Closed Material Proceedings: A ‘forced marriage’ hearing before Theis J

By Celia Kitzinger, 23 August 2023

The hearing (COP 13907545 on 27 July 2023) concerns a young woman in her twenties (M) who has a mild learning disability and can also experience anxiety, depression and impulsivity.  She needs 24-hour support to provide assistance with personal care, nutrition, medication and to allow her to access the community safely. 

In March 2022, M was moved from her parents’ home into supported living accommodation and the local authority (Luton Borough Council) made an application for personal welfare orders regarding her residence, care and support, and marriage.

In their application, the local authority described M as “a vulnerable lady who has entered into a marriage with her cousin” in Pakistan.  They said: “It is believed that her parents forced her to marry her cousin. M was previously living at home with her parents, who kept her locked in the house when they found out she is talking to a male friend”.  Divorce proceedings are now underway, and the parents are invited to file the Nadra Card providing final confirmation of divorce under Sharia law, with the court.

After 7 months in supported living accommodation, M returned home.  But just a few weeks later (in December 2022), she jumped from her first-floor bedroom window and sustained serious injury.  When she was admitted to hospital, her parents disguised how she had sustained the injuries (saying she had slipped and fallen in the snow in the garden), which led to M having an untreated fracture in one leg for nearly two weeks. 

On discharge from hospital, she was moved to a nursing and residential care home for rehabilitation. She’s engaging with physiotherapy and now (nearly 7 months after sustaining the injuries) is able to walk with a zimmer frame and crutches.  Her parents and younger sister visit her there, and she visited the family home recently to celebrate Eid – which went well. There are no restrictions on contact between M and her family 

M is currently subject to a Forced Marriage Protection Order (made by HHJ Hildyard).  This is an injunction preventing her parents, and her brother, from (amongst other things) forcing or attempting to force or otherwise instructing or encouraging any other person to force M to undergo any ceremony (or purported ceremony) of marriage, civil partnership, betrothal or engagement and from removing her from England and Wales.

The main issues before the court concern (1) M’s capacity to make her own decisions in the relevant areas; and (2) what best interests decisions should be made on her behalf in relation to those domains where she lacks capacity. The parties are not in agreement about the adequacy of the assessments before the court (made more than nine months ago) -which find capacity in some areas (including residence, contact, sex, and marriage, ) and not in others (including care and support).  There is a suggestion that her capacity fluctuates due to her anxiety and impulsivity.  There is also some concern about how she is affected by the “coercion and control” exerted upon her by her parents.

I’ve watched this case in court before – on 28 February 2023 (“A ‘closed material’ hearing on forced marriage”). On that occasion, PA reporter Brian Farmer also observed the hearing and wrote about it (“Arranged marriage: Judge protects woman with learning disabilities”).

A key issue to be resolved before the final hearing concerns redacted material in the court bundle – which had caused the judge considerable concern at the February hearing.

The parents, both of whom are parties to this case (as second and third respondents) do not have access to all the information available to the other parties and to the judge.  Some information has been redacted from the documents made available to the parents “because of certain matters M does not want discussed or disclosed to her parents”. I don’t know what that information is because it has also been withheld from observers.

At the last hearing, the judge was also unsure, on the basis of the paperwork before her, what the redactions were and hence what the parents did and did not know.

“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.”

At the end of the last hearing, she said: ” 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.“

So what happened at this hearing?

I watched the hearing from 11.16am when it started until the lunch break began at 1pm. I believe that the hearing continued in the afternoon, but I wasn’t able to observe then. So anything that was said or decided about closed material in the afternoon is not included in this blog post.

‘Closed material’ – the Guidance

The Court of Protection does have the power to withhold material in this way, but the starting point is that, in principle, all parties to proceedings should have sight of all materials upon which the court will reach its conclusions.  This is because:

1. The principle of open justice, “fundamental to the dispensation of justice in a modern, democratic society,”normally requires that a judge cannot read or hear evidence, or receive argument which is not before all the parties to the proceedings;
2. Securing the full participation of parties to proceedings, including by way of disclosure, not only enables them to present their case fully but also ensures that the court has the assistance of those parties in arriving at the right decision in relation to P’s capacity and best interests; 
3. In any case where there is a suggestion that the court may in reaching its decision proceed on the basis of materials adverse to a party, both common law fairness and Article 6 of the ECHR normally requires that that party should be able to answer that material by way both of evidence and argument

This is taken from recent guidance available here (Guidance for the Court of Protection: ‘Closed hearings’ and ‘closed material’). For me, part of the value of observing this hearing was seeing how this Guidance (into which I had some input) played out in practice – and in relation to a very different set of facts from those that prompted my participation in creating the Guidance (see “New Guidance on closed hearings from the Vice President of the Court of Protection“).

The Guidance continues:

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):

1. 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;
2. 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;
3. 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;
4. In all cases, the test for non-disclosure is whether it is strictly necessary to meet the risk identified by the court.

The July 2023 hearing

There had been some progress towards the “very rigorous thought and scrutiny” Mrs Justice Theis had asked for before the next hearing.

The position taken on behalf of M via her litigation friend the Official Solicitor (Emma Sutton KC of Serjeants’ Inn) is that the redaction of this information may be necessary to facilitate M’s full participation, and to promote her autonomy and independence.  This, she says, “trumps” the need for her parents to see all the materials.

A psychiatrist has been approached and offers a preliminary opinion that revealing this – currently redacted – information could lead to significant harm for M because of a risk of self-harm “if she feels unable to cope with negative emotions secondary to her family’s reaction”. 

The Official Solicitor is also looking at what steps can be taken by the care home staff to see if they could in some way be the conduit of the currently redacted information between M and her parents. It is (she said) “important to give M the tools to discuss the information currently withheld… We have been in discussion with the care home to see who would be best placed to support M with this”.

Acting for the local authority, Sally Gore of Fenners Barristers said that it was recognised that “to litigate, the parents are going to need this information”.  She also expressed concern that the local authority needs to build a good working relationship with the parents going forward and  “that is undermined by the fact that the parents know there’s information we have that we’re not sharing with them”.

The judge still seemed somewhat frustrated by the redactions and her impression was that “M believes she can keep these matters secret forever”.  She emphasised the need to have “open discussion with the parents, and at the moment, we can’t”. She said:  “The redaction issue needs to be grappled with before the next Case Management Hearing, with a view to the redactions being removed, so there can be meaningful discussion with the parents” – and in particular “the redaction issue needs to be dealt with before any placement options are approved by the court”. Returning home is one placement option; alternatives are either a Shared Lives placement or a supported living placement.

There is to be an in-person case-management hearing on Tuesday 17 October 2023 and a final hearing on 11-14 December 2023 (with a time estimate of 4 days).

It will be interesting to see how the issue of redaction has been handled.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 470 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia