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The Court of Protection and transparency

Lauren Gardner analyses a Court of Protection ruling on whether proceedings in relation to a 21-year-old woman should be open to the public and whether the judgment should be published.

In Kent County Council v P & Anor [2022] EWCOP 3 (04 February 2022) P was a 21-year-old woman who had been found in a state of extreme neglect in summer 2019 at her parents’ home. At the time of these proceedings, P was living in a flat with a team of carers. P suffered both physically and mentally as a result of her past traumatic experiences. P had been assessed as lacking capacity in relation to care and residence, property and affairs, decisions about contact with her parents and litigation capacity. The issue in the current proceedings was whether the proceedings should be open to the public and whether this judgment should be published.

Kent County Council brought an application in March 2020 seeking a deprivation of liberty authorisation and a declaration that it is in P’s best interests to live and receive care at her current placement. Mrs Justice Lieven DBE first heard the case in September 2020, and decided that it should be heard in private (contrary to the usual practice in Court of Protection) due to the sensitive issues and media interest. Mrs Justice Lieven was particularly concerned about the potential impact on P if there should be any media commentary which might come to her attention and cause her distress.

At a hearing in October 2021, the judge was concerned about the length of time (over 2 years) it was taking for the police and CPS to carry out their investigation and reach a charging decision. Mrs Justice Lieven DBE decided at that time to keep the matter in private but noted that she would revisit the matter at the next hearing in November 2021.

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Kent County Council considered that these proceedings should continue to be conducted in private, pointing to the risk of P’s identification and P’s own concerns about her privacy. The Official Solicitor, on behalf of P, agreed with this position. Kent Police also considered that the case should be heard in private, citing the potential for inference with the integrity of any future criminal trial.

The judge decided that the press should be allowed to report the proceedings and the public should be allowed to attend subject to an appropriate reporting restriction order. In her judgment, Mrs Justice Lieven DBE noted Hayden J’s guidance that “transparency is central to the philosophy of the Court of Protection”. There must be a balance between P’s Article 8 rights and the potential impact on a future criminal trial, and the presumption for Court of Protection cases to be open to the public. Mrs Justice Lieven DBE noted that although she had initially held that the matter should be private due to the risk of hearing negative public comments about her, it was now clear that P has little interaction with the outside world and therefore this risk is minimal. Further, the risk of undermining the integrity of any criminal trial was “merely notional rather than real”. Although there would be some interference with P’s Article 8 rights, this will be limited and can be justified by the media’s Article 10 rights and the public’s legitimate interest in knowing what has happened in this case, particularly in the way that the relevant authorities operate in “deeply distressing cases” such as this one.

Lauren Gardner is a future pupil barrister at Spire Barristers.

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