Court of Appeal to decide whether open justice applies to the Court of Protection: Briefing for CA-2025-001953 Re Gardner

By Celia Kitzinger, 22^nd March 2026

Does the principle of open justice apply to the Court of Protection?

That’s the question the Court of Appeal will decide on Wednesday 25th March 2026.  It’s an appeal against Poole J’s decision in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025). 

The hearing can be attended in person at the Royal Courts of Justice or accessed from the court’s live-streaming page here: https://www.judiciary.uk/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/

The Court of Appeal case is brought by the mother of the protected party in the proceedings from the Court of Protection: Ruth Cowles, represented by Alex Ruke Keene KC (Hon) of 39 Essex Chambers.  She’s appealing against the judge’s order to disclose her position statements (aka ‘skeleton arguments’) to me as a non-party observer, and against Poole J’s guidance on position statements more broadly.

There are two grounds to her appeal: Ground 1 relates to procedural irregularities in relation to the applications I made to the court for disclosure and Ground 2 is the claim that the principle of open justice simply does not apply in Court of Protection proceedings. I expand on both of these below.

The other parties from the Court of Protection proceedings have been excused from being parties to this appeal.  They were the protected party’s litigation friend, the Official Solicitor, and his fiancée (both of whom did disclose position statements when I requested them at a point when they had discretion to disclose but had not yet been directed to do so) and the ICB (which withheld its position statements until the judge directed disclosure).   

Permission has been granted for two intervenors i.e. non-parties who have knowledge and experience to bring to the court which is distinctively different from that of the parties and is likely to assist the judges.^[1]

One is the Official Solicitor, Sarah Castle, represented by Katherine Scott of 39 Essex Chambers.  She’s not acting (as in the lower court) as the protected party’s litigation friend (he died on 8th July 2025 having been transferred to a hospice for palliative care in accordance with the choices he had made in his Advance Decision to Refuse Treatment). In this appeal, the Official Solicitor is acting in her own right as someone with extensive experience of acting as litigation friend to those involved in Court of Protection proceedings, and seeking to protect their best interests.

The other intervenor is me, also acting in my own right, as someone with extensive experience of attempting to access Court of Protection hearings as an observer, believing in open justice, and seeking disclosure of the documents required to make sense of what I observe and to report it accurately. I watch Court of Protection proceedings and support others to do so, and to blog about them, as part of my voluntary contributions to the ongoing work of the Open Justice Court of Protection Project.  I am enormously grateful to my brilliant legal team who are representing me pro bono: Emma Sutton KC of Serjeants’ Inn and Gemma McNeil-Walsh of 5RB.

In this ‘briefing’, I will set out the relevant background and a short summary of the arguments of the appellant and the intervenors. I hope this will assist observers to follow the hearing – either in real-time (in person in the Royal Courts of Justice or via the live-stream) or subsequently via the recording likely to be available after the hearing on the court’s YouTube channel.

There is currently (as I write this on 22^nd March) no agreement that skeleton arguments for this appeal can be made publicly available on the Court of Appeal website for people to download, and no agreement that they can be generally disclosed.  Other than those directly involved in the case, only three people have – to my knowledge – gained access to the skeletons and they did so by writing directly to the court ( [email protected]) to request them, explaining their interest in the case, and giving a reason why they were asking for them – a key reason being to enable them to follow the hearing. In response, the appellant’s skeleton was disclosed to these three people – albeit only in a redacted form (as far as I know without the approval of the judges for such redaction).

On the assumption that many people will not think to write to the court in advance requesting the skeletons, and that even if they do their requests may be refused, or that skeletons may be sent too late to be useful for those observing the hearing contemporaneously – as has happened previously in Court of Appeal hearings (see The gulf between theory and practice: Open justice in the Court of Appeal) –  I will set out the basic background and arguments as neutrally as I can (bearing in mind my own role in the case). 

Background

I’ve organised my account of the background to this case by reference to the three published judgments by Poole J in the lower court. It’s the second of the three judgments that’s under appeal, but it is probably useful to know about the other two to get a sense of the context.

1. Substantive decision about and applicability of the ADRT (Judgment of 10^th June 2025)

The substantive judgment at the centre of this case is Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3).  It’s an important judgment that examines and applies the statutory requirements for the validity and applicability of an Advance Decision to Refuse Treatment (ADRT). In the particular circumstances of this case, the ADRT was found, if ‘authentic’, to be valid and applicable.

The case concerned Carl Gardner, a man in his early 40s who had been living with his fiancée, Danielle Huntington, when he had a cardiac arrest on 5^th May 2024 and suffered hypoxic brain damage. He received intensive hospital treatment to keep him alive, and at the time of the first hearing, about a year later, was continuing to receive long-term invasive treatment, including clinically assisted nutrition and hydration (CANH). By this point, after some initial uncertainty about diagnosis, it was confirmed that he was in a Prolonged Disorder of Consciousness (PDOC).

There was never any doubt but that he lacked capacity to make decisions for himself from the moment of the cardiac arrest onwards – and that includes decisions about contact with other people, and medical treatment. Normally that would mean that ‘best interests’ decisions would be made on his behalf, and any unresolvable dispute about best interests would be referred to the court.  For the first four months after his brain injury, ‘best interests’ decision-making was the presumed (lawful) approach.

After that, however, it emerged that Carl Gardner had apparently made an ADRT refusing life-sustaining treatment, including CANH, under just the circumstances he was now in.  This could mean that best interests didn’t apply to some medical decision-making.

About a month before he sustained his brain injury and lost capacity, Carl Gardner had purportedly signed a document entitled “Living Will”, setting out both his wishes concerning contact with various family members, and his advance refusal of certain medical treatment, including life-sustaining treatment, in the event that he suffered a serious brain injury from which he was unlikely to recover so as not to require full time care. (The judgment helpfully quotes extensively from the relevant parts of the ADRT.)  If the document was valid, applicable and authentic, then CANH could not continue to be provided – and the decision about CANH was not a ‘best interests’ decision.

Carl Gardner’s mother (and other members of his birth family including his siblings whose voices she represents) did not believe that the Living Will or the ADRT within it, was authentic. They said that either the entire Living Will was a fraudulent document which he knew nothing about, or that it was signed by him under undue influence. They also made the argument that it wasn’t valid or applicable. In contrast, his fiancée believed the Living Will to be a genuine document. 

The judge comments that relations between the birth family and the fiancée “previously strained, are now fairly described as hostile” (§3). He refers to another document accompanying the Living Will, as presenting “a deeply personal account of his family and his fiancée in which there is a stark contrast between the damning description of the former and the glowing description of the latter” (§27.3)

The mother’s allegations of fraud and undue influence meant that even after determination of its prima facie validity and applicability,  two issues remained before the ADRT could be treated as binding on those providing treatment.  Was the Living Will genuinely signed by him or had it been fraudulently drawn up and presented as Mr Gardner’s own decision? If it was his  genuine signature, had he signed it under undue pressure so as to negate its validity?

The judgement draws attention to the legitimate public interest matters raised in this case.

_{An Advance Decision to Refuse Treatment (“ADRT”) is a very important document which, if valid and applicable, may result in life sustaining treatment being withheld or withdrawn from a person when they have no capacity to make that decision for themselves and irrespective of their best interests. This case demonstrates difficulties that can arise when:}

_{1.1. An individual who has made an ADRT does not provide it to a healthcare professional or make clear arrangements for it to be brought to the attention of clinicians in the event that they lose capacity to make decisions about their own medical treatment.}

_{1.2. The authenticity, validity and applicability of an apparent ADRT are the subject of dispute amongst the individual’s loved ones and family.}

_{1.3. An ADRT which is the subject of dispute or doubt is not brought promptly to the attention of lawyers, Mental Capacity Act specialists, or the Court of Protection}.

Towards the end of the judgment, Poole J sets out “some important lessons for individuals who have made an ADRT or are contemplating doing so, for their families and friends, and for clinicians and NHS Trusts” (§53.1-53.9)

The family’s allegations of fraud and undue influence meant that – despite the judge’s finding that Carl Gardner’s ADRT was otherwise valid and applicable – the medical treatment he’d apparently refused would continue to be administered pending the next hearing, which was listed for four days from 30th June 2025 (so more than a month later).

2. Family decision not to pursue undue pressure and fraud; Judicial decision to direct disclosure of position statements (Judgment of 15th July 2025)

Prior to the hearing on 30^th June 2025 (reported in this judgment: AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025)), Carl Gardner’s mother (with the support of all family members) decided not to pursue the undue pressure argument. On the first day of the hearing, she decided not to pursue the allegation of fraud either. As a consequence, the parties were able to agree an order, approved by Poole J, that CANH would be withdrawn.  Outstanding disagreements about the contact arrangements between the patient and his family members and fiancée were heard and resolved by best interests decisions from the judge.

I observed the hearing of 30^th June 2025 in person at the Royal Courts of Justice and since I had not received position statements from either the ICB or the family, I made an oral request for disclosure of the parties’ position statements for the 30^th June 2025 hearing.  I had requested but been refused access to the family’s position statements at the previous hearings in the case, and they objected again to disclosing their position statement at this hearing.  Following subsequent written submissions (in which I asked for disclosure of all position statements across all hearings in this case), the judge directed  disclosure and also set out some guidance for disclosure in future cases. That is the decision that is now under appeal.

Here’s what the order said:

_{By 4pm on 05 August 2025, all parties shall provide a copy to Professor Kitzinger of the Open Justice Project of position statements in this matter from the hearing: 2626 March 2025; 12 May 2025; 22-23 May 2025; 30 June 2025}

Following this order, I was sent position statements from all parties, including the family – who first asked, via their lawyers, whether I would agree in advance not to publish material from them. I agreed, and was sent them on that basis.

The Guidance about position statements is set out in §36 of the order as follows:

_{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.}

_{39.9 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).}

3. Duration of reporting restrictions (Judgment of 16th September 2025)

The final published judgment from this case is Re Gardner (Deceased), (Duration of Transparency Order) [2025] EWCOP 34 (T3). 

The order that followed the final hearing, which all counsel involved in that final hearing had agreed, included a direction that “the Transparency order dated 23 May 2025 shall cease to have effect from 30 August 2025“. As the judgment says, “Mr Gardner was likely to die within a short time of his transfer to a hospice and so the Transparency Order (“TO”) was to be discharged after a suitable “cooling off period” following his death”(§2).

The birth family “now had a change of heart” (§4). Represented by Parishil Patel KC and Eliza Sharron, they made an application to extend the TO either indefinitely, or for 10 years (later reduced to 2 years) on the grounds that they would be harmed if their involvement in this case were to become public knowledge, that their professional reputations were at risk and their Article 8 privacy rights would be infringed (§10(2)). The judge found these concerns to be “highly speculative and overstated” (§41(ix))

On behalf of Danielle Huntingdon, Carl Gardner’s fiancée, Alexis Hearnden and Tor Butler Cole KC (acting pro bono) submitted that the events of the past 18 months had profoundly impacted on her. “She has been accused of being party to producing fraudulent documentation including her partner’s Living Will. She has had to battle with the NHS as well as the family to ensure that Mr Gardner’s choices were respected. She wants to talk freely to her family, friends and professionals, and may in due course wish to speak more publicly, about her late fiancé, the Living Will including the ADRT, the circumstances leading to the litigation and the litigation itself. These issues are unavoidably personal but are also of much wider public interest.”  Danielle Huntingdon also wanted the TO discharged because she feared inadvertently breaching it (“I have found it difficult to understand what is caught by the Transparency Order and what can be spoken about as simply part and parcel of my life.  …  I find it very stressful to think that I could be fined or sent to prison if I get it wrong.”  These submissions found favour with the judge (§41(ii))

I was joined to the case as an intervenor, for this hearing only and was represented pro bono by Emma Sutton KC (thank you!).  I adopted Ms Huntingdon’s submissions and added that the TO prevents commentators from fully airing the important issues in the case and from informing and engaging a wider public in debate about those issues (accepted by the judge at §41(iii)).

The court considered the purpose of TOs to be the protection of P’s privacy during his lifetime and said: “In the great majority of cases a TO made in Court of Protection proceedings ought to be discharged upon P’s death or within a short period after their death. The appellate courts might say that that should be the rule in all such cases.”  The judgment concludes robustly:

_{“The distress and unpleasantness caused by the litigation and the events surrounding Mr Gardner’s injury, hospitalisation and death are raw. They will continue to inflict pain on those close to him and I have no doubt that, for some, they would be exacerbated by publicity about the case. But much of that pain is caused by matters and events which arose before the litigation began and which will not now disappear now that it has ended, even if it were never spoken about publicly. Ms Huntington, Professor Kitzinger and others want to speak and write about the important issues and experiences that arise, not just from the litigation, but from the events and experiences surrounding Mr Gardner’s injury, his management in hospital, and his death. Continuation of the TO injunctive provisions for years after his death would amount to a considerable and unjustifiable interference with the rights and freedoms of them and others. The balance weighs firmly in favour of discharging the TO and removing any restrictions on communicating or publishing information or material relating the proceedings and the public hearings in this case. I refuse the Fourth Respondent’s application and I shall discharge the TO.” (§43)}

This judgment has not been appealed.  In the six months since it was published, Carl Gardner’s name (and those of other family members) has been published in a number of blogs and in other judgments.^[2]

Court of Appeal

Permission to appeal was granted on 3^rd November 2025 on the grounds of compelling reasons for the Court of Appeal to consider Poole J’s guidance, since it (and any amendments made by the Court of Appeal) will be influential – going forward – in determining the proper approach to disclosure of position statements to observers in Court of Protection cases.

The following very sketchy summaries of some key points from the skeleton arguments (and witness statements) of the parties are poor substitutes for access to the documents themselves^[3].

The Appellant’s case

Two skeleton arguments were advanced on behalf of the appellant, the first from Parishil Patel KC and Eliza Sharron, the second “replacement” skeleton from Alex Ruck Keene KC (Hons). They differ in emphasis and detail and I’ll focus on the key arguments of the replacement skeleton here.

1.  Procedural irregularities in relation to the applications I made to the court for disclosure

The appellant argues that the procedure adopted by the judge was unjust because I had already requested disclosure of the position statements from the earlier hearings and the judge had ruled that I could have them “at the discretion of the parties”.  Two of the parties used their discretion to refuse.  Now I was going behind the judge’s earlier decision by reissuing an application in my written submissions following the final hearing – and the judge made a different decision.

2.  The principle of open justice simply does not apply in Court of Protection proceedings

It is common ground that (under r.4.1(1) CoPR 2017) ‘The general rule is that a hearing is to be held in private’. The ordinary practice since the incorporation of the Transparency Pilot 2016 is then for the judge to order that hearings should be in public, subject to reporting restrictions (the transparency order).  According to the appellant, the decision to hold a Court of Protection hearing in public does not make it a “public hearing” in the same way that hearings that are public by default are “public”.  

In Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815, Lords Reed and Briggs made clear (at paragraph 119) that: “…it is established by Scott v Scott that the open justice principle had no application to the Haastrup proceedings [which were at all times held in private]. There is no constitutional principle that is infringed by a prohibition on the publication of the names of witnesses in proceedings held in private under the parens patriae jurisdiction.”

The Appellant says that Scott v Scott [1913] AC 417 made clear (in different ways) that proceedings in lunacy were not covered by the open justice principle and suggests that the relevant principle is not ‘open justice,’ but ‘transparency.’

This means that Poole J’s references in the published judgment to  ‘derogation’ from the principle of open justice is incorrect, and his reliance on published judgments from proceedings that are public by default (e.g. Hayden v Associated Newspapers Limited [2022] EWHC 2693 (KB); Moss v The Upper Tribunal [2024] 4 WLR 99 and R (MPC) v PMP [2025] EWHC 1462) cannot be sustained.

This also means that the customary practice, in the Court of Protection, of carrying out a balancing exercise between Article 8 and Article 10 ECHR rights is fundamentally misplaced.  The appellant’s argument is that freedom of expression is not being restricted, but supported, by the making of a Transparency Order, so any balancing exercise involved is qualitatively different from the exercise involved when restrictions are being imposed in relation to the sharing of information about public proceedings.

The appellant also raises a number of practical concerns: e.g. the time the court devotes to considering and arranging  observer access to hearings and requests for documents, the ‘dehumanisation’ of P by the use of initials in position statements, the court’s inability to control dissemination of position statements after they’ve been sent to an observer.

There’s a particular concern about the Guidance at §36(5) of the judgment (quoted above), which says that position statements can be provided to non-parties, without authorisation of the court: this, says the appellant, does not comply with r.5.9(2). There’s also a concern that Poole J did not consider redaction before directing disclosure.

The appellant seeks a quashing order, an order that I must destroy the position statements sent to me in accordance with the court’s direction, and a judgment specifically saying  that the approach set down by Poole J as to how future requests for position statements should be handled is not to be followed.

Intervention from Celia Kitzinger

I do not consider the procedural point (Ground 1 of the appeal) to be well-founded. The judge is obviously not bound by an earlier position adopted without substantive argument. He correctly considered the matter afresh when position statements from all parties were not forthcoming.  Poole J had a wide discretion to make this case management decision, and the appellate court should be reluctant to interfere.

The key issue in this appeal relates to para 36.4 and para 36.7of Poole J’s decision; namely whether Rule 5.9(2) of the Court of Protection Rules 2017, which codifies the common law principle of open justice, and the key rule regarding the supply of documents to a non-party, requires authorisation of the judge to decide whether position statements should be given to a non-party. Poole J’s guidance says it does not. I accept this is unlikely to be compatible with Rule 5.9(2) which requires an application to, and authorisation by the court. The appellant and the other intervenor appear to share this view.

The argument that open justice does not apply in the Court of Protection is quite extraordinary. Open justice is a fundamental constitutional principle that applies to all courts and tribunals. This has been made clear in many cases that have reached the Supreme Court or the Court of Appeal, many of which involved hearings which were private “by default”, but where the court or the relevant tribunal (in the exercise of its discretion) permitted a public hearing and/or allowed the disclosure of certain information from such a hearing. My legal team has compiled and presented summaries of ten such cases drawn from across proceedings involving children before the Family Division, mentally ill patients before Mental Health Review Tribunals, and matters of national security before the Investigatory Powers Tribunal.

Finally I note that the appellant could but did not make an application for a private hearing, and could but did not request redaction of her Court of Protection position statements before disclosing them.

I welcome consideration from the Rule Committee as to how observer requests (and hence the implementation of open justice) can be streamlined and made less time-consuming, for observers as well as for the court and more generally on how (collaboratively) we can all do open justice better.

I have also submitted a witness statement which details the contribution that open justice has already made in the Court of Protection, including improving the conduct of remote hearings (based on my feedback early on in the pandemic), supporting public understanding of the Mental Capacity Act, the work of the Court of Protection and the rule of law, facilitating family members of future P’s to observe the court and hence to participate more actively in their own families’ future hearings, and contributing to the development of guidelines (e.g. on closed hearings and contempt of court).

Intervention from Sarah Castle, the Official Solicitor

The role of the Official Solicitor is to represent the best interests (as she sees them) of the protected party – and this is key to her decision-making about whether or not to accede to requests for position statements.  She takes as a starting point P’s Article 8 rights to respect for privacy and family life. The role of balancing that against Article 10 rights lies with the judge, and not with her.  I have received many times from many counsel the following standard template response to my request for position statements:

_{The Official Solicitor, as P’s litigation friend, is required to conduct the proceedings in P’s best interests; and approaches the request for a copy of the position statement on that basis. She is not able to establish what P’s wishes and feelings are in respect of the request, nor what beliefs and values would influence P’s decision if s/he were able to make it for herself. In those circumstances it seems to her to be a reasonable assumption that P would want, as far as possible, to maintain her / his privacy, and to limit (as far as possible) the extent to which personal information about her / him is provided to observers, even when those observers are bound by a transparency order. For that reason, the Official Solicitor refuses the request to provide a copy of the position statement. She recognises that you are entitled to ask the court for a direction that you should be provided with a copy; and recognises that the court, if asked to make that same decision, will do so on a different basis than she has done as P’s litigation friend, and may well come to a different conclusion.}

Sarah Castle has submitted a witness statement reporting findings from a small survey (30 or so respondents from COPPA, the Court of Protection Practitioners’ Association) to draw attention to the difficulties that practitioners experience as a result of the current practice of observers making requests for position statements at the start of or even during hearings and points out that precious court time allocated to consideration of P’s best interests, can instead be taken up by argument about provision of documents to observers. Like the appellant, she expresses concern about whether and how position statements are stored by observers (and the need to prevent access by a third party) and whether and how they are eventually destroyed. A few survey respondents also reported strongly negative effects on P of having observers in court, including self-harm and disengagement of P from the proceedings about them. She also raises concerns about “evidence” included in position statements (e.g. medical details, or accounts of their spiritual beliefs) and emphasises the importance of considering redactions and the question of who pays for the cost of anonymising/redacting position statements. 

I hope this brief summary of the arguments will assist in understanding the hearing.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

[1] Neither the Court of Protection nor the Court of Appeal has specific rules for joining intervenors, but CPR Part 19.2(2)(a) provides: 19.2(2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings…

[2] See: https://www.mentalcapacitylawandpolicy.org.uk/transparency-in-the-court-of-protection-what-is-it-good-for-and-how-long-should-restrictions-last/;  https://www.iclr.co.uk/ic/2025036482; https://spirebarristers.co.uk/2025/11/25/public-law-newsletter-november-2025/;  JF v London Borough of Hackney & Anor[2025] EWCOP 48 (T1)

[3] I have been advised not to quote from skeletons (even my own) without the express permission of the court, so it’s possible that my attempts to paraphrase will inadvertently lose nuances of meaning or introduce errors – I’m happy to correct any such and to quote verbatim if given permission to do so. For now, this is my best effort. Disclosure of the skeleton arguments to all those who want them would of course provide maximum accuracy and transparency for this case.