By Celia Kitzinger, 1st March 2023 (revised 3rd March 2023)
This is the first time I’ve watched a hearing before Mrs Justice Theis since she became Vice President of the Court of Protection on 13th February 2023.
One of the last things the previous Vice President, Mr Justice Hayden, did before he stood down earlier this month was to publish the Guidance for the Court of Protection on “’closed hearings’ and ‘closed material’” (9th February 2023). So, this must be one of the first Court of Protection hearings to deal with the matters covered in that Guidance since it was published.
This case (COP 13907545 on 28th February 2023) concerns a learning-disabled woman in her twenties (P) who has been subjected to an arranged marriage to which, as I understand it, she was unable to consent. She is now living in a residential facility, and I gather that her parents would like her to return home. They have agreed, following earlier court hearings, to take the necessary steps to end or annul the marriage – although that does not seem to have been progressed.
Her parents are parties to the case, and certain material has been redacted in their versions of the court bundle. They don’t have access to evidence that is available to the other parties. So there is ‘closed material’ at this hearing, defined as “material which the court has determined should not be seen by the party (and/or their representative)” (from the Guidance).
The hearing
It’s a hybrid hearing.
The judge, the two barristers, P’s father and his McKenzie Friend (who was also acting as the father’s interpreter) are all in Court 33 in the Royal Courts of Justice – along with a couple of other people I take to be the instructing solicitors, and PA journalist Brian Farmer.
On the remote platform there are (the judge says) “at least three” public observers, and also people who have identified themselves to the court associate as P’s case manager, P’s social care support worker, and P’s social worker (amongst others).
Unfortunately, Cloud Video Platform (CVP) isn’t working well in Court 33. Last week there was no sound at all audible over CVP from Court 43. This time it seems to be a problem with two of the microphones – those used by the two barristers. The judge herself comes across loud and clear. The problem with the sound output from the barristers must be deeply frustrating for the people on the video-platform who are actually involved in the case, and trying to support P.
Sally Gore of Fenners Chambers is counsel for Luton Borough Council, the applicant in this case. The judge asks her to provide a summary for the benefit of observers, but I hear only snatches of what she says. Despite trying two different head sets and turning my laptop volume up to maximum, her speech comes across as very faint, and – worse still – distorted, as though it’s coming from under water. I can decipher odd phrases (“psychiatrist… capacity to marry… injuries to legs and feet ….paragraph 32 …. multidisciplinary team…”), but most of what she says is inaudible and she remains largely inaudible for the duration of the entire hearing. The judge (whose mike is working beautifully) asks her at the outset for “a headline list of things I’m being asked to determine today” and I can’t hear any of her response – although I’m able later to reconstruct what the case was about from the short judgments made before lunch and at the end of the afternoon hearing.
As the hearing progressed, counsel for the local authority remained barely audible. Counsel for the Official Solicitor (Bethan Harris of Garden Court Chambers) was sometimes audible, but every cough in the courtroom, every rustle of paperwork, obliterated her voice. Likewise, P’s father and his McKenzie Friend/interpreter were hard to hear, and making out what they were saying was further complicated by their accents as non-first-language English speakers.
And so, for an overview of the case, I recommend reading the BBC article by Brian Farmer, who was in the physical courtroom: “Arranged marriage: Judge protects woman with learning disabilities”.
Unusually, neither the journalist nor I were sent Position Statements for this case (I understand because they had not been anonymised) until three days after the hearing – which meant three days after publication of the press report and a couple of days after I published a first version of this blog post. Having now received the Official Solicitor’s Position Statement (sent at 11.56 on 3rd March 2023) I have updated accordingly.
My focus in this blog is (and was) on how the matter of ‘closed materials’ was managed by the judge – because the judge was the one person I could hear perfectly. The most important change in this updated version of my blog relates to the application to redact. My initial impression, before I received assurances to the contrary from the two lawyers involved in the case, and then the Official Solicitor’s Position Statement, was that there had been no previous request from either the Official Solicitor or the local authority for permission to redact the documents shared with the parents. This is not correct. There had been a previous application and the court had already granted permission for the redacted documents to be filed, on an interim basis.
Closed materials
I was on the verge of giving up on this hearing due to the problems with the audio when I suddenly heard the judge raise the issue of “redaction”. She sounded a bit cross:
“I’m unclear at the moment from the documents I’ve got what exactly has been seen by the parents. I understand that certain parts of the information P has given has been redacted because of her concern about certain information being shared with her parents? [Yes] I don’t know what has been redacted. It hasn’t been highlighted in the document and I think that is unsatisfactory…. I don’t think that was raised at the last hearing. I don’t know how much there has been discussion with the parents outside court so they know what all this means.”
The problem seemed to be that the lawyers had redacted the bundle sent to the parents but provided the judge with only a non-redacted version (and, I think, a list of the redactions). The judge sounded frustrated by the challenge before her of identifying just what material had been ‘blacked out’ from the parents’ documents.
“I’ve got a 903-page bundle and I don’t think the redaction was brought to my attention. I need to be able to see clearly both what is being said in the open document and what’s being said that’s redacted. […] I’m stating the obvious. How on earth am I supposed to deal with this issue without seeing what these documents are. […] For me to understand it, I need to know what is being redacted and what isn’t. All I’ve got is an unredacted version. Maybe that ought to be a lesson learnt in relation to managing these proceedings, but let’s just get on with the hearing for now.”
A little later, the judge drew P’s father’s attention to the blacked-out lines and said “that’s called redaction”. She explained that it had been done because P did not want her parents to know what she had said. The father seemed to accept that in relation to his daughter’s statements, but was concerned that part of a doctor’s report had also been redacted.
The judge said again “I can’t deal with the redaction issue until I’ve seen all the documents”, and then gave a short judgment dealing with other issues (appointment of an independent expert, continuation of the Forced Marriage Protection Order, and the date of the next hearing [9th June 2023)). The court then adjourned for lunch.
After the lunch break (and I think after hearing another case between 2pm and 2.30pm), the judge returned – by which time another issue had also arisen: the Transparency Order (see below).
On redaction, the judge explained that she’d now looked through the documentation, and that the material that had been redacted in the doctor’s report was identical to the material that came directly from P herself. It was the same information that P didn’t want her parents to know, either from her directly or conveyed “second-hand” via the doctor’s report.
The judge was obviously disturbed by what had happened. My impression was that it was not the redaction itself (since she had previously approved an application that material could be redacted) so much as as the manner in which the redaction had been done – without what she considered to be sufficient explanation of what had been redacted or why. She said that normally:
“… there should be complete disclosure, for very obvious reasons, but that has to be balanced with P’s best interests if there were disclosure and the impact that might have on her participation in proceedings. I’m minded to permit these redactions at the moment, but make it clear there is going to need to be some very rigorous thought and scrutiny of that before the next hearing. […] If anyone wants the redaction to continue beyond the next hearing, there needs to be an actual application.”
At the end of the hearing, she gave a short judgment concerning the closed materials.
“There has been an application from the local authority and the Official Solicitor for certain information to be redacted from the document provided to the parents who are respondents in these proceedings. The court has had the opportunity to view the material that’s been redacted. In considering whether the court should permit those redactions, it has taken into account the following matters.
- It is an obligation of open justice that all parties should see the material all the other parties have seen
- I need to satisfy myself that a request to withhold information from a party is validly made. What is said here is that it accords with P’s wishes that certain information is not shared with her parents. That reflects the level of anxiety she has if that information were to be shared with them, which could impact on her ability to participate in these proceedings – namely to speak frankly with her solicitor and those who care for her.
- I need to consider the best interests of P, and the greater the risk of harm by disclosing this material, then the stronger the imperative that this information should be withheld at this stage.
- If this material were not redacted then the parties would be on an equal footing and this is relevant to their Article 6 rights to a fair trial.
- I can take into account ‘necessity’.
- Both Article 6 and Article 8 rights are engaged and the court needs to consider the least invasive and least disproportionate measures.
Bearing in mind the stage this case is at, and where P is now, and the information the court has – and takes at face value – that not disclosing accords with her wishes, and that it would cause her anxiety if it was disclosed and impact on her ability to participate in these proceedings – and given that it’s understood and accepted by the parents that this is the reason this information is not being disclosed, I am persuaded at this stage that it is necessary and in P’s best interests that this information is not disclosed at this stage.
But, as I’ve said, this issue requires proper and effective scrutiny, because it may become important information that may have an impact on the decisions the court is being asked to make. So it may be that the pendulum will tip the other way in future.
If either the Official Solicitor or the local authority continue to want this information to be redacted and not disclosed to the parents, I shall want a proper application, and one that’s clear about the basis on which this information is redacted and also whether future hearings should be open to the public. I’m not suggesting they should not be but I want this addressed. And there’s going to need to be a direction that the court needs to be provided in advance with a bundle with the redacted material in it. And it needs to be done in a way where the court doesn’t have to wade through an electronic bundle of 903 pages to work out what has and hasn’t been redacted.”
And that was the end of the hearing.
Reflections
I was concerned about two substantive matters in this hearing (in addition to the CVP failure already mentioned): the issue of ‘closed materials’ and the way in which the Transparency Order was addressed. I’ll discuss each in turn.
- Closed materials
It was clear that the judge was having difficulty with a large electronic bundle and was struggling to make sense of what material was being withheld from two of the parties, or why that material in particular.
I have now read the Position Statement from the Official Solicitor and I can see that it covers the legal framework applicable to redacting court documents in some detail – with reference to the Court of Protection Rules 2017, to previous case law, and to the Vice President’s Guidance (included in full as an appendix).
The Guidance is clear.
“The starting point is that, in principle, all parties (and, if not joined as a party, P) to proceedings before the Court of Protection should be able to participate in all hearings, and have sight of all materials upon which the court will reach its conclusions.”
A key reason for this (says the Guidance) is the principle of open justice, which “normally requires that a judge cannot read or hear evidence, or receive argument which is not before all the parties to the proceedings”.
Derogation from the basic principles of open justice requires – as the judge made clear – proper and effective scrutiny.
23. In any case where the basis for withholding disclosure is identified as being necessary to secure the rights of P, the following staged approach applies to the court’s consideration (and hence to the matters which must be set out in any application for material to be closed):
- When deciding whether to direct that a party should not be able to inspect the part in question, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to P;
- If it would, the court should next consider whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P 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;
- If the court is satisfied that the interests of P 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 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;
- In all cases, the test for non-disclosure is whether it is strictly necessary to meet the risk identified by the court.
The problem here seems to have been with displaying the redactions (and the reasons for them) in a readily accessible form for the judge – and not any failure to engage with the fundamental principles of open justice. I’m not sure what deficits Theis J intended to reference when she refers to the need for “a proper application” for ongoing redaction (was there something ‘improper’ about the previous application?), but perhaps, in future, lawyers making applications to redact might find it worth their while to enquire of the judge how they would like information about the redactions to be formatted: as a list? as a set of paired documents, one redacted and one not? or some other way? As it was, it seems the judge was overwhelmed by the task of locating the information she needed – hence “it needs to be done in a way where the court doesn’t have to wade through an electronic bundle of 903 pages to work out what has and hasn’t been redacted“.
It is helpful to have a judgment about closed materials that is both principled and pragmatic to add to the existing case law and to the guidance. I have asked Theis J whether she will consider publishing it.
2. Transparency matters
At the outset of the hearing the judge announced: “Nothing is to be reported that in any way identifies the young person who is the subject of this hearing, and if anyone needs a copy of the Transparency Order they should contact the court”.
This is slightly odd – since my understanding is that it is the responsibility of the court to ensure that an injunction is served on us to protect P’s Article 8 rights, not up to us to decide whether or not we “need” to have an injunction served on us.
Moreover, I doubt that most people would know how to “contact the court” to obtain the Transparency Order. Writing to the Royal Courts of Justice email address, or to the Video Hearings Administrators who send out the links, is unlikely to result in a Transparency Order being sent, and few members of the public know how to contact the lawyers directly, or would feel ‘entitled’ to do so.
Journalist Brian Farmer, who was in the physical courtroom, obtained a copy of the Transparency Order during the lunch hour, and reported back to the court subsequently that there was a view from the lawyers that the ‘standard’ wording meant, or might mean, that we were prevented from publishing the name of the local authority, Luton Borough Council.
This was (to me) a surprising argument, since there was no prohibition in the Transparency Order, which was in the standard form, on naming Luton Borough Council.
The Transparency Order says that we cannot publish “any information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details” (6(ii)). (The “persons listed above” are P and her family members.) Naming the local authority does not identify where these people live or reveal their contact details. As Brian Farmer put it, “if I’m stopped by the police and asked where I live and say ‘I live in the New Forest District Council’, that isn’t going to enable anyone to identify my address!”.
If there’s any risk that naming a public body would permit identification of P and her family, via jigsaw identification (i.e. in conjunction with other salient facts about the person, some of which may already be in the public domain, others of which are revealed in the course of a hearing), then someone needs to make an application to the court explaining how that is so (and undoubtedly it sometimes is so, albeit not as often as parties claim). If the judge accepts that naming a public body runs a real risk of identifying P, then she weighs up P’s Article 8 right to privacy against the public’s Article 10 right to freedom of information and makes a decision about whether or not to ‘vary’ the Transparency Order so as explicitly to include the public body in the prohibited information. I have been in court for scores of such determinations before dozens of different judges.
But in this case the lawyers didn’t seem to be making an application to vary the Transparency Order. In fact, counsel for the local authority said they were “neutral” on the matter, and counsel for the Official Solicitor was “just being cautious”. But both seemed to be suggesting that the wording of the standard Transparency Order might already imply a prohibition on naming the local authority. If that were so, we’d never be able to name public bodies – since that is the standard wording! As Brian Farmer said in court “I have never before come across an order like this interpreted in that way”.
As it turned out, the judge did not accept the argument that naming the local authority was already prohibited by the Transparency Order, nor did she encourage an application to prohibit the naming of the local authority, and so we can name Luton Borough Council.
It is also curious that when I received the (unsealed) Transparency Order (dated 9 June 2023), I found that it has the name of P and both her parents on the front cover (as first, second and third respondents) and P’s name in the body of the document (1(a)). This is very usual. My understanding is that Transparency Orders are public documents and for that reason they are almost always anonymised – the main exception being when the order is not intended to prohibit reporting of P’s name. I’d been told that the reason that I wasn’t sent the Position Statements was because they had not been redacted to remove P’s names and the names of her family members – but I was sent this document which included all three names, which seems inconsistent.
Conclusion
This was the first time since the Guidance was published earlier this month that I’ve witnessed a ‘closed material’ hearing.
I’ve been very concerned about the ethics of closed hearings, as I articulated in my submission to the COP Rules Committee (Closed Hearings: Submission to the Rules Committee). The experience of watching this hearing has left me heartened by the robust response of the judge. She was right, I believe, to say that there should be “a lesson learnt” about managing closed material in COP proceedings (i.e. that judges should give some thought to how they want redacted material displayed and presented to them) and that “rigorous thought and scrutiny” is needed before the next hearing to review whether and why ongoing redaction is ‘necessary’, and its likely implications for the future conduct of this case. I’m pleased that there is now Guidance in place and glad to see that it formed part of the Official Solicitor’s submission to the court.
Three final points:
- If there is to be a restriction on sending out Position Statements unless they are anonymised (a restriction not normally observed in the past), then please can lawyers prepare anonymised versions in advance of the hearing so that there is no delay in getting them to observers. As is evidenced by the difference between my first and my revised version of this blog post, Position Statements are crucial for understanding the proceedings.
- Transparency Orders (TOs) should always be anonymised – not least so that when (as happens in practice quite frequently) they are not sent out to all the observers, it’s possible for one observer to forward them to other observers who haven’t received them without breaching the order itself. As blog editor for this Project I quite frequently find myself needing to forward a TO that I’ve received but other observers have not, so that they can write blog posts with an understanding of the reporting restrictions; and, conversely, in relation to hearings I’ve not personally observed, I need to ask prospective authors for the TO from their hearings to assure myself that the draft blog submitted doesn’t breach the reporting restrictions.
- The ongoing problems with Cloud Video Platform in this (as in other) hearings will be addressed in my letter of concern to His Majesty’s Courts and Tribunal Service. It’s particularly unfortunate that there were difficulties with sound quality in this hearing since the court associate did check with us in advance that we could hear – and we could hear perfectly on whatever mike she was using at the time. I suppose the barristers’ mikes need checking in future as well. And perhaps when the applicant barrister begins to embark on her opening summary of the case, there needs to be a check then that everyone on the video platform can hear. I appreciate how enormously frustrating the difficulties with CVP are for everyone concerned (especially when MS Teams served us so well over the course of the pandemic).
In the end, this hearing reinforces my belief that open justice and transparency is a basic principle in the Court of Protection, shared by bar and bench alike. It’s ironic that it’s when things go wrong (with sound systems, anonymisation, and clarity in redaction) that commitment to this principle becomes most apparent to me. The challenge, as always, is to translate aspiration into practical reality.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project, and has personally observed more than 400 hearings since 1st May 2020. She tweets @KitzingerCelia
Note: Quotations are as accurate as I can make them given that we are not allowed to audio-record hearings. They are drawn from touch-typed contemporaneous notes.
Promoting Open Justice in the Court of Protection 