AA v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Warby,Lord Justice Peter Jackson |
| Judgment Date | 16 April 2021 |
| Neutral Citation | [2021] EWCA Civ 512 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/2156 and 2157 |
| Date | 16 April 2021 |
[2021] EWCA Civ 512
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
The Honourable Mr Justice Hayden
COP1337884
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice Warby
Case No: B4/2020/2156 and 2157
In the Matter of P (Discharge of Party)
Timothy Nesbitt QC and Alex Cisneros (instructed by Bindmans LLP) for the Appellant
Katherine Barnes (instructed by Local Authority Solicitor) for the First Respondent
Fiona Paterson (instructed by Edwards Duthie Shamash) for the Second Respondent
Nicola Greaney (instructed by Bevan Brittan LLP) for the Third Respondent
Stephen Cragg QC as Special Advocate (instructed by the Special Advocate Support Office) for the Appellant
Hearing date: 9 March 2021
Approved Judgment
This is an appeal against two orders made in proceedings in the Court of Protection about a highly vulnerable 19-year-old woman, hereafter referred to as P. The appellant is P's mother who was joined as a respondent to the proceedings at their inception in April 2019. By the first order, dated 3 November 2020, the judge, Hayden J, the Vice-President of the Court, discharged the appellant as a party to the proceedings. By the second order, dated 8 December 2020, the judge adjourned the appellant's application inviting him to provide a judgment setting out his reasons for discharging her as a party.
The circumstances in which the appellant was discharged as a party were highly unusual. The order was made by the Court on its own initiative, without an application by any party. The appellant was given no notice that the order was going to be made, no notice of the evidence on which the Court relied when making the order, and no opportunity to make representations before it was made. No judgment was delivered at the hearing on 3 November and the appellant was given hardly any indication of the reasons why the order was made. At the same time as making the order, the judge directed that, if the appellant wished to make any representations in respect of the order, she should do so within three days, by 6 November. Despite having no copy of the order, nor any notice of the evidence supporting or the reasons for the order, the appellant's lawyers complied with that direction. A fortnight later, having heard nothing from the Court, they sent an email asking when they might expect a decision following the filing of their submissions. In reply to a further email dated 27 November, they received an email from the judge's clerk stating that the judge was unclear what they were inviting him to do and that, if they wished to make an application, he would try to accommodate it. On 8 December, the appellant's solicitors filed a notice of application asking for a judgment relating to or reasons for the order dated 3 November and any further decision made in the light of the submissions filed on 6 November. The second order under appeal, adjourning the application for a judgment, was made in response to that application.
The principal explanation for the judge adopting this highly unusual, if not unique, course was that the other parties to the proceedings had disclosed information to the court without notice to the appellant and the judge concluded that, if the information was disclosed to the appellant, there was a risk that P, who is, as I have already noted, a highly vulnerable young woman, would suffer serious harm.
On 22 December 2020, the appellant's solicitors filed notices of appeal against the two orders and, on 1 February 2021, I granted permission to appeal. But the preparation and conduct of the appeal has presented particular challenges. Although the appellant is now aware of part of the information on which the judge relied in making the order discharging her as a party, other parts have still not been disclosed and the Court of Protection remains concerned about the risk of harm to P if there is further disclosure. In addition, there is now a linked police investigation and the investigating officers have raised concerns about any further disclosure at this stage. For these reasons, this Court decided to conduct part of the hearing in closed session, with the appellant being represented in that session by a special advocate.
In the event, it has been possible to decide the appeal and give public judgments setting out the reasons for our decision without reference to the material disclosed in the closed session. This judgment will therefore focus principally on the issues arising on the substantive appeals. In addition, however, it provides an opportunity to set out a description of how this Court has proceeded in these unusual circumstances which may be of assistance in any future proceedings of this kind which require a form of closed procedure. It appears that this is the first case in which a special advocate has been instructed in the Civil Division of the Court of Appeal.
Background
It is unnecessary for the purposes of this appeal to set out the background in detail.
P is a 19-year-old woman suffering from cerebral palsy, atypical anorexia, post-traumatic stress disorder and selective mutism. In August 2018, when she was 16 years old and living at home with the appellant, she was made subject to a child protection plan under the category of neglect. In the course of carrying out its assessments, the local authority became aware of allegations that P had been sexually abused by a male visitor to the family home. In April 2019, P's condition had deteriorated to such an extent that the local authority decided to issue proceedings in the Court of Protection. On 9 April, P was admitted to a paediatric medical ward of a hospital close to her home, where her body mass index was calculated at 10.9. Her treating psychiatrist described her as one of the most underweight patients his specialist service had ever seen. At the first directions hearing, P and the appellant were joined as first and second respondents to the proceedings, with the Official Solicitor acting as P's litigation friend. At the hearing, Hayden J made an interim declaration under s.48 of the Mental Capacity Act 2005 to the effect that there was reason to believe that P lacked the capacity to conduct the proceedings and to make decisions with regards to residence, care and contact. He made an order that she be removed from the family home and placed in a residential unit provided by the local authority. He further ordered that direct contact between P and the appellant be supervised and limited to once a week. Indirect contact, however, by telephone and social media continued without restriction.
On 30 September 2019, the Mental Health Trust responsible for P's psychiatric care as an outpatient was joined to the proceedings as third respondent. At a two-day hearing in October 2019, the interim declarations and orders were extended. In a judgment at the conclusion of the hearing the judge observed that the relationship between P and the appellant had been potentially associated with the cause of the eating disorder. After that hearing, P started therapy with Ms X, a psychotherapist at the Trust's hospital. At a further hearing in December 2019, the interim declarations on capacity were extended again, with the intention that they be re-assessed once P had completed her therapy with Ms X. At the end of 2019, P turned 18 years of age.
During 2020, P remained living at the residential unit and her contact with the appellant continued on the same basis – direct contact supervised but indirect contact unrestricted. Contact arrangements in 2020 were affected by the Covid-19 pandemic.
Meanwhile, two further psychiatrists were instructed, one, Dr J, to carry out an assessment of capacity and whether it was vitiated by the appellant's influence, and the other, Dr A, to assess the relationship between P and her mother and how it should be managed in future. In his report, Dr J expressed the opinion that P had capacity to make decisions about contact with family members including the appellant. He observed that the interaction between P and her mother was less fraught, adding that:
“P understands contact with her mother and family members as helpful and fulfilling her basic needs to be part of a family and not to be isolated, which would be terrible and something she fears.”
He described the relationship between P and the appellant as “very close and enmeshed”, adding that P appeared dependent and closely aligned to her mother. Dr A thought there might be a “complex attachment relationship” between mother and daughter, but saw
“no evidence … of the kind of malignant over-involvement that can sometimes lead to interference in a child's medical treatment.”
Dr A thought that the positive elements in the relationship had contributed to P's recovery. At that point, the clinicians and experts envisaged a gradual increase in contact. Dr A observed that it was possible that P may want to see her mother at some times and not at others, adding that:
“then she may need support to have a flexible relationship with her mother (much like any 18-year-old who has left home.)”
On 24 June 2020, following these reports, the proceedings were adjourned again to allow the therapy to continue before further consideration was given to the extension of the declarations and orders. It was declared in the...
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