AA v London Borough of Southwark  EWCA Civ 512
Court of Appeal
In re P (Court of Protection: Discharge of Party)
2021 March 9; April 16
Peter Jackson, Baker, Warby LJJ
Mental disorder— Court of Protection— Jurisdiction— Discharge of party from proceedings— Mother party to proceedings in Court of Protection concerning vulnerable daughter— Parties disclosing evidence to court without notice to mother— Court of Protection discharging mother from proceedings on own initiative— Mother given no notice of order or of evidence for decision and no opportunity to make representations— Whether court having jurisdiction to discharge party without notice— Whether court should consider alternative procedures to protect daughter’s best interests whilst limiting infringement of mother’s rights— Mental Capacity Act 2005 — Court of Protection Rules 2017
Mental disorder— Court of Protection— Closed hearings— Whether special advocate procedure appropriate
The local authority commenced proceedings in the Court of Protection concerning P, a highly vulnerable 19-year-old woman, and her mother AA was joined as a respondent at their inception. The mental health trust where P received outpatient treatment was subsequently joined to the proceedings. On 3 November 2020 the judge made an order to discharge AA as a party on his own initiative. AA was given no notice that the order was going to be made, no notice of the evidence on which the judge relied when making the order, and no opportunity to make representations before it was made. No judgment was delivered at the hearing on 3 November and AA was given hardly any indication of the reasons why the order was made. At the same time as making the order, the judge directed that, if AA wished to make any representations in respect of the order, she should do so within three days. Written submissions were made followed by a series of e-mails to the court inquiring when a decision would be made in response. In December 2020 AA made an application asking for a judgment relating to, or reasons for, the order dated 3 November and any further decision made in the light of the later submissions filed on 6 November. On 8 December the judge made an order adjourning the application for a judgment. The principal explanation for the judge adopting the highly unusual, if not unique, course was that the other parties to the proceedings had disclosed information to the court without notice to AA and the judge concluded that, if the information was disclosed to AA, there was a risk that P would suffer serious harm. AA appealed against both orders. Although AA was now aware of part of the information on which the judge relied in making the order discharging her as a party, other parts had still not been disclosed and the Court of Protection remained concerned about the risk of harm to P if there was further disclosure. In addition, there was now a linked police investigation and the investigating officers had raised concerns about any further disclosure at the present stage. For those reasons, the Court of Appeal decided to conduct part of the hearing in closed session, with AA being represented in that session by a special advocate.
On the appeal—
Held, appeal allowed. The Court of Protection Rules 2017 invested the court with wide powers to exclude parties from hearings, to withhold information from parties, to discharge parties from the proceedings, and to dispense with the rules altogether. Manifestly, however, those powers had to be exercised in accordance with the overriding objective and with wider principles of law and justice which have been developed and recognised both at common law and latterly under the Human Rights Act 1998. It was true that different factors might apply where there was genuine urgency and there was a need to balance the prejudice of proceeding in the absence of an affected party against the prejudice to P of not proceeding at all. Such considerations might justify excluding a party from a hearing or withholding information from a party for a period of time. They might in exceptional circumstances justify discharging a party. It was, however, difficult to think of any circumstances in which a party who had played a material role in the course of proceedings could fairly be discharged without notice, without any opportunity to make representations, and without being informed at all of the reasons for the decision.
A decision by the court to dispense with the service of an application on a person who would otherwise be entitled to it was not a decision made, under the Mental Capacity Act 2005 for or on behalf of P within the meaning of section 1(5). Accordingly, it was not a decision which “must” be made in P’s best interests. Case management decisions to discharge a party from proceedings or withhold reasons for a decision were similarly outside the ambit of section 1(5). Here, AA’s rights under the Convention for the Protection of Human Rights and Fundamental Freedoms were plainly engaged, both under article 6 and article 8. Insofar as her rights conflicted with P’s, the law required the conflict to be resolved by reference to P's best interests. But any restriction on AA’s rights should have gone no further than strictly necessary. In the present case, there was at the date of the hearing, a very strong argument for withholding information from AA and suspending her contact with P for a period. But it was not shown to be necessary to discharge her as a party and there was certainly no basis for discharging her without notice.
The wide powers entrusted to a judge sitting in the Court of Protection did not entitle him or her to act without regard to the ordinary principles of a judicial inquiry. The same legal principles of fairness and natural justice applied across all jurisdictions, but the way in which they were applied varied depending on the nature of the proceedings and the circumstances of the individual case. Whilst rule 3.4(2) of the Court of Protection Rules entitled the court to make an order of its own initiative without hearing the parties, rule 3.4(4) provided that, if the court had a hearing, it should be on notice to the parties. It was true that rule 3.3 permitted the court to dispense with the requirements of any rule—a provision which, as the editors of the Court of Protection Practice (2020 edition, para 4.15) pointed out, gave the court “immense power” which had no equivalent in either the Civil Procedure Rules or the Family Procedure Rules. In exercising that power, however, the court must not only have regard to the overriding objective in rule 1.1 but also the ordinary principles of a judicial inquiry.
When considering an application to be joined as a party a judge should always consider whether a step could be taken to acquaint the aspirant with the essence of sensitive/withheld material, by providing a “gist” of the material, or disclosing it to the applicant's lawyers. The Family Division had identified a staged approach to applications to discharge a party, starting with full participation then considering partial participation, for example by redacting documents and then, only as a last resort, excluding the party from the proceedings. In the present case, the judge adopted the opposite approach of asking whether there was any reason for AA remaining a party, and having concluded that, given the priority of P’s rights, there was no reason, discharging her without notice. Had the judge simply decided to suspend contact and withhold information from AA for a period of time, he would have been in a better position to determine whether it was necessary or appropriate to discharge her as a party once the picture had become clearer. In all probability it would have been possible at a subsequent hearing to disclose at least part of the information, either redacted or in the form of a gist document. If necessary, the judge could have instigated the special advocate procedure. That was undoubtedly a more complex and costly option. But the special advocate procedure was flexible and could be implemented quickly. It could be used in the present rare type of case. A closed material hearing would rarely be appropriate in the present circumstances but it was an option to be considered wherever important evidence had to be withheld from a party.
Given the serious concerns about the harm allegedly suffered by P and the risk of future harm, the judge was entitled to consider the matter in the first instance without notice to AA and to withhold evidence from her. He would have been fully entitled to make the order which the respondents were asking for, suspending contact between P and AA for a limited period, probably measured as a few weeks in the first instance, to allow the parties to reflect. In the court’s judgment, however, he plainly went too far by discharging AA as a party without giving her the opportunity to make representations and by failing to consider alternative procedures which might have protected P’s best interests whilst limiting the infringement of AA’s rights. There was no reason to doubt that he considered the written representations subsequently filed on AA’s behalf, but he ought to have provided reasons for his decision, albeit in brief terms, and was wrong to adjourn indefinitely the application for a judgment (paras 30, 51–56, 61–63, 65–66, 68, 69).
A Local Authority v M and FB, In re X and Y(Children)  2 FLR 947Not on Bailii!, In re D B and KK v Leeds City Council B considered.
Decisions of Hayden J reversed.
Timothy Nesbitt QC and Alex Cisneros (instructed by Bindmans LLP) for AA.
Katherine Barnes (instructed by Local Authority Solicitor) for Southwark London Borough Council.
Fiona Paterson (instructed by Edwards Duthie Shamash) for P.
Nicola Greaney (instructed by Bevan Brittan LLP) for the South London and Maudsley NHS Foundation Trust.
Stephen Cragg QC as Special Advocate (instructed by Special Advocate Support Office) for AA in the closed hearing.
Alison Sylvester, Barrister.
Mental Capacity Act 2005
Court of Protection Rules 2017