A ‘closed hearing’ to end a ‘closed material’ case

By Celia Kitzinger, 18th December 2023

M is keeping something private from her parents. She doesn’t want them to know what it is.  

The lawyers in court all know what it is.  So does the judge.  But observers like me haven’t been told. 

And her parents still don’t know.  The court papers shared with them have been heavily redacted.

So,  this is a ‘closed material’ hearing – meaning there’s material before the judge that has not been shared with one of the parties (the parents).

This is a problem for the court because all parties in a case are, normally, supposed to have access to the same information. It’s part of what’s meant by ‘equality of arms’.

This is absolutely clear from the Vice President’s Guidance in February 2023:

“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.” §6 Guidance for the Court of Protection: Closed hearings and closed material.

Background

This is the third hearing I’ve watched in this case^[1] (COP 13907545) at which Mrs Justice Theis  has had to consider what to do about the ‘closed material’ – and from what I’ve already heard of the case, I can absolutely understand why there might be aspects of M’s life she doesn’t want her parents to know about.  

I’ve heard the summary from the local authority (Luton Borough Council) about M, who is in her late 20s with “a mild learning disability”: “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”. 

She’s now living in a residential nursing home while she receives rehabilitation for serious injuries sustained when she jumped from her first-floor bedroom window, while she was living at home in December last year. 

She’s currently in the process of getting divorced from her cousin, and the court is expecting to receive a Nadra Card providing final confirmation of divorce under Sharia law.  She’s also the subject of a Forced Marriage Protection Order.

At the July hearing, there was some attempt to deal with the closed materials by supporting M to tell her parents whatever it is that she’s currently concealing from them.  The Official Solicitor’s view was that it’s “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”.  

The local authority view, back then, was that “to litigate, the parents are going to need this information”.  

The judge also 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”.  

At that point, it was not clear that residence was something that M had capacity to decide for herself, and the court was contemplating what options might be in M’s best interests, including returning home, a Shared Lives placement and a supported living placement.

Hearing on 17^th October 2023

From the opening summary provided by Katie Scott of 39 Essex Chambers on behalf of the local authority (Luton Borough Council) , it was clear that M has still not told her parents the private information.  They are still receiving redacted copies of court documents.  

The local authority was seeking an order from the court to sit in private to consider the application for permission for the applicant and the Official Solicitor to continue to provide redacted documents to M’s parents.  “The court will need to consider what material is being redacted and whether it meets the legal test”, she said – and she added “the parents will need to be absent”. 

“So what is being requested is for me to have a hearing without the parents and in private to look at that issue”, said the judge. That’s a request for  a “closed hearing” – i.e. a hearing which one of the parties is excluded from.

The judge mentioned the Guidance by Mr Justice Hayden on closed hearings and closed material hearings and said:  “I think I’m going to have to have a hearing in private so I can understand what the redacted material is and the competing issues I’m going to have to balance”.

So, at that point, I had to leave the hearing (and so did M’s parents).

When I rejoined, counsel for the local authority was talking the judge through the Order.  If there was any ‘report back’ to the parents – there surely must have been! – I had missed it, as I was dependent on somebody to tell me when the “closed hearing” ended so that I could rejoin the link.  That was frustrating.

What I pieced together, though, from what I heard – and from the Order I requested and received shortly afterwards, was this.

The only issue now before the court is M’s care and support needs – because she has been found to have capacity to make decisions about where she lives and who she has contact with (and everything else).  So, all the information in the bundle in relation to decisions that M has capacity to make are “historic”, and should be removed from the bundle for future hearings.  This includes the documents that have been redacted.

Once the redacted documents (which, it seems, relate to where M lives and who she has contact with) are removed, all parties will have access to the same material.

The parents won’t get access to the information M doesn’t want them to know “because it is not relevant to the decisions made by this court”.   And, going forward, all documents are to be “provided in their entirely to all the parties”. 

M is now fit for discharge from her rehabilitative residential care facility and may have been discharged by the time of the next hearing.  As she has capacity to do so, she will decide for herself where she will live.  (Another capacity assessment will be carried out as to whether M can make a tenancy agreement, considering the guidance provided by DJ Batten at §101 in LB Islington v QR [2014] EWCOP 26).  Care will be provided for her in the setting she chooses in accordance with her best interests –  and those arrangements will be reviewed by the Court at the next hearing. Insofar as they may constitute a deprivation of her liberty, that would require authorisation of the court.

At the next hearing, the court will consider any remaining issues under dispute, the Forced Marriage Protection application, and whether another hearing (a four-day final hearing currently listed for February 2024) is actually needed.

Reflection

It was interesting to me that a hearing based on “closed materials” was averted without actually informing the excluded parties about what the closed material contained.  The parents still don’t know what it is their daughter doesn’t want them to know.  All they’ve been told is that, since she has capacity to make her own decisions about where she lives and who she has contact with, that information isn’t relevant to the decisions the judge has to make – so it’s no longer part of the material before the court.  It’s an interesting outcome, and one I don’t think is explicitly contemplated in the Guidance.

I don’t really understand why this decision was only reached at the third hearing at which the redacted material was considered, since declarations of M’s capacity  – including her capacity to make decisions about where she lives, who she has contact with, and her capacity to engage in sex and make her own decisions about marriage – were made by the court on 19^th October 2022, i.e. before the issue of redacted material was before the court.  I think there may have been some dispute about capacity, but that doesn’t seem to have been pursued. Or perhaps the relevance of the redacted information has been reassessed?

It’s good for M’s autonomy, of course, that the court has respected her wish for her parents not to know some aspect of her private life. I think there may have been some attempts to persuade her to tell them – but nobody has forced her, or gone behind her back to let them know. If I were M, I would feel positive about this.

But I suspect it is difficult for M’s parents to know that there’s something M isn’t telling them – something known (apparently) to the care home staff, as well as to the lawyers and to the judge.  And now – unless or until M tells them – they will probably never know.  It might feel like a sleight of hand that the court has found a way forward that obviates the pressure to share that information.  I wonder if they will feel confident that the judge – who knows this information – won’t take any account of it in arriving at whatever decisions she needs to make going forward.

When I look back at what was said in earlier hearings, it seemed that some people (including the judge and the Official Solicitor) felt it was important for M to share this information with her parents.  Acting for the local authority, Sally Gore of Fenners Barristers said at the last hearing 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”.  That’s now going to remain the case. And I commented at the last hearing that the judge “seemed somewhat frustrated […] by her impression that “M believes she can keep these matters secret forever””.  But now she can!    The technical legal implications of M not sharing this information seem to have been fixed – but I wonder about the personal, social and familial implications of it all.

It’s hard to know what to make of all this because I don’t know what the closed material is all about – but it leaves me somewhat concerned that there’s an unresolved issue lurking in the background of this case, which may yet cause problems for M.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

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^[1] _{The first was 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”).  The second was on 27th July 2023 (Closed Material Hearing: A ‘forced marriage’ hearing before Theis J): the judge said then that a key issue to be resolved before the final hearing concerned redacted material in the court bundle.}