1994] 2 FLR 1092 per Ewbank J ‘… the court should always bear in mind that attendance in court is likely to be harmful to the child’ (emphasis added).

⁵⁰ Re W, above n 49, at [26]–[28] per Baroness Hale.

⁵¹ Followed in Re R (Children) which found in favour of the child who wished to give evidence being permitted to do so, but on the basis of a balancing exercise with no presumptive starting point: [2015] EWCA Civ 167. Cf P-S (Children) [2013] EWCA Civ 223 at [37].

⁵² Re W, above n 49, at [26].

⁵³ [2010] 2 FLR 1872. A wish to meet the judge should be communicated to the judge, but representations may be made as to whether this is appropriate. It should be noted that there is still resistance to judges meeting children without relevant training (see Hunter, above n 15, and P Tapp ‘Judges are humans too: conversation between the judge and a child as a means of giving effect to section 6 of the Care of Children Act 2004’ [1996] New Zealand Law Review 35), but exploring this issue is outside the scope of this paper.

⁵⁴ Eg MB v Surrey CC [2017] EWCOP B27 at [8]: ‘… the Court is the servant of the evidence that is provided by the parties’.

⁵⁵ Above n 53. These were supplemented by Guidelines in Relation to Children Giving Evidence in Family Proceedings in 2012.

⁵⁶ In the terms ‘it cannot be stressed too often that …’.

⁵⁷ At [5], emphasis added.

⁵⁸ Re KP [2014] EWCA Civ 554 at [50].

⁵⁹ Ibid, at [57].

⁶⁰ Ibid.

⁶¹ And see Baroness Hale's remark that Justice Parker was a ‘formidable cross-examiner … It cannot have been a pleasant experience for the child’: Are we nearly there yet? (Association of Lawyers for Children Conference, 2015) (p 13).

⁶² Above n 58, at [59].

⁶³ Although the Convention is not legally binding, the UK is a signatory which signals a commitment to developing our frameworks so as to better protect these important Convention rights: Birmingham City Council v Burnip [2012] EWCA Civ 629 at [19]–[22].

⁶⁴ M Perlin ‘Striking for the guardians and protectors of the mind’ (2013) Penn St L Rev 1159 at 1189.

⁶⁵ This analysis focuses on ‘health and welfare’ cases, rather than property and financial affairs cases, largely because the latter are dealt with very differently (direct engagement is even more rare) and are not easily compared with the health/welfare cases.

⁶⁶ Per Charles J in V v Associated Newspapers [2016] EWCOP 21 at [55].

⁶⁷ Ibid.

⁶⁸ [2014] EWCOP 20.

⁶⁹ See CC v KK [2012] EWCOP 2136, Re SB [2013] EWCOP 1417 and Re Z [2016] EWCOP 4, discussed in P Case ‘Negotiating domains of mental capacity: clinical judgment or judicial diagnosis?’ (2016) 16 MLI 174.

⁷⁰ MCA 2005, s 1(5).

⁷¹ MCA 2005, s 4(6).

⁷² The judge in the presence of the judge's clerk and a nurse.

⁷³ Above n 1, at [19].

⁷⁴ Eg Re A [2000] 1 FCR 193 and see M Donnelly ‘Best interests, patient participation and the Mental Capacity Act 2005’ (2009) 17 Med L Rev 1.

⁷⁵ Art 12(4).

⁷⁶ Winick, above n 31. See now the Mental Capacity (Amendment) Bill 2018, cl 8, amending s 4 to require ‘particular weight’ to P's wishes and feelings where they have been ascertained (despite much support for a presumption in favour of P's wishes and feelings determining the outcome: see A Ruck Keene ‘More presumptions please’ (2015) Elder LJ 293); Jackson, E ‘From doctor knows best to dignity’ (2018) 81 (2) MLR 247CrossRefGoogle Scholar, which engages in some detail with Wye Valley.

⁷⁷ [2013] UKSC 67 at [45].

⁷⁸ Eg in Wye Valley itself: incapacity is not an ‘off switch’ for P's rights and freedoms, above n 1, at [11]. See also Biggs identifying a shift towards a compassionate person centred approach, in ‘From dispassionate law to compassionate outcomes in health care law or not’ (2017) 13(2) Int J of Law in Context 172 at 179Google Scholar. Whilst there is an emerging body of literature on the weight attached to P's wishes and feelings in decisions as to what is in P's ‘best interests’ that issue is outside the scope of this paper: see however Ruck Keene, above n 76, and Donnelly, M ‘Best interests in the Mental Capacity Act: time to say goodbye?’ (2016) 24(3) Med L Rev 318CrossRefGoogle ScholarPubMed.

⁷⁹ Re P [2017] EWCOP B26; DM v Y City Council [2017] EWCOP 13; Cambridge v BF [2016] EWCOP 26 at [22] ‘doing the best I can to put myself in her shoes’.

⁸⁰ See Bandes, S ‘Compassion and the rule of law’ (2017) 13(2) Int J of Law in Context 184 at 185CrossRefGoogle Scholar, defining empathy as not taking sides, but ‘a desire to see things from the vantage point of another – to try to understand what is at stake for the parties’.

⁸¹ See above.

⁸² Professionals are usually tasked with informing the court of the wishes and feelings of the subject of proceedings (usually a CAFCASS Officer in the case of children, and a treating or independently appointed doctor, psychologist, IMCA (independent mental capacity advocate) or social worker in the case of P). Cf New Zealand, where it is envisaged that the judge meeting the child will be the primary means of ascertaining wishes and feelings: Caldwell, above n 13, at 57 and Tapp, above n 53.

⁸³ See http://www.parliamentlive.tv/Event/Index/0fe8cea8-89db-453c-afb2-7a97d8b20db1, accessed 18 February 2019.

⁸⁴ Series et al, above n 7, p 98.

⁸⁵ Practice Guidance (Transparency in the Court Of Protection) [2014] EWCOP B2, particularly para 16.

⁸⁶ British and Irish Legal Information Institute: see http://www.bailii.org.

⁸⁷ For examples see Re AA [2013] EWCOP 4378; Re SB [2013] EWCOP 1417.

⁸⁸ Eg where the judgment was concerned with reporting restrictions rather than the substantive health and welfare issues.

⁸⁹ Eg PS v LP [2013] EWCOP 1106 – P had suffered a cerebral aneurism resulting in participation not being possible – ‘it is uncertain whether she knows who or where she is’, at [5].

⁹⁰ Re E (medical treatment: anorexia) [2012] EWCOP 1639 – P was in a ‘drug haze’ at the time of the hearing due to strong sedative medication.

⁹¹ NHS Trust & Others v FG [2014] EWCOP 30. Secrecy was upheld where P suffered from persecutory hallucinations, including believing that her doctors had murderous intentions.

⁹² A Local Health Board v AB [2015] EWCOP 31.

⁹³ Y County Council v ZZ [2012] EWCOP B34; CC v KK [2012] EWCOP 2136; A NHS Trust v Dr A [2013] EWCOP 2442; Re SB (A Patient; Capacity To Consent To Termination) [2013] EWCOP 1417; A Local Authority v TZ [2013] EWCOP 2322; X v A Local Authority & Another [2014] EWCOP 29; GW v A Local Authority & Another [2014] EWCOP 20; The Health Service Executive of Ireland v PA & Others [2015] EWCOP 38 (video link).

⁹⁴ Re PB [2014] EWCOP 14; London Borough of Redbridge v G [2014] EWCOP 485; Re Z & Others [2016] EWCOP 4; Lincolnshire CC v JK [2016] EWCOP 59.

⁹⁵ Sandwell MBC v RG [2013] EWCOP 2373; Re M (Best Interests: Deprivation of Liberty) [2013] EWCOP 3456; Westminster City Council v Sykes [2014] EWCOP B9; A Local Authority v B [2014] EWCOP B21; London Borough of Islington v QR [2014] EWCOP 2; A Local Authority v M & Others [2014] EWCOP 33; Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60; Re CD [2015] EWCOP 74; Re W (Anorexia) [2016] EWCOP 13 (via video link); Newcastle Upon Tyne CC v TP [2016] EWCOP 61; Re QQ [2016] EWCOP 22.

⁹⁶ If they do, they may be subjected to ‘hours of cross examination’: GW v A Local Authority & Another [2014] EWCOP 20.

⁹⁷ The Mental Health Trust & Another v DD & Another [2014] EWCOP 11.

⁹⁸ [2014] EWCOP 35.

⁹⁹ Re SB [2013] EWCOP 1417 – P's ability to give direct evidence was attributed in part to the efforts of her medical team.

¹⁰⁰ There are numerous examples of judges chastising NHS Trusts for not bringing matters to the Court's attention more promptly: A Local Authority v K [2013] EWHC 242 (COP); NHS Trust & Others v FG [2014] EWCOP 30; AB v Sandwell [2014] EWCOP 23 at [39].

¹⁰¹ Eg Cole, V Butler and Hobey-Hamsher, L ‘The assessment of capacity by judges in the Court of Protection’ (2016) 2 Elder LJ 1Google Scholar and Facilitating the Participation of P and Vulnerable Persons in Court of Protection Proceedings 2016.

¹⁰² [2014] EWCOP 14.

¹⁰³ Ibid, at [42].

¹⁰⁴ YLA v PM [2013] EWCOP 4020.

¹⁰⁵ Ibid, at [32].

¹⁰⁶ Ibid, at [34].

¹⁰⁷ See below.

¹⁰⁸ Facilitating the Participation of P and Vulnerable Persons in Court of Protection Proceedings 2016, at [14].

¹⁰⁹ Ibid, at [14]–[20].

¹¹⁰ [2016] EWCOP 41 at [48].

¹¹¹ [2016] EWCA Civ 473 – child giving evidence directly to the court in care proceedings.

¹¹² See Biggs, above n 78, highlighting the tendency of CoP judges to stress the highly individualistic nature of the decisions being made, tempering the norms of precedent.

¹¹³ [2016] EWCOP 41 at [56].

¹¹⁴ Series et al, above n 7, p 101.

¹¹⁵ Ibid.

¹¹⁶ [2015] EWCOP 60 at [18].

¹¹⁷ [2015] EWCOP 74 at [31].

¹¹⁸ See eg Lieberman, J and Arndt, J ‘Understanding the limits of limiting instructions: social psychological explanations for the failures of instructions to disregard pretrial publicity and other inadmissible evidence’ (2000) 6 Psychol Pub Pol'y & L 677Google Scholar; Wegner, D ‘Ironic processes of mental control’ (1994) 101 Psychol Rev 34CrossRefGoogle ScholarPubMed; and Wegner, D and Erber, R ‘The hyperaccessibility of suppressed thoughts’ (1992) 63 J Personality & Soc Psychol 903CrossRefGoogle Scholar.

¹¹⁹ A Wistrich et al ‘Can judges ignore inadmissible information? The difficulty of deliberately disregarding’ (2005) Uni of Pennsylvania Law Review 1251 at 1262.

¹²⁰ Ibid.

¹²¹ Baroness Hale ‘Can You Hear Me Your Honour?’ Hershman/Levy Memorial Lecture, 2011 (available at www.alc.org.uk/uploads/Can_you_hear_me,_Your_Honour._Memorial_lecture_2011.pdf) (emphasis added).

¹²² See eg Re N-A [2017] EWCA Civ 230.

¹²³ Re A (Fact Finding Hearing: Judge meeting with Child) [2012] EWCA Civ 185: ‘I saw Jo not for the purposes of gathering evidence, nor do I attribute to myself any skill with children that is of forensic value… I deal with it at this part of the judgment to make clear the fact that I had not come to my final decisions but had formed a view before I saw Jo’ (per His Honour Justice Richardson) at [95]–[97] of his judgment, replicated here at [33] (emphasis added).

¹²⁴ Parkinson and Cashmore, above n 13, p 184.

¹²⁵ Frank, J Law and the Modern Mind (Stevens, 1949)Google Scholar reprint of original version (Coward-McCann, 1930) p 40.

¹²⁶ Eg S Danziger et al ‘Extraneous factors in judicial decisions’ (2011) PNAS 6889 and Kosinski, A ‘What I ate for breakfast and other mysteries of judicial decision making’ (1993) 26 Loyola LA Law Review 993Google Scholar.

¹²⁷ [2015] EWCOP 74 at [31].

¹²⁸ Ibid.

¹²⁹ Ibid at [31].

¹³⁰ Above n 1.

¹³¹ According to Re N-A [2017] EWCA Civ 230 at [30].

¹³² See Section 2(b) above.

¹³³ At [42].

¹³⁴ [2015] EWCOP 60 at [2] and Re CD [2015] EWCOP 74 at [28] – the judge was in no doubt that CD was incapacitous.

¹³⁵ Re A [2012] EWCA Civ 185 at [55].

¹³⁶ Ibid, per Thorpe LJ.

¹³⁷ And helping P feel part of proceedings (Best Interests: Deprivation of Liberty) [2013] EWCOP 3456 at [42].

¹³⁸ At [37].

¹³⁹ See Wilson LJ in Re W [2008] EWCA Civ 538 at [57] in the Court of Appeal, preferring any such meeting to take place only after giving judgment and only to explain the reasons for the decision.

¹⁴⁰ Wistrich et al, above n 119, at 1265.

¹⁴¹ [2016] EWHC 608 (Fam) at [65].

¹⁴² Wording from Mostyn J in Carmarthenshire CC v Y [2017] EWFC 36 at [8]–[16].

¹⁴³ See P Welbourne, noting that in England and Wales family proceedings remain primarily ‘adversarial’: ’Adversarial courts, therapeutic justice and protecting children in the family justice system’ [2016] CFLQ 205.

¹⁴⁴ See for example Re U (A Child) (Department for Skills and Education Intervening) [2005] Fam 134 at [143]–[144]; Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at [13], [68]–[70] confirming Children Act cases to be less adversarial than criminal proceedings and taking a more relaxed approach to evidence.

¹⁴⁵ Eg Re J (A Child) [2014] EWCA Civ 875.

¹⁴⁶ Eg see Baker J in Cheshire West and Chester Council v P [2011] EWCOP 1330 at [52], A London Borough and A Foundation Trust v VT & Others [2011] EWCOP 3806 at [5] and Re G [2014] EWCOP 1361 at [26].

¹⁴⁷ With thanks to Alex Ruck Keene for this comment.

¹⁴⁸ One hallmark of essentially inquisitorial systems is that the judge's role includes gathering the evidence: Finkelstein, R ‘The adversarial system and the search for truth’ (2011) 37(1) Monash U L Rev 135Google Scholar.

¹⁴⁹ G Birchley ‘What god and the angels know of us?’ (2018) Med L Rev (online first) at 25.

¹⁵⁰ MCA 2005, s 61(2) and (3): ‘CoP Visitors’ are appointed by the Lord Chancellor under s 61 of the Act.

¹⁵¹ [2015] EWCOP 56.

¹⁵² [2015] EWCOP 59 at [261].

¹⁵³ This may explain why the ‘non-presumptive stance’ has been applied to forms of participation beyond ‘giving evidence’. Shortly after Re W, Justice Peter Jackson commented that the presumption of harm to the child caused by attendance at the court hearing expressed in earlier cases was flawed and that an open assessment was required: A City Council v K [2011] EWHC 1082 at [33]. The judgment does seem to creep closer to a presumption in favour of attendance if the child wishes it by stating that it would require ‘particularly cogent evidence’ of psychological harm to the child before a child asking to attend a hearing on their secure accommodation would be excluded ([54]).

¹⁵⁴ A County Council v AB, above n 3, at [36] and [49], construing Rule 90.

¹⁵⁵ [2016] EWCOP 41 at [48] (emphasis added).

¹⁵⁶ Ibid, at [12].

¹⁵⁷ Instead relevant factors are identified, including the purpose of the meeting, seeking the judge's views and identifying relevant risks affecting P visiting court or the judge visiting P.

¹⁵⁸ Rescher, N Presumption and the Practices of Tentative Cognition (Cambridge: Cambridge University Press, 2006) p 11CrossRefGoogle Scholar.

¹⁵⁹ Caldwell, above n 13, at 60.

¹⁶⁰ The extent to which these arguments might suggest that the rules need to be revisited in respect of the Family Court is outside the aims of this paper.

¹⁶¹ For two examples of many, see Re P [2017] EWCOP B26; Sheffield Teaching Foundation Hospital NHS Trust v TH [2014] EWCOP 4 – family providing the ‘authentic voice’ of P.