The Court of Protection team at 39 Essex Street analyse an important decision on the approach to be adopted to the withholding of documentary material from a party to CoP proceedings.
In the case of RC v CC and X Local Authority  EWHC 131 (COP) (Sir James Munby P) CC, a young adult who lacked capacity in all material domains, was adopted as a very young child. For many years her birth mother, RC, had indirect ‘letter-box’ contact with her. It then stopped. CC lived in the area of X local authority. RC did not know where CC lived or the identity of X local authority.
RC issued an application in the Court of Protection seeking contact with CC. In accordance with directions given by the court, X local authority filed a report by a clinical psychologist and three social worker statements by employees of X local authority. All relate to CC. The issue of whether they should be seen by RC came before HHJ Cardinal, who handed down his decision in May 2013 (RC v CC  EWHC 1424 (COP).
HHJ Cardinal concluded that although RC should be permitted to see a redacted version of the clinical psychologist’s report, she should not be permitted to see any of the three social worker statements. His order included a provision enabling RC's legal representatives to see the three statements “on the basis that the material contained therein is not divulged to RC without further leave of the court.”
RC was refused permission to appeal by HHJ Cardinal; she renewed her application before the President, Sir James Munby P at an oral hearing in October 2013. Sir James Munby P gave her permission at the outset of the hearing, under COPR r173(1)(b), on the basis that, irrespective of the merits of the appeal, there was a compelling reason why the appeal should be heard, namely the need for an authoritative ruling on the very important point of principle that has been raised.
In his reserved judgment handed down on 30 January 2014, the President reviewed the jurisprudence relating to the proceedings in wardship and more generally in other cases involving children, in which it had been held on very high authority that the special nature of the jurisdiction justified departure not merely from the principle of open justice but also from other aspects of ordinary civil procedure.
It was, he held, clearly established that the court in children cases has the power to refuse disclosure of materials to the parties to the proceedings. Further, on the basis of In re D (Minors) (Adoption Reports: Confidentiality)  AC 593; Re B (Disclosure to Other Parties)  2 FLR 1017; and Dunn v Durham County Council  EWCA Civ 1654,  1 WLR 2305, it was clear that the test for when the power should be exercised could be summarised thus:
1. The court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child;
2. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur;
3. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.
Citing the decision of the Court of Appeal in Dunn v Durham (in which he had himself participated), the test, the President held, was whether non-disclosure was strictly necessary. He noted, further, that consideration should always be given to the fact that disclosure is never a binary exercise, and a proper evaluation and weighing of the various interests may lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards such as limits to the use that may be made of the documents, in particular so as to limit the release into the public domain of intensely personal information about third parties. Further, the position initially arrived at is never set in stone and that it may be appropriate to proceed one step at a time.
The President concluded without hesitation that the same jurisdiction - and the same approach - was applicable when it came to incapacitated adults: “One really needs look no further than Scott v Scott [ AC 417] to see that the same fundamental principles underlie both jurisdictions. If more is needed, there is, it seems to me, some support to be derived from In re E (Mental Health Patient)  1 WLR 245. More recently, and more to the point, there are the powerful observations of McFarlane J, as he then was, in Enfield London Borough v SA, FA and KA  EWHC 196 (Admin),  COPLR Con Vol 362, para 58, with which I respectfully agree” (paragraph 21).
When it came to the question of whether HHJ Cardinal was entitled - in principle - to limit disclosure to RC’s legal representatives, the President noted that disclosure limited to a party’s legal representatives had been acknowledged as a recognised practice in wardship in Official Solicitor to the Supreme Court v K and Another  AC 201. The President, further, considered that there could be no doubt as to the legality of the practice, citing in support R (Mohammed) v The Secretary of State for Defence  EWHC 3454 (Admin).
The President noted, however, that there were obviously practical difficulties to such an approach, chief amongst them being the requirement that such disclosure cannot take place without the consent of the lawyers to whom the disclosure is to be made; and they may find themselves, for reasons they may be unable to communicate to the court, unable to give such consent. Moreover, he noted, the lawyers cannot consent unless satisfied that they can do so without damage to their client’s interests.
Turning to the appeal before him, the President found that HHJ Cardinal had correctly directed himself as to the law, save for one point where HHJ Cardinal had appeared to suggest that the rules applicable to disclosure in family proceedings would differ from those in CoP proceedings: had he so held, that would have been incorrect, the President found, although HHJ Cardinal was undoubtedly correct to find that the application of the principles may differ between the two categories of proceedings.
Sir James Munby P endorsed HHJ Cardinal’s decision insofar as it related to the disclosure of the redacted psychological report. He considered that it appeared to provide RC with all the material she needs to be able to conduct her case. HHJ Cardinal who (unlike Sir James Munby P) had read the full report, was that there was nothing in the full report “which assists RC any further.” On the other hand, the President noted, “there are – there must in the nature of things be – compelling reasons why someone in RC’s position should not have disclosed to her (at least at this stage) information about CC’s whereabouts and private circumstances which, but for the current litigation, she would have no right to know and no means of finding out. As Baroness Hale of Richmond JSC pointed out in In re A (A Child) (Family Proceedings: Disclosure of Information)  UKSC 60,  3 WLR 1484, para 21, in the passage I have already quoted, the court must ‘prevent the proceedings which are there to protect the child being used as an instrument of doing harm to that child.’... there is in my judgment no proper ground of challenge [to this aspect of HHJ Cardinal’s decision]” (paragraph 31).
Sir James Munby P took a different view in relation to HHJ Cardinal’s refusal to allow RC to see even redacted versions of the three social work reports. His decision to set aside the decision and remit it to HHJ Cardinal was reached on three bases:
- The President found that he could not be confident that HHJ Cardinal had not inverted the test that he had correctly formulated by asking himself whether it was necessary for RC to see the documents, but whether non-disclosure was necessary in CC’s interests;
- Whilst not ruling out that the decision might have been appropriate, the President also found that HHJ Cardinal had given inadequate justification for the decision that nothing in the three witness statements could be disclosed, noting that a large amount of sensitive personal information about CC had been disclosed to RC in the redacted psychological report;
- Whilst rejecting the submission that the ‘closed material procedure’ (a phrase the President did not find helpful) adopted by HHJ Cardinal was inappropriate as a matter of principle, he questioned whether the procedure was appropriate on the facts of the case. In particular, he noted that HHJ Cardinal did not seem to have explored the questions of the necessity of counsel’s agreement, nor did he consider other possible solutions: allowing RC to read, but not to borrow or copy, suitably redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers.
The appeal was therefore allowed to the extent that the decision related to the social work reports and remitted to HHJ Cardinal.
As an aside, Sir James Munby P noted that he could not help thinking that in an unusual case such as this it might have been better if, instead of giving RC permission in accordance with COPR r 55(a), the District Judge who had initially granted permission to RC on the papers had instead fixed a date for the hearing of the application for permission in accordance with COPR r 55(c).
This decision is of very considerable importance in terms of clarifying once and for all that the principles relating to withholding of disclosure in Court of Protection proceedings are identical to those that have been developed in relation to children.
In our experience, disclosure and non-disclosure are two of the areas of the Court’s practice and procedure that most often give rise to the appearance that decisions are taken on the basis of pragmatism rather than any detailed consideration of the priniciples involved. It is fair to say that this is not helped by the way in which the current rules relating to disclosure in the COPR are modelled upon the adversarial model contained in the CPR, whereas, as noted by McFarlane J, as he then was, in Enfield London Borough v SA, FA and KA  EWHC 196 (Admin),  COPLR Con Vol 362, the approach in the family court is that there is a duty to give the court all relevant material.
As McFarlane J noted in the welfare case of SA (in observations endorsed by the President in CC as ‘powerful’ (paragraph 20): “58. There can, in my view, be no justification for there being a difference of this degree on the issue of disclosure between the family court and the Court of Protection in fact-finding cases of this type where really the process and the issues are essentially identical whether the vulnerable complainant is a young child or an incapacitated adult. For the future in such cases in the Court of Protection it would seem to be justified for the court to make an order for ‘specific disclosure' under COPR 2007, r 133(3) requiring all parties to give ‘full and frank disclosure' of all relevant material.”
This, we would note in passing, appears to have been an observation that has been almost universally ignored in the years since it was given; we would hope that it will be brought back to the forefront of judicial minds in light of this decision.
Further, we now - for the first time - have a clear set of principles which can be applied when a judge is considering whether to make an exceptional order for non-disclosure.
Turning to the question of disclosure solely to counsel (or other legal representatives), we may perhaps, be excused, if we take a brief moment to note with appreciation that our comment upon this aspect of the case in June 2013 was cited by the President in his judgment as being "characteristically thoughtful".
We hope that, in the same vein, we may respectfully note that the decision in Mohammed which we noted in that comment, and relied upon by the President in his judgment has now been doubted. In AHK, AM, AS, FM v Secretary of State for the Home Department  EWHC 1426 (Admin), Ouseley J expressed considerable disapproval about lawfulness of lawyer-only rings in the judicial review arena, in particular because of the "very serious problems" it creates between lawyer and client (see paragraph 27, and the reference there to strong terms in which the practice had been disapproved of in the House of Lords in Somerville v Scottish Ministers  1 WLR 2734). The decision in AHK is under appeal to the Court of Appeal; whilst, as Sir James Munby P noted, the practice appears to be one of long-standing in relation to wardship proceedings, it may be that this is yet to be the end of the story.
This article was written by the Court of Protection team at 39 Essex Street.