Prohibitive Transparency Orders: Honest mistakes or weaponised incompetence? 

by Daniel Clark, 28th June 2024

I try not to see conspiracy behind the multiple transparency failures of the Court of Protection. The judicial system is busy and overstretched, and mistakes are (unfortunately) inevitable: links won’t be sent in time, listings won’t be always accurate, video links won’t always be set up.

However, I must admit that I’m struggling when it comes to Transparency Orders. Time and again, we’re being sent Transparency Orders that stop us identifying public bodies. In 2024 alone, we’ve been told that we can’t identify Councils, the Public Guardian, and even the Official Solicitor. 

This is more than an administrative error: somebody has drafted the Order, the parties have (presumably) agreed to it, and then the judge has ‘ordered’ it. That’s a lot of people who have seen its prohibitions so, it’s fair to assume, they must have been agreed upon for good reason. 

Or is fair to assume that at all? 

In this blog I’m going to write about two cases where I’ve asked for a Transparency Order to be varied. What I describe isn’t unique but it will hopefully show that Transparency Orders seem to be written on auto-pilot. That isn’t good for open justice, and it isn’t good for court time.

First I’ll explain what a Transparency Order is. For those of you who are familiar with how the Court of Protection works, you might like to skip to the next section, where I’ll explain the first of two cases. Finally, I’ll ask: is this all an honest mistake, weaponised incompetence, or something altogether different? 

What are Transparency Orders? 

Transparency Orders are injunctions made by the court intended to protect the identity of the protected party (P) from becoming widely known. They engage in a delicate balancing act between two articles of the Human Rights Convention: a right to privacy (Article 8 rights) and a right to free expression (Article 10 rights). You can see the Transparency Order template here: https://www.judiciary.uk/wp-content/uploads/2017/11/cop-transparency-template-order-for-2017-rules.pdf

When authorising Transparency Orders, judges consider the balance between P’s right to privacy and the rights of others (family members, the public,  the media and indeed P themself) to talk about court proceedings. This means that Transparency Orders will usually only prohibit the publication of information that identifies, or is likely to identify, P, or her family, or where any of these people live, or are cared for, or their contact details. Unfortunately, this has the effect that P’s family members are unable to talk about the case if they’re using their real names, as “Anna”, a member of our core team, has described (“Gagged – in whose best interests?“).

Victoria Butler-Cole KC has produced an annotated draft Transparency Order that also makes reference to what Transparency Orders don’t usually prohibit. She notes that “normally you will be allowed to name the local authority, CCG or NHS Trust who is involved in the case”. This isn’t something new: this draft was published in 2016. 

It’s important that we can talk about the involvement of public bodies in Court of Protection cases. After all, they’re funded by taxpayers and therefore accountable to the public. If they act in secret, their actions cannot properly be said to be open to scrutiny.  

Sometimes, P will be very well known in her local area. In these instances, a case might be made that a local authority should not be identified because to do so would increase the risk that P may be identified. This is, however, a very rare situation, and it’s usually the case that we can agree not to publish other pieces of information about P in order to safeguard P’s Article 8 rights while also ensuring our Article 10 rights.

One of the standard provisions in a Transparency Order (usually §10) is that “any person affected by this order may apply to the Court for an order…that: (i) varies or discharges this order or any part or parts of it”. I am affected by each Transparency Order that I receive because it restricts my Article 10 rights in some way.

I am therefore in a position to ask a judge to vary a Transparency Order, as I did in the two cases that I will now discuss. 

Case 1: The London Borough of Lambeth steps into the light

This case (COP 14116349) concerns a young woman who was removed from the care of her mother, and put into a care home. We’ve blogged about it before (“Two law students’ first observation of a COP hearing“).

There has been such a significant interference in P’s family life that it is clearly in the public interest to know which local authority is acting in this case. 

There is also some “closed material”  in this case, i.e. P’s mother (who is a party) is not being told something relevant to the case, and the Metropolitan Police have asked the court to keep it that way (for now). 

On Wednesday 22^nd May 2024, this case was listed before Mr Justice Keehan, who was sitting remotely (via MS Teams) at the Royal Courts of Justice. I received the link and, after chasing it, I also received the Transparency Order. 

I was disappointed by what I saw. The Order was sealed by DJ Eldergill in July 2023, and prohibited identification of ‘any party to these proceedings’ (see 6(i)(c).  This is what it looks like:

This means that I am prohibited from  identifying the local authority in this case. I also believed it meant that I could not identify the Official Solicitor, who represented P as her litigation friend. This is because I have seen the Official Solicitor being described as added as a party to proceedings, though I understand that technically P is a party and the Official Solicitor is P’s litigation friend.  In any event, neither the judge nor the barristers corrected me, which I take as implicit acknowledgment that my understanding was correct. 

I immediately sent an email, marked as “URGENT”,  for the attention of the judge, with permission for it to be shared with the parties. After making the judge aware that I’m familiar with the need to balance Article 8 and Article 10 rights, I wrote:

“My concern is with the prohibition on identifying the parties to these proceedings: see §6(i)(c) “any parties to these proceedings”.  Since both the Official Solicitor and the Local Authority are parties to this proceedings, the effect of §6(i)(c) is that I am banned from naming them. This is highly unusual, and is likely effectively to prevent reporting the proceedings altogether. I also find it extremely difficult to imagine any situation when it would be in accordance with open justice to ban reporting of the fact that the Official Solicitor is a party to proceedings.

Official Solicitor

Please note that this case has already been blogged about: https://openjusticecourtofprotection.org/2024/01/31/two-law-students-first-observation-of-a-cop-hearing/  by two members of the public (not part of the core OJCOP team) who also completed one of our observer feedback forms, and they responded to a question on the form about whether they were sent a TO or given information about reporting restrictions that “there was no mention of a Transparency Order”. As you will see, the blog does refer to the participation of the Official Solicitor, so the information that the OS is a party to the case is already in the public domain.

Local Authority

I am further concerned that the prohibition at §6(i)(c) will prevent me from identifying the Local Authority in this case. Is there an argument to the effect that identifying the local authority would enable identification of P – thus breaching P’s Art. 8 privacy rights? If so, does naming the local authority constitute so high a risk to P’s Art 8 rights that the balance tips in favour of this restriction of the public’s Art 10 rights to know the name of the public body involved?  I appreciate it is likely that the Art 8/Art 10 balancing exercise has already been comprehensively undertaken but would like to be reassured that this is so.  Local Authorities are public bodies, funded by our taxes and accountable to the public. I believe that the name of the public body is a matter of legitimate public interest and so it is of some concern to me that we are prevented from reporting the name of the LA in this case. I note further that the name of the local authority is on the face of the Order.“

The judge addressed my email fairly early in the hearing. Cutting off submissions by counsel for the local authority, he acknowledged my application to vary the Transparency Order, and asked counsel whether he had “any observations” about my application. Based on my contemporaneous notes, this is what happened next:

Counsel for the local authority: In respect of naming the local authority, we’re adopting a neutral position. It’s a matter for the court.

Judge: [Counsel for P], do you have any observations?

Counsel for P: There are no observations on behalf of the Official Solicitor. 

Judge: [Counsel for P’s mother], I don’t suppose you do?

Counsel for P’s mother: No observations.

Judge: I’m content to vary the Transparency Order. Thank you very much for raising it. 

With that, I had permission to name the London Borough of Lambeth as the applicant in this case, and also to identify that the Official Solicitor represented P. 

Case 2: The long fight to name Wolverhampton City Council

This case (COP 14158444) concerns an older woman (JG) who lives in a care home. She was challenging her deprivation of liberty under s21a of the Mental Capacity Act 2005, and wants to return home. JG was represented by her Accredited Legal Representative (ALR). 

On Wednesday 10^th April 2024, I asked to observe this hearing, which was listed before HHJ McCabe, sitting remotely (via MS Teams) at Wolverhampton Family Court. I received the link and Transparency Order, which was approved by HHJ McCabe in February 2024. 

Upon opening the Transparency Order, I saw (to my dismay) that it prevented me from identifying the local authority. As I’ve done before and since, in this situation, I sent an email for the (urgent) attention of the judge.

In my email, I also acknowledged that the Transparency Order prohibited me from identifying the care home at which P resides. However, the Order specifically named the care home, meaning that it told me P’s address.

This troubled me because I would be furious if I found out my personal address was being publicised in this way, and so I felt that the Court should have its attention drawn to it. 

Between my email and the hearing beginning, something went wrong. The judge only received my email as the hearing was starting (she was reading it as she joined the link) and the parties had not received it. She did not feel happy addressing it at this hearing but did give me permission to file a position statement by 4pm on 21^st May 2024. 

With guidance and feedback from this Project’s core team, I set to work. I was also asked by the parties to send me the original email so that they could begin to take instructions, and I did so. When I heard nothing further from them, I assumed that there must be a concern P could be identified from reporting of the name of the local authority. 

In my position statement, I rehearsed the arguments about finely balancing P’s Article 8 rights alongside my Article 10 rights.  I then developed this further:

“There may be a concern about the risk of jigsaw identification: namely, that the identification of Wolverhampton City Council, alongside other details of the case, could lead to the identification of JG. This seems unlikely on the facts of this case.

In A Local Authority v A Mother [2020] EWHC 1162 [FAM], Mr Justice Hayden considered the risk of jigsaw identification. He wrote that: 

“The potential for jigsaw identification, by which is meant diverse pieces of information in the public domain, which when pieced together reveal the identity of an individual, can sometimes be too loosely asserted and the risk overstated. [J]igsaws come with varying complexities. A 500-piece puzzle of Schloss Neuschwanstein is a very different proposition to a 12-piece puzzle of Peppa Pig.  By this I mean that while some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote” (§18). 

According to the 2021 census, Wolverhampton has a population of around 263,700 people.^[i] According to carehome.co.uk, there are 73 care homes in Wolverhampton.^[ii] This means that this case has a very complicated jigsaw, more akin to a 500-piece puzzle than a 12-piece Peppa Pig puzzle. It is very unlikely that somebody reading about “JG” and “Wolverhampton City Council” would, with any confidence, be able to identify JG. Furthermore, this would be insufficient to identify where JG lives. 

In the event of concern that jigsaw identification is a real risk in this case, I would ask the court to consider ways of protecting JG’s identity other than the current draconian prohibition on naming the public body (i.e. prohibiting the publication of other potential pieces of the ‘jigsaw’ e.g. the initials JG, or her precise age).”

Holding my breath, and assuming I’d be facing some stiff opposition at the hearing, I waited for the parties to file their position statements in response. 

First came the position statement of the Accredited Legal Representative, on behalf of JG, who expressed “no objection…The ALR notes the contents of Mr Clark’s position statement and in particular the authority of A Local Authority v A Mother [2020] EWHC 1162 (Fam)”. In some cases the identification of a local authority may risk the identification of P, but this was seen by the ALR as only “a minimal risk” here. 

On the morning of the hearing came the position statement of the local authority. This also recognised the authority of Mr Justice Hayden’s judgment in A Local Authority v A Mother. Wolverhampton City Council “respectfully agrees with the view of the ALR”, and therefore did not oppose my application so long as neither JG nor her social worker were identified. 

At the next hearing on 4^th June 2024, proceedings were concluded. The court found it was in JG’s best interests to remain in her current care home, alongside continuing work to meet her cultural and spiritual needs. The court also agreed that the Transparency Order ought to be varied.  

And that was that. After almost 2 months of waiting, I could finally say that Wolverhampton City Council was the respondent local authority in this case.

Honest mistakes or weaponised incompetence?

I found these two experiences extraordinary.

Not one of the parties in either case had anything to say about these highly prohibitive Transparency Orders. They offered neither an explanation nor justification. In fact, in the second case, the parties explicitly acknowledged that the risk of identifying P was so minimal that such a prohibition couldn’t be justified.

And yet, these prohibitions didn’t appear in the Order by magic, did they? Somebody put them there. A judge approved them. So, the question becomes, why put them in if there’s no need for them? 

Is it just an honest mistake? Well, it could be. Many Court of Protection lawyers and judges also practice in the family courts, which tend to prohibit identification of public bodies. If a Transparency Order is being filed in a rush, perhaps they’re being written and approved on auto pilot.

But that would mean an awful lot of mistakes.

Having seen so many of the types of Transparency Orders such as those described above, it’s hard not to think that some public bodies are paying lip service to transparency and open justice. The onus for making sure that open justice actually materialises in practice is left with members of the public.

The problem with that is that it can be very intimidating to make the types of application I’ve described. I’m not legally trained – but in both of these cases, I was essentially telling the court, “I think you, and the lawyers in this case, are wrong”. That can be an intimidating thought (and it was when I first started challenging these Transparency Orders but I soon moved past that). 

It also takes up time: time that isn’t freely available to members of the public who are trying to promote transparency in the Court of Protection but who also have other responsibilities. It took a while to write a position statement, and edit (and re-edit) it. And for what? For the parties to say they had no objections. 

So, is this weaponised incompetence? According to Psychology Today, weaponised incompetence ‘is when someone knowingly or unknowingly demonstrates an inability to perform or master certain tasks, thereby leading others to take on more work’. 

This does seem to fit the bill. Somebody somewhere has performed a task that flies against the standard Transparency Order: they are unable to master this task. As a result, others (in the cases above, me) have to take on more work to address the task not being done as it should. 

Regardless of how we understand these prohibitive Transparency Orders, there’s one thing that’s certain. In the words of DJ Geddes, lawyers need to “just stop” routinely anonymising public bodies: “the more [Transparency Orders] that are right, the less time we have to spend on them when there’s much more important things to be thinking about including the actual facts of this case.”

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.

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^[i] _{https://www.ons.gov.uk/visualisations/censuspopulationchange/E08000031/ [13^th May 2024]}

^[ii] _{https://www.carehome.co.uk/care_search_results.cfm/searchtown/Wolverhampton [13th May 2024]}