P (Discharge of Party), Re

The Court of Appeal held that the judge below acted unlawfully in discharging the appellant (P's mother) as a party to Court of Protection proceedings without notice, without disclosure of the evidence relied on and without providing reasons. The court applied principles derived from the Mental Capacity Act 2005, the Court of Protection Rules 2017 and established common law and Convention-based duties of procedural fairness (Articles 6 and 8 ECHR). The appellate court accepted that, given the emergence of very serious and potentially damaging material, it could have been necessary to withhold information from the appellant or to suspend contact pending inquiry, but concluded that the decision to remove party status without any opportunity for representations went beyond what strict necessity permitted. The appeal was allowed and the appellant was restored as a party, subject to directions to protect P's interests while the parties consider next steps.

This is an appeal from orders made by Hayden J in the Court of Protection on 3 November 2020 and 10 December 2020 by which the judge (i) discharged the appellant (P's mother) as a party and (ii) adjourned the appellant's application for reasons for that decision. The underlying proceedings concerned P, a highly vulnerable young adult with cerebral palsy and severe eating disorder issues, and involved contested questions about residence and contact after safeguarding material was disclosed to the court by the local authority and clinical respondents.

Key facts and procedural posture:

• P had been the subject of Court of Protection proceedings since April 2019. The appellant was joined as a respondent and had participated in proceedings for over 18 months.
• A few days before the listed hearing on 3 November 2020 new safeguarding information was disclosed to the local authority and the trust and provided to the judge and the Official Solicitor but not to the appellant or her lawyers. That information raised serious concerns about P's safety in relation to the appellant's partner and the newborn baby of the appellant.
• At the 3 November hearing the judge conducted part of the hearing in private, excluded the appellant's advocates from part of that hearing, and thereafter announced his provisional conclusion that contact between P and the appellant was inimical to P's best interests and that the appellant should be discharged as a party. No prior notice of any application to discharge the appellant had been given and the appellant was not provided with the evidence relied on.
• The appellant filed written representations post-hearing and, when no reasons were delivered, applied for a judgment setting out reasons; the judge adjourned that application on the ground that releasing reasons at that stage was inconsistent with P's best interests.

Issues framed by the Court of Appeal:

• Whether the judge's decision to discharge the appellant as a party without notice, without disclosure and without an opportunity to make representations was compatible with procedural fairness and the overriding objective in the Court of Protection Rules 2017.
• How the principles of open justice, natural justice and Articles 6 and 8 ECHR apply in Court of Protection proceedings where P's best interests and safety may justify withholding sensitive material.
• Whether the test of strict necessity (as articulated in Re B and RC v CC) was satisfied.

Court's reasoning and conclusions:

• The Court accepted that the Court of Protection has wide case management powers (including to act on its own initiative and to withhold disclosure in exceptional cases) and that P's best interests may require withholding sensitive material. It also emphasised the statutory best-interests framework in the Mental Capacity Act 2005 and the court's overriding objective under the Rules.
• However, the court concluded that discharging a party who had been actively engaged in proceedings for an extended period, without notice, without disclosure of the evidence and without reasons, was not shown to be strictly necessary. Alternative and less intrusive measures were available (temporary suspension of contact, redaction or a 'gist', short adjournment, use of a special advocate or limited closed material procedure), and the judge ought to have considered and, where possible, adopted such measures before resorting to discharge.
• The Court found that the judge had gone too far in discharging the appellant without affording her procedural protections; the subsequent opportunity to make written representations post hoc was insufficient. The appeal against the discharge order was allowed, the appellant was restored as a party, and the Court directed a 28-day period during which no further evidence or information should be served on the appellant to allow respondents to determine appropriate next steps while protecting P's interests.

Appeal allowed. The Court of Appeal held that the judge below was not entitled to discharge the appellant as a party without notice, disclosure of the evidence relied on or an opportunity to make representations. Although withholding sensitive material and suspending contact could have been justified by P’s best interests, discharging a long-standing active party without those procedural safeguards went beyond what strict necessity permitted. The appellant was restored as a party and the court directed interim protective measures to safeguard P while the parties consider the appropriate course.

Appeal from the Court of Protection (Hayden J) (COP1337884). The appellant filed notices of appeal on 22 December 2020; permission to appeal was granted on 1 February 2021. The appeal was listed for hearing and heard on 9 March 2021; judgment handed down 16 April 2021 ([2021] EWCA Civ 512).