AB (Disclosure of Position Statements), Re [2025] EWCOP 25 (T3)

[2025] EWCOP 25 (T3)Date 15 July 2025
IN THE COURT OF PROTECTION
Before
MR JUSTICE POOLERe AB (DISCLOSURE OF POSITION STATEMENTS)NHS STAFFORDSHIRE AND STOKE-ON-TRENT INTEGRATED CARE BOARDApplicant(1) AB (by his litigation friend, the Official Solicitor)(2) MIDLANDS PARTNERSHIP UNIVERSITY NHS FOUNDATION TRUST(3) CD(4) EFRespondents
Hearing Hearing date: 30 June 2025
Nicola Kohn (instructed by Mills & Reeve LLP) for the Applicant
Katie Scott (instructed by MJC Law for the Official Solicitor) for the First Respondent
The Second Respondent not appearing
Victoria Butler-Cole KC, Alexis Hearnden and Catherine Dobson (instructed by Advocate) for the Third Respondent
Parishil Patel KC and Eliza Sharron (instructed by Irwin Mitchell LLP) for the Fourth Respondent
JUDGMENT
This judgment was handed down remotely at 10.30am on 15 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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This judgment was delivered in public but a transparency order is in force. 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 AB, CD, members of AB’s family and the treating clinicians anonymised within the judgment, must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]AB is suffering from a prolonged disorder of consciousness. On 10 June 2025 I handed down a judgment concluding that an Advance Decision to Refuse Treatment (ADRT) within a document entitled “Living Will” was, if made by AB, valid and applicable – Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3). Two issues remained for determination before the ADRT could be treated as binding on those providing treatment to AB: was the Living Will genuine or had it been fraudulently drawn up and presented as AB’s own decision? If it was genuine, was it nevertheless signed by AB under undue pressure so as to negate its validity? The Fourth Respondent, on behalf of AB’s family members, raised those issues. A four day hearing was listed to begin on 30 June 2025 but prior to the hearing the Fourth Respondent decided not to pursue the undue pressure argument, and on the first day of the hearing she decided not to pursue the allegation of fraud. She had the support of all family members when making those decisions. As a consequence the parties were able to agree an order, which I approved, that once AB was transferred to a hospice (most likely within a few days of the order) clinically assisted nutrition and hydration (CANH) would be withdrawn.[2]There being no challenge to its authenticity the ADRT within the Living Will is binding in that it has effect as if AB were now refusing consent to the identified treatment, namely CANH. However, other parts of the Living Will which addressed contact with family members in the event that AB were to lose capacity, which he has, are not binding under the Mental Capacity Act 2005 but are highly relevant to a best interests decision about contact. I was invited to resolve outstanding disagreements about AB’s contact with the Third Respondent, his fiancée, and with members of his family whilst AB is cared for at a hospice. I made determinations about contact in his best interests.[3]The substantive Court of Protection proceedings are therefore concluded but this Judgment concerns a further issue raised by an observer to the hearing, Professor Celia Kitzinger who, at the conclusion of the hearing, sought an order directing parties to disclose their position statements to her. Each party had provided the Court with a position statement. They are not all fully anonymised. Professor Kitzinger is well known to the Court of Protection in that she has observed hundreds of hearings and written about many of them on a website run by the Open Justice Court of Protection Project which she co-founded in 2020. The Project encourages others to observe Court of Protection hearings and publishes observers’ accounts.[4]I allowed a limited time to Professor Kitzinger and all parties to file submissions on the oral application and indicated that I would make a determination on paper and give a short judgment. This is that judgment.[5]In her written submissions, Professor Kitzinger widened her application. She says that at three previous hearings in this case she asked for provision of position statements, that I have given permission for them to be provided but that not all parties provided them. She seeks a direction accordingly for provision of all position statements from all those hearings as well as the current hearing.[6]As is standard, a Transparency Order has been made in these proceedings. I ensured that all observers to the hearing had a copy and so they are bound by that Order.[7]COP Rules 2017 r4.3 provides: 4.3.—(1) The court may make an order—(a) for a hearing to be held in public;(b) for a part of a hearing to be held in public; or(c) excluding any person, or class of persons, from attending a public hearing or a part of it. (2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order— (a) impose restrictions on the publication of the identity of— (i) any party; (ii) P (whether or not a party); (iii) any witness; or (iv) any other person; (b) prohibit the publication of any information that may lead to any such person being identified; (c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify. (3) A practice direction may provide for circumstances in which the court will ordinarily make an order under paragraph (1), and for the terms of the order under paragraph (2) which the court will ordinarily make in such circumstances.[8]The relevant practice direction is PD4C. It is headed “Transparency” and provides:
“1.1 This practice direction is made under rule 4.3. It provides for the circumstances in which the court will ordinarily make an order under rule 4.3(1) and for the terms of the order under rule 4.3(2) which the court will ordinarily make in such circumstances. 1.2. This practice direction applies to hearings in all proceedings except applications for a committal order (for which rule 21.27 makes specific provision). 2.1. The court will ordinarily (and so without any application being made)— (a) make an order under rule 4.3(1)(a) that any attended hearing shall be in public; and (b) in the same order, impose restrictions under rule 4.3(2) in relation to the publication of information about the proceedings. 2.2 An “attended hearing”, except where a practice direction provides otherwise, means a hearing where one or more of the parties to the proceedings have been invited to attend the court for the determination of the application. A Dispute Resolution Hearing is not an attended hearing for this purpose. 2.3. An order pursuant to paragraph 2.1 will ordinarily be in the terms of the standard order approved by the President of the Court of Protection and published on the judicial website at https://www.judiciary.gov.uk/publication-court/court-of-protection/.”
[9]Pausing there, in written submissions some parties contended that because the default position is for COP hearings to be in private then these are private proceedings. That is not how the COP Rules and Practice Directions should be read. In very many cases such as this one, the Court has directed that hearings shall be in public but subject to a Transparency Order. The proceedings are not therefore in private or “essentially private”: they are in public. Any member of the public may observe the hearings. It is true that COP hearings will involve consideration of matters that are personal and most usually kept private, but if a hearing is heard in public then those matters will be aired in public. As Hayden J noted in Re M [2016] EWCOP 34, consideration of open

justice in the Court of Protection:

“involves the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice). In a jurisdiction where there is a human, and inevitable pull to the protection of the vulnerable, (this is after all the Court of Protection), it is easy to overlook how some of the wider, abstract concepts also protect society more generally and in doing so embrace the vulnerable.”
The COP Rules and Practice Directions and standard Transparency Order are designed to meet the requirements of the principle of open justice whilst protecting the privacy of P and their family members. Of course the usual provisions may be varied in any particular case, but if a hearing is in public, then a certain loss of privacy will be inevitable.[10]COP Rules r5.9 provides for access by persons who are non-parties to judgments, orders, and documents forming part of the court records:
“Supply of documents to a non-party from court records (1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public. (2) The court may, on an application made to it, authorise a person who is not a party to proceedings to— (a) inspect any other documents in the court records; or (b) obtain a copy of any such documents, or extracts from such documents. (3) A person making an application for an authorisation under paragraph (2) must do so in accordance with Part 10. (4) Before giving an authorisation under paragraph (2), the court will consider whether any document is to be provided on an edited basis.”
[11]Rule 5.12 is of no application to the present case. Rule 4.3(2) is set out above. The Part 10 procedure involves a formal written application to be filed at court on notice, albeit that under r10.1 an interim remedy may be granted prior to the application being issued.[12]Practice Direction 5A includes certain directions concerning the filing of documents in the Court of Protection:
“Documents for filing at court 5. The date on which a document was filed at court must be recorded on the document. This may be done with a seal or a receipt stamp. 6. Particulars of the date of delivery at a court office of any document for filing and the title of the proceedings in which the document is filed shall be entered in court records, on the court file, or on a computer kept in the court office for that purpose. Except where a document has been delivered at the court office through the post, the time of delivery should also be recorded. … Copies 10 Unless— (a) a rule or practice direction provides otherwise; or (b) the court directs otherwise, when a document is to be filed at the court, the person filing the document must provide the original and one copy of the document.”

Copies

[13]The Transparency Order in this case adopted the approved form, with some variations for reasons specific to the case, and included the following standard term:
“At any time the Court may give such directions as it thinks fit (including directions relating to anonymisation, payment, use, copying, return and the means by which a copy of a document or information may be provided) concerning the provision of information or copies of documents put before the Court and the terms on which they are to be provided to any person who attends an attended hearing (and is not a person to whom the document can be provided under Part 3 of Practice Direction 4A to the Court of Protection Rules 2017).”
[14]I note that equivalent terms of the standard Transparency Order now used in family proceedings held in private but attended by a reporter - an accredited journalist or duly authorised lawyer who is a ‘legal blogger’ - are:
“16. A reporter who attends a hearing in family proceedings in accordance with FPR r.27.11, or who indicates in advance that they wish to attend a hearing, is entitled to see, quote from, or publish: (a) Documents drafted by advocates (or litigants if a party is self-representing): i.e. Case outlines, skeleton arguments, summaries, position statements threshold documents and chronologies. (b) Any indices from the Court bundle. (c) Any suitably anonymised Orders within the case. 17. Parties to the proceedings and their representatives may not disclose documents from the proceedings to reporters, except as specified above, or with the specific permission of the court. This includes where a document is referred to or quoted from in court that the reporter would not otherwise have access to. 18. Any such requests for copy documents must be made at or before a hearing which the reporter has attended pursuant to FPR r.27.11. (a) Upon a request being made, the author of the document shall as soon as practicable provide a copy of the document to the reporter. (b) The reporter may quote from or publish the contents of the document, save that the details under heading ‘What may or may not be published?’ of this Order may not be published. Where any document referred to above quotes from a document to which the reporter would not be entitled to see (such as source evidence), the passage quoted may not be reproduced or reported without permission of the court. 19. No other document may be provided to a reporter without permission of the court.”
[15]Thus the Transparency Order used in family proceedings expressly refers to the provision of skeleton arguments and position statements. The COP Transparency Order refers to “documents put before the court”. The COP rules refer to “documents in the court records.” The COP Transparency Order refers to the provision of documents to “any person who attends an attended hearing” whereas the Family Transparency Order refers to disclosure of documents to “reporters”.[16]Neither Professor Kitzinger nor the other observers at the hearing on 30 June 2025 are “reporters” – they are not accredited journalists nor are they legal bloggers (a person who blogs about the law is not a legal blogger unless they have a legal qualification and are duly authorised). However, it is of note that in family proceedings held in private, position statements will be provided to reporters attending the hearing upon request (before the hearing).[17]Professor Kitzinger has drawn the Court’s attention to paragraph 5 of the judgment of Fordham J in R (MPC) v PMP [2025] EWHC 1462:
“Skeleton arguments relied on at a public hearing should ordinarily be made available to the press, promptly on request at the hearing, in paper or electronically. This promotes open justice, as to both public scrutiny and intelligibility (see Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629 at §§42-43). It promotes contemporaneous reporting and public confidence. Often, it is entirely appropriate for skeleton arguments also to be available to members of the public who wish to understand the hearing. Any person wanting a skeleton argument should identify how this will advance open justice, a threshold often easily cleared by reference to understanding the case. The question is then whether there are countervailing factors which justify withholding the skeleton or part of it. It follows from all of this that advocates should come to a public hearing, prepared promptly to provide their skeleton argument, having thought ahead about any countervailing factor, and bringing any contingently-redacted version.”
[18]In Hayden v Associated Newspapers Limited [2022] EWHC 2693 (KB) Nicklin J observed at paragraph 32 that:
“Arguably, skeleton arguments (and other documents containing a party's written submissions) are some of the most important documents in modern civil litigation. It is a written statement of the party's argument to the Court. The (now ubiquitous) skeleton argument enables more efficient utilisation of Court time because it permits pre-reading by the Judge. The resulting abbreviated oral submissions often mean that a transcript of the hearing would reveal only a fraction of the argument that the relevant party was deploying.”
[19]Nicklin J addressed the question of whether skeleton arguments were “records of the court” within the terms of CPR 5.4B(2) noting that they were amongst documents that were the “strangest absences” from the list of such records within the relevant Practice Direction under the CPR. Whilst an immediate application for disclosure to a non-party of skeleton arguments could be facilitated, he noted that there may be practical difficulties in dealing with such a request long after a hearing given that there was no requirement to include skeleton arguments within the records of the court. The listed documents within the relevant Practice Direction under the CPR are documents which the rules require to be filed, but other documents may be filed and thereby become records of the court.[20]COP Rules, r5.3 provides that “Nothing in these Rules requires a position statement to be verified by a statement of truth.” The Rules do not require a position statement to be filed. My case management orders, including for this hearing, required skeleton arguments to be “filed and served”.[21]Professor Kitzinger has also helpfully referred to the Court of Appeal judgment in Moss v The Upper Tribunal [2024] EWCA Civ 1414:
“The importance of skeleton arguments in the conduct of civil justice, and the centrality of such documents to notions of open justice, was identified 25 years ago by Lord Bingham of Cornhill CJ in SmithKlein Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-512. He said: "The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments in which the case was to be decided…public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain."”
[22]The Court of Appeal referred in particular to R v Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420, [2013] QB 618 ("GNM") and Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, [2020] AC 629 ("Dring") in the latter of which Lady Hale held:
"41. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court's rules is not determinative (save to the extent that they may contain a valid prohibition). … 44. It was held in Guardian News and Media that the default position is that the public should be allowed access, not only to the parties' written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him. It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him. If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision. 45. However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy [Kennedy v Charity Commissioner [2014] UKSC 20, [2015] AC 455], at para 113, and A v British Broadcasting Corpn [2015] AC 588 at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be "
'the purpose of the open justice principle and the potential value of the information in question in advancing that purpose"'. 46. On the other hand will be "'any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others"'. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then, there may be good reasons for preserving their confidentiality, for example, in a patent case. 47. Also relevant must be the practicalities and the proportionality of granting the request. It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access. People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so. Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge. On the other hand, increasing digitisation of court materials may eventually make this easier. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate."[23]The Court of Appeal in Moss (above) noted a perception of some tension between the decisions in GNM and Dring and, reviewing both cases, held: “26. A non-party does not have the right to see every document referred to in every case. Lady Hale was quite explicit about that at [45] of Dring. Therefore, to the extent that it is said that there is a "'default position'" to that effect, it is wrong. It was not what the Supreme Court said in Dring, and to suggest otherwise misunderstands what Toulson LJ himself said at [85] of GNM, and fails to give proper weight to the full paragraph. To take just one example, if there was a "default position" that every document placed before a judge and referred to in the course of proceedings could be provided to any non-party who asked for it, whoever they were and for whatever reason, there would have been no need for Toulson LJ to go on, in the same paragraph, to identify that "where access is sought for proper journalistic purpose, the case for allowing it will be particularly strong".27. The first step therefore is for the person seeking access "to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so" (as per Lady Hale at [45] of Dring). The first step in the process, therefore, is for the non-party to show a good reason for seeking disclosure, and that test needs to be satisfied in every case. I agree with Mr Wills that it is a low threshold, at least where what is being sought are copies of skeleton arguments or written submissions which are central to an understanding of the case, and that in many or most cases it will be easily cleared. But it is a threshold and it needs to be surmounted. 27. There was some debate about what Lady Hale meant by explaining "how granting him access will advance the open justice principle". In my view, that simply means that the non-party must explain how access will allow him or her to follow the case and understand the reasons why the judge decided the case in a particular way.28. If there is no good reason for granting disclosure, that is the end of the matter, and the application must fail. No balancing exercise is required. But if there is a good reason, it is then necessary to consider any countervailing factors. Those will most obviously include the risk of any harm or prejudice that may be caused by the disclosure of the documents to a non-party. In addition, there is what Lady Hale describes at [47] of Dring as "the practicalities and the proportionality of granting the request". As she explained, an application made during the trial when the material is readily available is one thing; an application made thereafter is much less likely to succeed because it may not be practicable to provide the material and, even if it was, "the burdens placed on the parties on identifying and retrieving the material may be out of all proportion of the benefits to the open justice principle and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or time-consuming, to discharge."29. The point was made during submissions that, if read literally, the last sentence of [47] of Dring might be taken as requiring the non-party to demonstrate that there were no countervailing factors, and to show that granting the request would not be impracticable or disproportionate. In my view, it is plain that that was not what Lady Hale meant. The last sentence of [47] is a distillation of the factors which apply in any application for disclosure to non-parties. She did not intend to suggest that the non-party should address, for example, issues relating to the risk of harm: how could a non-party know that there might be a risk of harm arising from the disclosure of a document that he or she has not even seen? The sentence is a summary, and nothing more than that. Countervailing factors and impracticabilities or lack of proportionality will be matters which, at least in the first instance, one would expect an objecting party to raise: see Goodley v The HUT Group and Others [2021] EWHC 1193 (Comm) at [44].[24]At paragraph 34, Coulson LJ then set out good practice within the Upper Tribunal:
“(a) It is sensible that, in the first instance, non-parties should where practicable seek such documents directly from the party which has created them…. (b) In the event of objections or difficulties, the non-party should make an application for the documents to the UT. That should be done on notice to the parties … (c) If such an application is made, the party or parties who object to disclosure will then have an opportunity of setting out the reasons for their objection. Those should also be provided to the non-party, so that he or she can, if necessary, comment upon them. If the basis of the objection is the confidentiality or sensitivity of the material in question, then of course the details should not be provided to the non-party.”
[25]Ms Butler-Cole KC, Ms Hearnden and Ms Dobson have referred the Court to the rules in the Court of Appeal where skeleton arguments must be provided to accredited law reporters and accredited media reporters, unless an application is successfully made to withhold them (CPR PD52C para 33). When considering such an application, the court must take into account “(a) the interests of justice; (b) the public interest; (c) the protection of the interests of any child, vulnerable adult or protected party; (d) the protection of the identity of any person intended to be protected by an order or direction relating to anonymity; and (e) the nature of any private or confidential information (including information relating to personal financial matters) in the document.”.[26]In the Court of Protection legal representatives use the labels “position statement” and “skeleton argument” almost interchangeably. I shall refer to position statements in the remainder of this judgment. Such documents, usually drafted by Counsel, comprise statements of the applicable law, the party’s case on the issues in dispute, and their submissions. It is my experience that position statements are not filed with the Court in the sense of being sent to the Court Office for sealing. In cases heard at the Royal Courts of Justice, typically they are sent by email to the listing office or to the judge’s clerk. The requirements for filing set out within Practice Direction 5A are not typically complied with – position statements are not date stamped by the Court or sealed and a second copy is not provided I am told by counsel that at First Avenue House and in regional courts, position statements are sent to the main email address used for filing documents. However, there does not appear to be any clear definition of how to “file” a document such as a position statement and no requirement within the Rules or Practice Directions that position statement should be filed. They are clearly documents “used by the Court” within the terms of the standard Transparency Order. I am also satisfied that once they have been sent to the Court (whether to listing or to a judge’s clerk) they are “documents within the court records” within the terms of COP Rules r 5.9(2).[27]In this judgment I refer to “observers” as being members of the public who are neither accredited journalists nor legally qualified bloggers.[28]One purpose of providing position statements to the court is to reduce the time spent on oral submissions at the hearing. That is beneficial to the efficient administration of justice but it can make it difficult for observers who do not have access to those position statements to understand what is going on. The hearing before me provides a good example of how, without access to such documents, an observer would not be able to gain a good understanding of the proceedings. The background to the hearing was very well known because of the previous published judgment which set out all the facts and issues, but this hearing began with a request by Counsel for more time to consider some important matters and an indication from me about a key issue. The rest of the morning was spent by the parties in discussion before an agreed order with a disputed schedule of contact was presented to the Court. Therefore, none of the key issues, other than contact, were addressed in open court. Without sight of the parties’ position statements, observers could not know what issues remained in dispute at the start of the hearing or what the parties’ positions had been on those issues, and how the parties had moved their positions on the first day of the hearing.[29]This case involves an issue of considerable public interest, namely the efficacy of an ADRT, including life sustaining treatment. So long as AB continues to lack capacity to make decisions about his medical treatment – and there is no foreseeable prospect of his regaining such capacity – then implementation of the ADRT will result in the withdrawal of life sustaining treatment and therefore his death. The application for a direction that the position statements be disclosed is made by an experienced and responsible court observer and blogger who has established that she is astute to comply with Transparency Orders.[30]The Third Respondent and the Official Solicitor are content to provide their position statements to observers. The family, through the Fourth Respondent, are not. The Applicant has not agreed to provide its position statement.[31]The standard Transparency Order applies to the parties and their representatives. They are “persons bound by the injunction”. The Transparency Order sets out “the information” that may not be communicated or published. The information typically includes information that identifies that P as the subject of the proceedings and where they live. Paragraph (9) of the standard Transparency Order permits parties or legal representatives to communicate the protected information to another party or legal representative (because that is a circumstance set out in paragraphs 33 to 37 of Part 3 of PD4A). There is no such exception for communication of the information to an observer.[32]If the position statement is drafted so as to comply with the Transparency Order - if it anonymises P and does not include any of the protected information - then there would be no breach of the Transparency Order by providing a copy to an observer. If, on the other hand, the position statement does include “the information” protected by the Transparency Order then on the face of it the provision of a copy to an observer is a communication of the information which is a breach of the Order.[33]Paragraph (7) of the standard order provides that the injunction prevents any person bound by the injunction from publishing or communicating the information “subject to further order of the Court.” Further, by paragraph (10) the parties or any person affected by the Transparency order may “apply to the Court for an order (and the court may of its own motion make an order) that varies or discharges the order” or any part of it. Thus, it is open to the Court of its own motion or on application to vary the Transparency Order to allow a party or legal representative to provide a non-anonymised position statement to an observer.[34]The standard COP Transparency Order provides for the court to consider not only the provision to a non-party of documents put before the court but also the terms of the provision of such documents.[35]Thus, whilst COP Rules r5.9 requires a Part 10 application, the Transparency Order allows for a less formal application process by which a non-party might seek disclosure of a document from the court record. That less formal process must be more suitable to an application by an observer at a hearing.[36]There is presently no guidance on the provision of position statements to observers of Court of Protection hearings. I am told that practice varies and there is some confusion amongst parties, representatives, and observers as to the correct procedure and whether copies of position statements may be provided to observers on request or whether a court order is required. I confess to having taken a less than rigorous approach in the past, simply indicating that I was content for position statements to be provided to observers who had a copy of the Transparency Order. Hence, having been compelled now to take a deeper look at the legal position, pending any formal reconsideration of the standard terms of the Transparency Order or changes to the COP Rules, it might be helpful for me to draw some of these threads together and to set out what I believe to be the procedure that ought to be adopted: 36.1. Position statements are documents “put before” the Court within the terms of the Court of Protection template Transparency Order. They also become documents within the court record once filed and they are filed once sent to the court listing office or a judge’s clerk or court clerk. 36.2. Parties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order. I also suggest that it would be helpful to include a warning on the front sheet of the position statement – a rubric similar to that which appears on published judgments, namely that “there is a Transparency Order in force and that irrespective of what appears in the position statement, the Transparency Order must be strictly complied with. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.” 36.3. An observer does not have an automatic right to see position statements, whether they are being used in a hearing they are to observe or have been used at a hearing they have previously observed. A change in the court rules and/or relevant practice direction (or to the standard Transparency Order referred to in the practice direction) would be required to create such a right. 36.4. If an observer wants to see a party’s position statement they should ask the party in advance of the hearing and state their reason. If they cannot contact a party in advance of the hearing (whether at court or otherwise) they may make the request (with reasons) to the court and that request can be passed on to the party or their representatives. 36.5. When a hearing is in public and a Transparency Order has been made, a party is free to provide a position statement to an observer attending a hearing without requiring a Court direction provided that(i) the position statement does not include the information protected by the Transparency Order and(ii) the observer has been provided with a copy of the Transparency Order so that they are bound by it. 36.6. At a hearing in public, a party must ask the Court for permission to provide a position statement to an observer who has requested it if the document does include the information protected by the Transparency Order, provided that the party is otherwise content to provide it. The Court can then allow a variation of the Transparency Order to allow for the provision of that non-anonymised position statement to that observer at that hearing, if the Court considers that an appropriate step to take without hearing further submissions. That variation should be recorded in the subsequent court order. To re-iterate, the order would be a variation of the Transparency Order for the purposes of a specific hearing and on request of the party or legal representative who would otherwise be in breach of the Transparency Order by providing the position statement to an observer. 36.7. If a party refuses to provide a position statement to an observer on request, the observer may apply to the Court for a direction, as provided for by the standard terms of the template Transparency Order, that they be provided with a copy on such terms as the Court considers fit. 36.8. Such an application need not be made formally under the procedure in COP Rules Part 10. There is insufficient time to allow for a formal written application to be made and the Transparency Order allows for its variation to be made of the court’s own motion or on application with no requirement for such an application to be made in writing. That is a much more suitable process for a request by an observer at a hearing. The application may be made orally to the Court at the outset of the hearing. 36.9. The Court will hear submissions by the observer as to how access to the position statement will advance the open justice principle, for example by allowing them to follow the case. If needed, the Court will then hear submissions from the party refusing to provide its position statement as to countervailing factors such as the risk of harm or proportionality. The observer may respond and the Court will give a short ruling and allow the application on such terms as it thinks fit, or refuse it. Dring will be applied. 36.10. If, after a hearing has concluded, a non-party – whether or not they observed the hearing – requests to be provide with a position statement that was used at the hearing, then they should make a Part 10 application under r5.9(2). That process must be adopted because the application should be on notice with an opportunity for the party concerned to respond. The applicant observer will need to make out a case in support of their application. The hearing having concluded, the more immediate, less formal process outlined above will no longer be appropriate. Again Dring will be applied (and see In re HMP below)[37]That procedure would be broadly consistent with the approach taken in Moss (above). It is not a straightforward procedure but unless or until there is a change to the rules, practice directions or the standard Transparency Order, it appears to me to be the best that can be achieved. For my part, I would add that: 37.1. I am concerned in this case with an application by an observer. The rules, practice directions, and standard Transparency Order distinguish between parties and non-parties, but not between observers and reporters. Hence the same procedures set out above should, in my judgement, apply to applications by accredited journalists and legal bloggers. 37.2. The Transparency Order is the mechanism through which persons are prohibited from communicating or publishing certain information. In most cases it will not be necessary to consider further prohibitions in respect of information within a position statement when deciding whether to permit or direct its provision to an observer at an attended hearing. After all, the position statement is a means of avoiding longer oral submissions at the hearing. In the absence of a written position statement, an advocate would make the same submissions orally and those would be heard by the observer and could be communicated or published provided there was compliance with the Transparency Order. Although it is good practice to prepare anonymised Position statements, I would usually allow a variation of the Transparency Order so that a non-anonymised position statement may be provided to an observer who is at an attended hearing and who has the Transparency Order, rather than insisting on full anonymisation as a condition of provision. The observer will be bound by the Transparency Order. My practice is to refer to P by name during a public hearing with observers present, safe in the knowledge that the Transparency Order prohibits them from communicating or publishing P’s identity outside the hearing. If there have been breaches of Transparency Orders by observers, I am not aware of any. I can see that a hard copy of a position statement naming P might be left on a desk and seen by someone other than the observer but, again, if that has happened I am unaware of any such instances. The addition of the rubric I have suggested to the first page of a position statement would add a further reassurance. So the Transparency Order would protect “the information” even if names or other protected information is included in a position statement provided to an observer. If there are a large number of observers then I might vary this practice and insist on a position statement being fully anonymised before provision to observers. Even if every observer were to abide by the Transparency Order, the purpose of protection the information referred to in a Transparency Order would be de facto defeated if, say 50 observers were all provided with that information. 37.3. Some of the submissions received on this issue emphasised the private nature of material within position statements and that the default position for COP hearings is that they be heard in private. However, the great majority of COP welfare hearings are in public and subject to a Transparency Order. Information relayed to the court whether orally or in writing is indeed personal, but the Transparency Order allows reporting and communication of it without undue interference with the Article 8 rights of P and others. That is the balance struck. A hearing that is in public can be attended by anyone who can hear even intimate information about P. I do not believe it necessary to limit the purpose for which position statements are provided to an observer. The answer to the concerns raised is to make an application for the hearing to be heard in private. Upon such an application the Court will consider whether to proceed in public or in private, applying the relevant rules, practice directions and case law. It was submitted that position statements should be provided only to allow for understanding of the hearing but with a prohibition on an observer quoting from them. I do not believe it necessary for the Court to engage in that distinction – the Transparency Order prevents publication of the relevant information. If there is further information included in position statements that requires “protection”, then the Transparency Order may need amending, as indeed has been done in this case at the hearing on 22-23 May 2025.[38]In In re HMP (“X” and “Y” v BBC and Ors) [2025] EWCA Civ 824, the Court of Appeal considered a case:
“… about access to the court file under the principle of open justice as identified in Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd (Media Lawyers Association intervening) [2019] UKSC 38; [2020] AC 629 ("Dring"). The purpose of this short judgment is to address a matter of general importance, namely to emphasise the limits of the open justice principle, specifically in the context of care proceedings under the Children Act 1989 ("the CA").”
The Court of Appeal determined that an application by the BBC for access to court documents was not made for any purpose connected with the open justice principle. The Dring principles were relevant to the application: “The court in Dring thus identified two main purposes of the open justice principle, namely: (i) to enable public scrutiny of the way in which the courts decide cases so as to provide public accountability and secure public confidence; and (ii) to enable public understanding of the justice system. Whilst the court recognised that its identification of these purposes might not be exhaustive, the core aim is to ensure appropriate transparency for the work of the courts and tribunals and the judges who sit in them.” [21]. It is incumbent on a non-party seeking access to court documents under the open justice principle to explain “(i) why he seeks access and (ii) "how granting him access would advance the open justice principle.” [23].[39]In that case the application for documents concerning private fostering arrangements was not connected with the court proceedings and was not for any purpose connected with the open justice principle. Here, however, provision of the parties’ position statements is for the purpose of understanding the hearings observed by the applicant as a lay observer.[40]Professor Kitzinger’s application is made by her personally and is not made as a representative of all observers at the hearing.[41]Even though I am satisfied that Professor Kitzinger was entitled to make the application orally, albeit belatedly towards the very end of the hearing, she made it for herself. She applied to see position statements used at the hearing in which she made her application. Later, in writing, she sought provision of position statements previously used at earlier hearings which she had attended. However, I am satisfied that at each of those hearings her request had been made and that I had said that I had no objection to her being provided with those position statements. Thus, these are not applications made after a hearing for access to court documents, they were applications made informally at the time. I have now determined that such applications should have been approached in the manner set out above. Some parties provided their position statements to Professor Kitzinger at the earlier hearings and they were entitled to do so because I had, in effect but without the precision I ought to have applied to the process, given permission for them to do so (insofar as the documents were not fully anonymised and permission was therefore required). But some parties have not given Professor Kitzinger their position statements from previous hearing she observed. Therefore, I have now to make a determination as to whether I should direct them to do so.[42]In this case I am persuaded that the provision to Professor Kitzinger of the position statements of all the parties, including the Applicant ICB and the Fourth Respondent would advance the open justice principle. It would advance her understanding of the hearing and the proceedings. The fact that the proceedings eventually resolved without the need for a full hearing and without the need for submissions to be made on, for example, the issue of fraud, does not negate the conclusion that sight of the position statements advances understanding and the open justice principle. To understand what occurred at the hearing, an observer would need to know the initial positions of the parties prior to concessions being made. Given the protections offered by the Transparency Order, which include the protection of the anonymity of the Fourth Respondent and other members of AB’s family, I do not accept that there is any risk to AB or members of his family from allowing the provision of copies of the position statements to Professor Kitzinger or any other observer. Their Article 8 rights are appropriately protected. This is not a task that is at all disproportionate and is in fact wholly proportionate given that the purpose is to aid understanding so as to meet the principles of open justice.[43]Professor Kitzinger made similar applications at previous hearings on 26 March, 12 May and 22-23 May 2025. Unfortunately, the refusal of some parties to give their position statements to her was not brought to the attention of the Court and dealt with at the hearings. In this complex case, I am again satisfied that provision to her of all Position statements used at those hearings would advance the open justice principle by giving her an understanding of the hearings. Again, she remains bound by the Transparency Order which protects the Article 8 rights of the parties and AB’s family, as well as AB himself. The direction for provision is proportionate.[44]I therefore vary the Transparency Order accordingly, to allow the provision of position statements from all parties to Professor Kitzinger in respect of the hearings on 26 March, 12 May, 22-23 May, and 30 June 2025. Insofar as any party has objected to the provision of the position statements to her, I direct that they shall be provided.[45]In future, in line with the process I have suggested, any disputes about provision of a position statement to an Observer must be brought to the attention of the Judge and resolved during the hearing.

Postscript

[46]After having drafted the judgment above, and shortly before I was to circulate the draft to the parties, I received the very sad news that AB had died. In accordance with the order I made on 30 June 2025, he had been transferred to a hospice and clinically assisted nutrition and hydration withdrawn. He died on 8 July. CD and a hospice nurse were with him. I have offered my condolences to CD and to AB’s family. May he rest in peace.

Cited in 2 later judgments