KK v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 14 December 2020 |
| Neutral Citation | [2020] EWCOP 64 |
| Date | 14 December 2020 |
| Docket Number | Case No: COP1354556T |
| Court | Court of Protection |
[2020] EWCOP 64
IN THE COURT OF PROTECTION
Sitting as if from
Coverdale House,
East Parade,
Leeds
THE HONOURABLE Mr Justice Cobb
Case No: COP1354556T
Ben McCormack (instructed by Henry Hyams) for the Applicant/Appellant (KK)
Sophie Allan (instructed by Local Authority Legal Services) for the First Respondent (Leeds City Council)
Joseph O'Brien (instructed by Switalskis on behalf of the Official Solicitor) for the Second Respondent (DK)
Hearing dates: 30 November 2020
Approved Judgment
THE HONOURABLE Mr Justice Cobb
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
DK is a 19-year old highly vulnerable young woman with global learning disabilities, an autistic spectrum disorder, and associated profound needs. She is the subject of, and currently the only respondent to, Court of Protection proceedings; she has been found to lack litigation capacity and is represented by the Official Solicitor as her Litigation Friend. The proceedings have been brought by Leeds City Council (“the Local Authority” or “LCC”), in whose area DK currently lives. The Local Authority asserts that DK lacks capacity to make decisions about her residence, contact with others, and use of social media; it seeks declarations and welfare orders in these respects.
KK is DK's maternal aunt, but has been, for almost all of DK's childhood, her main carer. DK's mother died when DK was 4 months old. DK refers to KK as her ‘mum’ and to NK (KK's husband) as ‘dad’. DK last lived with KK three years ago, and they currently have contact with each other.
KK wishes to be joined to the proceedings concerning DK, and earlier this year she made an application for party status. This application was listed before His Honour Judge Hayes QC (“the Judge”) on 16 June 2020. By judgment dated 23 June 2020, the Judge refused KK's application for party status; on 2 July 2020 he refused permission to KK to appeal.
KK renewed her application for permission to appeal, which was placed before me for determination ( rule 20.4(2)(b) & 20.6(2)(b)/(5) COPR 2017). I directed that permission to appeal should be considered at an oral hearing, with appeal to follow if permission was granted. I heard that ‘rolled up’ application on 30 November 2020.
By this judgment, I set out my reasons for granting permission to appeal but dismissing the appeal. While I am satisfied that the appeal raises an important issue of procedure and practice ( rule 20.8(1)(b) COPR 2017) (see [42] below), I nonetheless conclude that the Judge was not wrong to proceed to determine KK's application as he did, nor do I consider that his conclusion could be faulted (see in particular [43]–[47] below).
Hearing before HHJ Hayes QC
KK's case for joinder and party status was set out in a detailed application supported by two witness statements; she was represented at the hearing before the Judge, as she has been at this appeal, by Mr Ben McCormack. For the reasons more fully rehearsed below (see [16]–[17]), the Local Authority and the Official Solicitor on DK's behalf opposed the application; they too were represented then, as now, by Miss Allan and Mr O'Brien respectively. At the hearing before the Judge, the Local Authority and the Official Solicitor presented, and sought to rely upon, information which, although acknowledged to be relevant to the issue before the court, they wished to keep confidential from KK (“the confidential material”). The Judge received this documentary confidential material, and read it. Neither KK nor her lawyers were given access to this material. The Judge gave a separate shorter judgment (which I shall refer to as the ‘supplementary judgment’) in which he expressed his view about this confidential material, and its significance to the decision.
A preliminary issue arose at this hearing as to whether I too should read this confidential material. No party argued that I should not, but Mr McCormack drew my attention to the speech of Lord Neuberger in Bank Mellat v HM Treasury (No.2) [2013] UKSC 38; [2014] AC 700 (‘ Bank Mellat’), in which he offered the following guidance at §70:
“On an appeal against an open and closed judgment, an appellate court should, of course, only be asked to conduct a closed hearing if it is strictly necessary for fairly determining the appeal. So … any party who is proposing to invite the appellate court to take such a course should consider very carefully whether it really is necessary to go outside the open mate rial in order for the appeal to be fairly heard. If the advocate for one of the parties invites an appellate court to look at the closed judgment on the ground that it may be relevant to the appeal, it is very difficult for the court to reject the application, at least without looking at the closed judgment, which involves the initiation of a closed material procedure, which should be avoided if at all possible” (emphasis by underlining added).
At the hearing of the appeal, Miss Allan (supported in this regard by Mr O'Brien) argued that it was indeed necessary for me to consider the confidential material. I did not of course conduct a ‘closed hearing’ as such. I confirm that I have read the confidential material in the unredacted bundle, together with the supplementary judgment prepared by the Judge.
HHJ Hayes QC's judgment
The Judge gave a detailed reserved judgment (i.e. a judgment also available to KK) setting out his reasons for refusing KK party status.
The opening paragraphs of the judgment outline DK's troubled history, the Judge recording that DK had spent the greater part of her childhood in the primary care of KK, at her home which is in another part of the country; it was believed (indeed I believe that KK accepts) that in her teens DK became a victim of Child Sexual Exploitation. At the age of 16, DK was received into the care of relevant local authority. She made allegations against KK's husband and son of sexual abuse; these were investigated by the police over a period of 18 months (during which time KK and DK had no contact) before the police decided to take no further action. Given her troubled presentation, DK experienced a range of placements, sadly but predictably in different locations around the country. DK's ongoing exposure to sexual exploitation and trafficking led to involvement by the National Referral Mechanism (the framework for identifying and referring potential victims of modern slavery, ensuring that they receive the appropriate support). In October 2019 DK moved placement once more, this time to Leeds, after she disclosed an imminent plan to marry an older man whom she barely knew. An urgent application was made to the Court of Protection when DK later announced that she wished to return to KK's home for Christmas 2019; at an urgently convened court hearing, DJ Gardner determined on an interim basis that DK lacked capacity in respect of that decision. Shortly thereafter, KK applied to be joined to the process.
In his judgment, the Judge then recorded the legal test in relation to joinder thus:
“[14] Rule 9.15(1) of the Court of Protection Rules 2017 (“ COP Rules 2017”) provides that “Any person with sufficient interest may apply to the court to be joined as a party to the proceedings”.
[15] That rule only founds the right to apply. It does not automatically follow that the person who can show “sufficient interest” must be joined as a party. Rather, that question falls to be determined by the court applying rule 9.13(2) (quoted below).
[16] Rule 9.15(1) operates to screen out applications which cannot meet the “sufficient interest” test. If the court is not satisfied that the person who makes an application (or purports to do so) has “sufficient interest” then that is the end of the matter. To give an obvious example, someone unknown to P (or with only fleeting/trivial involvement in P's life) would not satisfy the “sufficient interest” test. They would have no right to make an application and would accordingly fall at that “first hurdle”.
[17] If a person overcomes this first hurdle of “sufficient interest”, the application is properly made. But it does not follow that the applicant must be joined. The court then must apply a further test when deciding if to join that person as a party. That test is found in rule 9.13(2) of the COP Rules 2017 which provides:
“The Court may order a person to be joined as a party if it considers that it is desirable to do so for the purpose of dealing with the application” (underlining added) (in original).
[18] The language used in rule 9.13(2) conveys that the court has a broad discretion when determining if a person should be joined to the proceedings. As Mr McCormack properly conceded during oral submissions, even if that person can show a close relationship with P, this does not give rise to an “entitlement” or “right” to be joined or any “presumption” that joinder should happen.” (emphasis by underlining added).
The Judge next considered (at paragraphs §19 to §20 of his judgment) the ‘overriding objective’ contained in rule 1.1 of the Court of Protection Rules 2017 (“ COPR 2017”), namely the objective “to deal with a case justly … having regard to the principles contained in the [ Mental Capacity Act 2005]” (the ‘ MCA 2005’). He quoted rule 1.1(3) in full, which includes (a point he later emphasised) the...
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AA v London Borough of Southwark
...for closed hearings in the Court of Protection has been the subject of a recent decision by Cobb J in KK v Leeds City Council [2020] EWCOP 64, handed down on 14 December 2020, after the orders under appeal before us. The facts of that case were somewhat similar to those in this appeal. The ......