Last month, Bindmans LLP acted for AA in her successful appeal regarding the circumstances in which an individual involved in Court of Protection proceedings can be discharged as a party.

Case summary

The appeal was made against two orders relating to the exclusion of AA from Court of Protection proceedings involving her daughter – a highly vulnerable 19 year old woman who is referred to as P.

AA had been an active party in the Court of Protection proceedings for over 18 months. She was given no notice that the order to exclude her was going to be made, no notice of the evidence on which the court relied on making the order and no opportunity to appeal the decision before it was made. No judgment was given during the hearing in which the order was made and AA was given hardly any indications of the reasons as to why the order was made.

The other parties involved in the Court of Protection case involving AA’s daughter P relied on evidence which could not be disclosed due to ongoing police investigations and closed proceedings were necessary. Lord Justice Baker commented that ‘it appears that this is the first case in which a special advocate has been instructed in the civil decision of the Court of Appeal.’

Court of Protection powers

It was recognised that Court of Protection rules give the court wide powers to exclude parties, to withhold information from parties, to discharge parties from the proceedings, and to dispense with the rules altogether. The Court of Appeal accepted that these powers have to be exercised in accordance with wider principles of law and justice which have been developed and recognised under the Human Rights Act 1998. The Court of Appeal ruled that AA’s rights under the European Convention of Human Rights (ECHR) were plainly engaged, both under Article 6 and Article 8. Although AA’s rights conflicted with P’s, the law required the conflict to be resolved by reference to P’s best interests, but any restrictions to AA’s rights should have gone no further than strictly necessary.

Outcome

The Court of Appeal have decided that the same legal principles of fairness and natural justice apply across all jurisdictions, including the Court of Protection. The way in which these principles are applied can vary depending on the nature of proceedings and the circumstance of the individual case.

The court focused upon different options open to the judge in the Court of Protection, including: suspending contact and withholding information for a period of time; disclosing information in a redacted document; or instigating the special advocate procedure. The Court of Appeal also pointed to the need for ‘exceptional’ circumstances being needed to exclude a party.

AA has been restored as a party to the Court of Protection proceedings with her appeal being upheld.

The full judgment can be found here.

AA was represented by Karen May of Bindmans LLP along with Tim Nesbitt QC and Alex Cisneros of Outer Temple Chambers. Her legal team at Bindmans also included Louise Plumstead.