This newly published judgment, Re P (Discharge of Party) [2021] EWCA Civ 512 is interesting because ‘It appears that this is the first case in which a special advocate has been instructed in the Civil Division of the Court of Appeal’ [para 5].

A special advocate is a lawyer who appears in a closed hearing to represent a party who is themselves not permitted to hear certain evidence. Special advocates can be used in ‘closed material procedure’ hearings in cases that involve a judge considering evidence from e.g. the security services that would endanger national security if all the parties and their lawyers had access to it. It’s an odd situation where the advocate for an excluded party represents their interests in a hearing where that party is not present or fully informed.

Discharging a party without notice

In this Court of Protection case, in a very unusual turn of events, the judge, Mr Justice Hayden, had decided to discharge the mother of the person concerned (‘P’) as a party in the proceedings, without any notice and without telling her why. P is a highly vulnerable 19 year old woman with cerebral palsy and selective mutism and suffering from atypical anorexia and post-traumatic stress disorder. She was subject to an application by the local authority because of her urgent need for treatment and protection and questions about her capacity to make her own decisions about her care, residence and contact. P was living in a mental health residential unit and the NHS Trust was made party to proceedings. Any direct contact with her mother was supervised.

Shortly before a hearing in November 2020, the local authority and NHS Trust received information which indicated that P may have been at risk of further harm, from adults associated with her mother. They disclosed this information to the Official Solicitor and to the court but not to the mother or her solicitors. The hearing was, unusually but for obvious reasons, held in private. During this hearing the judge appeared to go further than agreeing to stop contact by saying that, as the mother’s contact was to be stopped in P’s best interests, her mother no longer needed to be a party. He added, addressing the mother’s lawyer: ‘Of course it will be frustrating for your client not to know the reasons behind all of this but we are dealing with an adult and it is P’s best interests that fall to be considered and not anybody else’s.’ [para 16]

Also relevant to the applications regarding non-disclosure were linked police investigations and an application by the local authority for a care order in respect of a child born to P’s mother in October 2020.

P’s mother appealed against the order to discharge her from the proceedings and a subsequent adjournment of her request to the judge to set out his reasons for that order.

The Court of Appeal decision

In a lengthy exposition of the law about excluding a party, the Court agreed that the Court of Protection does have powers under its rules to take the sort of action that Mr Justice Hayden had taken, if this was necessary.

Lord Justice Baker concluded that there was at the time of the November hearing a very strong argument for withholding information from P’s mother and suspending her contact with P for a period, but it was not necessary to discharge her as a party and certainly no basis for discharging her without notice. P’s mother was restored as a party by the Court, but with ongoing restrictions on the evidence she is permitted to see.

The Court noted that only one family court case was drawn to their attention where a party had been discharged without notice – in The Local Authority v The Mother, The Father. M and M [2009] EWHC 3172 (Fam), a father who had parental responsibility had been automatically notified of care proceedings but there were applications to discharge him as a party without notice because he had a record of violence and had threatened to kill the children and their mother. Mr Justice Hedley in that case was certain that the father posed a real and immediate threat to the mother and the children and that, although it might have been possible to ensure he only saw redacted papers, the risk of his finding the family’s whereabouts if he was being served with court documents was too high.

Transparency and public access

An interesting transparency point was made by the Court of Appeal in respect of members of the public who wanted to observe the hearing and had asked for sight of the lawyers’ skeleton arguments beforehand.

In preparation for the hearing of the appeal, counsel for all the parties filed open skeleton arguments and the respondents’ counsel and Mr Cragg [the special advocate] filed closed skeleton arguments. In passing I observe that the manner in which Ms Paterson’s [P’s barrister] documents were drafted was particularly helpful, with the closed skeleton argument highlighting those passages which were excluded from the open skeleton. Regrettably, however, and in breach of the requirements set out in para 33 of PD52C, the parties’ open skeletons were not all formulated in a way they considered suitable for disclosure to court reporters. As a result, the court was unable immediately to meet requests by two observers to provide the skeletons, and it was more difficult for those observers to follow the arguments during the hearing. In future, this is a point which should be considered by the parties and the court during preparation of an appeal. [Para 23]

In all the circumstances, it is perhaps easier for the Court of Appeal to reflect at greater length and in hindsight on ‘necessity’ than the trial judge was able to do.

Throughout the proceedings, and under pressure, it is positive to see members of the judiciary involved paying serious attention to transparency and accountability, despite some shortcomings.  It looks to us as though the Court of Appeal has also taken on board the issues raised in this blog post by one of the observers for the Open Justice Court of Protection Project.

We have a small favour to ask! 
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