The giving of reasons is not a matter of judicial courtesy. It is a fundamental component of a fair judicial process. Where a Court of Protection judge makes a decision affecting a person’s liberty, residence, relationships, property, welfare or participation in proceedings, the reasons for that decision are central to the ability of the person affected to understand, challenge and, where appropriate, appeal it.
Article 6 §1 of the European Convention on Human Rights requires domestic courts determining civil rights and obligations to provide sufficient reasons for their decisions. The European Court of Human Rights has explained that a reasoned decision demonstrates that the parties’ case has genuinely been heard and that the reasons must be sufficient to enable a party to make effective use of an available right of appeal. The Convention does not require an answer to every argument, but it does require the court to address the material issues necessary to explain its conclusion.
That principle has particular importance in the Court of Protection. Its decisions can profoundly affect people who may themselves be unable to participate effectively in proceedings because of an impairment of capacity. The Court of Protection Rules 2017 expressly require the court to deal with cases justly and fairly, to ensure that P’s interests and position are properly considered, and to take account of the issues raised in the case.
Transparency is also an established objective of the Court of Protection itself. Judicial guidance recognises the legitimate public interest in being able to understand what judges are doing and has sought to increase the publication of judgments, ordinarily in anonymised form where necessary. More recent guidance concerning closed hearings goes further, stating that open justice requires a reasoned judgment explaining the rationale for a closed hearing and, insofar as possible, the substantive decision reached.
The problem therefore arises not merely where a judgment is imperfectly expressed, but where the absence of adequate reasons makes the judicial decision effectively opaque. A bare conclusion may tell a person what the court has ordered without telling them why. That distinction is constitutionally important. Without intelligible reasons, a litigant may be unable to identify an error of law, challenge an evidential finding, understand how competing rights were balanced, or formulate meaningful grounds of appeal.
The difficulty is compounded where the subsequent order does not itself explain the basis on which it was made. An order is the mechanism by which the court’s decision acquires practical effect. If the underlying reasoning is inaccessible and the order contains no adequate explanation, the person affected may be left unable to determine precisely what findings were made, what considerations were decisive, and whether the court properly addressed the issues that were put before it.
That is capable of raising an issue under Article 6, particularly where inadequate reasoning has impaired effective access to an appeal or otherwise undermined the fairness of the proceedings. Depending upon the circumstances, other Convention rights may also become relevant—for example, Article 8, where the decision concerns private and family life, or Article 5, where questions concerning deprivation of liberty arise. The precise Convention analysis would necessarily depend upon the facts and nature of the particular decision.
An application to the European Court of Human Rights would not ordinarily be a mechanism for asking Strasbourg to reconsider the merits of a Court of Protection decision. The ECtHR is not a fourth-instance appellate court. The potential complaint is instead that the domestic proceedings failed to comply with Convention standards of fairness—for example, because the court did not provide sufficient reasons to permit the affected person to understand and effectively challenge the decision. The Court itself distinguishes between permissible disagreement with a domestic court’s assessment and decisions whose reasoning is inadequate or arbitrary.
Accordingly, persistent failure to give transparent and intelligible reasons for Court of Protection decisions and consequential orders can provide a legitimate basis for representation to the ECtHR, provided the domestic remedies and the Convention’s admissibility requirements have been satisfied. The issue is not whether every judicial decision must be accompanied by exhaustive reasoning.
It is whether, viewed in the circumstances of the particular case, the reasons given are sufficient to demonstrate that the essential issues were genuinely considered and to enable the person affected to understand and, where available, effectively challenge the decision.
In a jurisdiction exercising such intrusive powers over some of the most vulnerable members of society, that is not an optional standard of good administration.
Reasoned decision-making is part of the safeguard against arbitrary judicial power.
