Judge: Cobb J
Citation:  EWCOP 64
In this case, Cobb J had to consider whether P’s maternal aunt should be joined to welfare proceedings. The aunt, KK, had been P’s main carer for almost all of her childhood; they had last lived together 3 years previously, and they currently had contact with each other. At first instance, HHJ Hayes QC had refused KK’s application for party status; KK sought permission to appeal this decision to Cobb J.
KK’s application had been (and continued to be) resisted by both the applicant local authority and the Official Solicitor on her niece, DK’s, behalf. At the hearing below, they presented and sought to rely upon, information which, although acknowledged to be relevant to the issue before the court, they wished to keep confidential from KK. HHJ Hayes QC received this documentary confidential material, and read it. Neither KK nor her lawyers were given access to this material. HHJ Hayes QC gave a separate shorter judgment in which he expressed his view about this confidential material, and its significance to the decision. A preliminary issue arose before Cobb J as to whether he, too, should read the material. No party argued that he should not, but Counsel for KK drew his attention to the guidance given by Lord Neuberger in Bank Mellat v HM Treasury (No.2)  UKSC 38 as to the potential difficulties that would arise. Cobb J directed himself that it was necessary for him to read the material and the supplementary judgment.
There was no dispute between the parties (and Cobb J was satisfied) that HHJ Hayes QC had identified and applied the relevant test on joinder and party status, set out in COPR 2017 rr. 9.13 and 9.15. Cobb J noted at paragraph 31 that endorsed his approach that in considering the desirability” test in COPR r.9.13(2), the “sufficient interest” of the applicant for party status is likely to be relevant. Crucially, HHJ Hayes QC had reached the conclusion that (1) revealing to KK what the confidential evidence was would mean that DK would be likely to disengage from her engagement both with professionals and with these proceedings; (2) joining KK to the proceedings notwithstanding that written evidence would lead to the same consequences; and (3) this would undermine the process of ensuring DK’s participation in the proceedings. HHJ Hayes QC found that he could not resolve the problem by joining KK as a party and then exercising the court’s power to limit or redact disclosure, as the very fact of joinder would be to bring about the adverse consequences he was seeking to avoid.
As Cobb J identified, therefore, the real dispute in this appeal focused on HHJ Hayes QC’s management and deployment of the confidential material and its impact on his decision.
There was “an appropriately accepted premise by all counsel in this case that it is contrary to the principle of open justice for a judge to read or hear evidence, or receive argument, in private; they rightly and unanimously accept that open justice is fundamental to the dispensation of justice in a modern, democratic society (per Lord Neuberger in Bank Mellat v HMT at §2/§3). It follows that generally, every party has a right to know the full case against him, and the right to test and challenge that case fully. I say ‘generally’ because there are, as counsel in this case properly recognised, exceptions to this.”
There is, however, nothing in the MCA 2005 nor in the COPR 2017 which specifically govern the correct approach to managing sensitive material which is the subject of an application for non-disclosure. After a careful analysis both of the underlying judgment of HHJ Hayes QC and the competing arguments put before him on appeal, Cobb J drew the threads together as follows at paragraph 41:
it seems to me that a judge faced with the situation faced by HHJ Hayes QC at the hearing of the application for party status should consider the following points:
iii) The best interests of P, alternatively the “interests and position” of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005 when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P’s participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same […];
vii) In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail […];
viii) The judge should always consider whether a step can be taken (one of the ‘procedural mitigations’ referred to at  above) to acquaint the aspirant with the essence of sensitive/withheld material; by providing a ‘gist’ of the material, or disclosing it to the applicant’s lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances.
On the facts of the case, Cobb J was satisfied that HHJ Hayes QC rightly prioritised (so far as was reasonably practicable), the need to permit and encourage DK to participate in the proceedings which concern her, and/or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her (MCA 2005, s.4(4)). On the specific facts of the case, HHJ Hayes QC was not wrong to conclude that the very act of joining K would be to bring about adverse consequences for DK and to defeat the very purpose of the proceedings. Although unusual, the process by which HHJ Hayes QC had reached this conclusion was not fundamentally unjust. Cobb J also held that he had been correct to prepare a short supplementary judgment setting out his conclusions relevant to the confidential material, if for no reason because it enabled the appellate court to assess the extent to which, if at all, the confidential material has had a bearing on the overall outcome.
At paragraph 48, Cobb J concluded with two short points in dismissing the appeal.
As Cobb J notes, it is very unusual for a person who has played – and appeared to play – so important a part in P’s life not to be joined as a party to proceedings where they wish to be joined. A function of the nature of the proceedings is that, whilst two judges were clear that KK should not have been on the facts of the case, others cannot know why this was the case. Any case in which reliance has to be made upon confidential material arises deep concern, as was clearly caused to both HHJ Hayes QC and Cobb J, and the outcome can never feel entirely satisfactory. Nonetheless, it is clear that both judges, applying, in turn, a line of case-law which emphasised the rigour with which any limitation upon disclosure of information to either a party or putative party has to be considered, gave the position very anxious scrutiny.
It is unlikely that the position that HHJ Hayes QC encountered will crop again often in the future, but at least there is now a clear route-map for parties / putative parties and the court to follow.