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Aunt loses battle to be joined to Court of Protection proceedings

Confidential evidence meant a vulnerable woman’s maternal aunt should not be joined to proceedings about her welfare, the Court of Protection has ruled.

In KK v Leeds City Council [2020] EWCOP 64 Mr Justice Cobb said that although the conclusion was unusual it was one that His Honour Judge Hayes had been entitled to reach.

DK is a 19-year old woman with global learning disabilities, an autistic spectrum disorder and associated profound needs.

She is the subject of Court of Protection proceedings and was represented by the Official Solicitor.

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Leeds City Council brought proceedings seeking declarations and welfare orders as to her residence, contact with others and use of social media.

Her aunt KK has been her main carer since DK’s mother died when she was aged four months.

She applied earlier this year for party status but HHJ Hayes refused this and Cobb J gave leave to appeal.

Cobb J said: “While I am satisfied that the appeal raises an important issue of procedure and practice 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.”

He noted that HHJ Hayes had said Leeds and the Official Solicitor “rely upon written evidence which has not been disclosed to KK.

“That evidence is material to the balancing exercise which informs the court's decision. But it cannot be disclosed to KK because, to do so would - of itself - be to act contrary to DK's best interests.

“This means that KK (and those who act for her) are unaware of what that written evidence contains and why it is said to weigh against her joinder application.”

HHJ Hayes made a confidential supplemental judgment to address that evidence, which was “an unusual course but one that was proposed to the court as the best way of ensuring that DK's interests are protected”.

Cobb J said the crucial part of HHJ Hayes’ judgment was that he was “satisfied that the reasons for not revealing the written evidence to KK are valid and that the necessity for redaction is rooted in DK's best interests”.

The judgment went on: “If I reveal to KK what that written evidence is, DK is likely to disengage from her engagement both with professionals and with these proceedings. Similarly, if I join KK to these proceedings, notwithstanding that written evidence, those same consequences will be likely to result.”

KK appealed on the grounds that the proceedings in the lower court offended the principle of open justice, robbed the judge of the potential to make proper determinations since she could not challenge the evidence and so rendered the proceedings unfair.

She argues that an appeal would raise an important issue of procedure and practice as there was no reported case law on how the court ought to exercise its discretion under rule 9.13 COPR 2017 in circumstances where the parties resist joinder of an applicant for reasons which are not openly stated.

Leeds and the Official Solicitor argued it was wrong to equate 'open' justice with 'natural' justice and that just because a procedure is not entirely 'open' it does not render it fundamentally unjust.

Cobb J said: “I consider that the judge was not wrong to conclude that to join KK to the process ‘would be to strike at the heart of this statutory scheme designed for DK's participation in the legal process’, and that this would adversely affect DK's ability to exercise her Article 6 rights.”

Joining KK to the case would “defeat the very purpose of the proceedings” and Cobb J said he could “detect no serious procedural irregularity in the way [HHJ Hayes] conducted the proceedings”.

He added this was not a case where it would have been possible to ‘gist’ the material to KK and her lawyers.

Mark Smulian

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