In our report upon this case in the May Newsletter, we noted that we were awaiting with great interest the judgment of the President in the hearing we knew had occurred. That judgment was sent to us just as the Newsletter went to press.
The underlying facts relate to the applications made by the London Borough of Redbridge (‘Redbridge’) in relation to an elderly lady, G, considered to be a vulnerable adult, arising out of concerns regarding the behaviour of her live-in carer, C, and another carer, F, and their influence over G, her home and her financial affairs and with respect to her personal safety. In February 2014, Russell J held that G lacked the capacity to take the material decisions, such that proceedings relating to her welfare (and, in particular, as to the continued residence of G with her) were to continue in the Court of Protection.
Subsequent to that decision, Redbridge became increasingly concerned as to the fashion in which G appeared to be used by C and F in a campaign involving the press. They sought by an application issued in the Court of Protection on 18 March an order “forbidding C and F, whether by themselves or instructing or encouraging others, from making any decision on behalf of or in relation to G, other than those in relation to day to day care without first discussing the same with G’s litigation friend or litigation friend’s representative.” That general form of relief was distilled down and adapted into more specific provisions, of which the most material was the order sought that: “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings…” And further: “requiring C and F to facilitate visits by an employee of the applicant authority to G twice weekly on Tuesdays and Fridays. For those purposes C and F would be required to provide full and unfettered access to G and ensure they do not remain in the property during the visits.”
The matter came on for a hearing before Cobb J which was attended (with his permission) by authorised accredited members of the press, subject to a Reporting Restriction Order. Much of the hearing was dedicated to consideration of what, if any, orders he should make in relation to G’s (or C’s) contact with the press concerning the proceedings. Cobb J concluded that he had, as a first step, to determine whether G had capacity to communicate directly with the press, and ordered a capacity assessment upon the point “specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing” (paragraph 26). Cobb J required that “Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form” (paragraph 27).
In the interim, Cobb J made an order under s.48 MCA 2005 that it was not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media.
Cobb J made directions (i) requiring the local authority by 4pm on 28 March 2014 to “make an Application … seeking a decision of the Court in relation to G’s capacity to make decisions about contact with the Press, and, if applicable, her best interests with respect to the same” and (ii) should Dr Barker conclude that G lacks capacity to make decisions about contact with the Press, requiring the local authority by 4pm on 16 April 2014 to file and serve on Associated News Limited (‘ANL’) a summary of the key conclusions and recommendations of Dr Barker and (if applicable) its decision on best interests. There was a direction that ANL if wished to vary or discharge the reporting restriction order it was to make its application by 23 April 2014 (no such application has been made). Finally, so far as material, Cobb J directed that a hearing be listed for 2 May 2014 was to consider (a) the capacity and, if applicable, the best interests of G in relation to communications with the Press, (b) any application to vary or discharge the reporting restriction order, and (c) any other application.
ANL then made an application seeking (a) to be joined as a party to the proceedings and (b) to be permitted to provide their own instructions to Dr Barker “to ensure that all issues relating to capacity are fully considered and covered by the letter of instructions to him.”
ANL’s application was listed before the President on 16 April 2014. By then the relief ANL was seeking had been refined. What was sought was an order that (1) ANL be joined as an interested party to the proceedings on the issues of (a) G’s capacity to communicate with third parties including the media; (b) in the event G is assessed as lacking capacity, whether it would be in G’s best interests to communicate with third parties including the media; and (c) the Reporting Restriction Order in place dated 17th February 2014; and that ANL are served with all information in these proceedings in respect of these issues and has permission to make representations on these issues in these proceedings; (2) that the local authority serve on ANL a copy of the report of Dr Barker; and (3) that ANL have permission to make representations to Dr Barker within seven days of being served with his report and for Dr Barker to take these representations into account and revise his report if appropriate.
ANL’s application was opposed by the Official Solicitor on behalf of G and by the local authority. It was supported by C and, up to a point, by F, who although not advocating that ANL be joined was concerned that ANL be permitted active participation in relation to those issues in which it had an interest.
The legal framework: Article 8
Starting with the analysis in Re S (Adult Patient) (Inherent Jurisdiction: Family Life)  EWHC 2278 (Fam),  1 FLR 292, paras 35-45 and Re Roddy (A Child) (Identification: Restriction on Publication)  EWHC 2927 (Fam),  2 FLR 949, paras 35-38, the President noted the following core principles:
(1) The private life protected by Article 8 includes the right of a person to define the ‘inner circle’ in which he chooses to live his life, including in particular the right to decide who is to be excluded from his ‘inner circle’. Article 8 therefore embraces both X’s right to decide to establish and develop a relationship with Y (qualified, of course, by Y’s right to decide that he does not wish to establish a relationship with X) and X’s right to decide not to establish or continue a relationship with Z. The State also has a positive obligation under Article 8 to ensure that X’s right to respect for private life is not violated as a result of press intrusion or harassment: see, for example, Von Hannover v Germany (2003) 40 EHRR 1, EMLR 379, para 57, and Rekos v Greece  EMLR 290, paras 35, 41;
(2) Secondly, if for whatever reason, good or bad, reasonable or unreasonable, or if indeed for no reason at all, X does not wish to have anything to do with Y, then Y cannot impose himself on X by praying in aid his own Article 8 rights. For X can pray in aid, against Y, X’s own Article 8 right to decide who is to be excluded from X’s ‘inner circle’, and in that contest, if X is a competent adult, X’s Article 8 rights must trump Y’s. It necessarily follows from this that, absent any issue as to X’s capacity or undue influence, X’s refusal to associate with Y cannot give rise to any justiciable issue as between Y and X;
(3) Thirdly, if X lacks capacity, Y’s Article 8 rights can no more trump X’s rights than if X had capacity. Y cannot impose himself on X by praying in aid his own Article 8 rights. Y’s Article 8 rights have to be weighed and assessed in the balance against X’s Article 8 rights. If Y’s rights and X’s rights conflict, then both domestic law and the Strasbourg jurisprudence require the conflict to be resolved by reference to X’s best interests. X’s best interests are determinative.
Importantly, Sir James Munby continued,
“26. In the event of dispute, it is for the court – here the Court of Protection – to determine on behalf of X what X’s best interests require. What is the nature of that process? As Baker J aptly put it in Cheshire West and Chester Council v P and M  EWHC 1330 (COP),  COPLR Con Vol 273, para 52:
‘The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests.’
I agree. I add that, as Mr Millar [on behalf of G] points out, the court, in coming to a decision on best interests must proceed in accordance with sections 1(6), 4(6) and 4(7) of the Act.
27. Given the nature of the conflicting rights under Article 8 as I have described them, and given the nature of the Court of Protection’s functions and procedures, it follows in my judgment that the identification by the Court of Protection of X’s best interests does not give rise to any justiciable issue as between Y and X. Section 4(7) of the Act may in appropriate circumstances require the Court of Protection to consult Y and take into account Y’s views on the question of what would be in X’s best interests (and in any event Y’s views may be a “relevant circumstance” within the meaning of section 4(2): see In re M (Statutory Will), Practice Note  EWHC 2525 (Fam),  1 WLR 344, para 36), but that is far removed from suggesting that there is any justiciable issue as between Y and X. There is not. Nor is there any justiciable issue as between Y and X in relation to the question of X’s capacity.”
The legal framework: Article 10
Turning to Article 10, Sir James Munby P noted that it protected two distinct rights, the right to “receive” and the right to “impart” information and ideas. In other words, as he held at paragraph 29, when a journalist, J, publishes a story received from a source, S, Article 10 is engaged in four distinct ways: (i) S is imparting information to J; (ii) J is receiving information from S; (iii) J is imparting information to J’s readers; and (iv) J’s readers are receiving information from J.
This meant that, where the court is being asked to make orders designed to prevent something being published in the media, the desired objective can in principle be achieved in two quite different ways:
(1) If there is some appropriate legal basis for doing so, for example, if S is threatening to disclose information in breach of a duty of confidence owed by S to T, or, when a family court makes a specific issue order against a parent forbidding the parent from disclosing information about the parent’s child, the court can grant an injunction restraining S from imparting the information to J. Unless J has already received the information from S, there is no need to obtain any order against J, for the story has been cut off at source. In such a situation, the court is concerned only with S’s Article 10 right to impart information; it is not concerned with J’s Article 10 right to receive information, let alone with J’s right to impart information which J has not in fact received. The President noted the gradual emergence in the Strasbourg jurisprudence of the idea that Article 10 may perhaps in some circumstances confer a right of access to information, but (whatever the precise scope of the right), nothing turned upon it in the case before him because on any view the right of access to information, if it exists at all, arises only in relation to information held by a public body, and the information in issue here is that held by G, C and F, that is, by private individuals.
(2) Alternatively, or additionally, the circumstances may justify an order restraining J from imparting to others information received by J from S. Here, J’s Article 10 rights are directly engaged: both J’s right to receive information from S and, most of all, J’s right to impart that information to others.
As the President noted, it is important to be clear as to which of these various rights are actually engaged in the specific forensic context with which the court is concerned in the particular case. This was not a case such as E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council  EWHC 1144 (Fam),  2 FLR 913, where what was sought was an injunction to restrain broadcasting of filmed material which the broadcaster already had ‘in the can’. Rather, this was a case in which the only relief sought against ANL (other than a continuation of the existing reporting restriction order); it was therefore not an ‘imparting’ case but, at best, a ‘receiving’ case.
In such a case, the starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which is protected by Article 8 and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and J’s reliance on Article 10 will avail him nothing. From this, the President held (at paragraph 38), it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.
What, if any difference, did it make that S (in this case G) arguably lacks capacity? It was relevant for two reasons:
(1) because the Court of Protection has jurisdiction only in relation to those who lack capacity;
(2) second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.
If S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection on behalf of S takes the decision which, lacking capacity, S is unable to take himself. As the President noted (at paragraph 43) , for essentially the same reasons as in relation to Article 8, it followed that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.
“the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander [(1987) 9 EHRR 433], “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree.” (paragraph 44)
The President noted that the court’s best interests decision in relation to S is not necessarily determinative:
“If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought” (paragraph 45).
Against this detailed analysis of the rights in play, and the precise way in which they arose for consideration by the court, Sir James Munby P was able to dispatch the application by ANL with some speed:
(1) ANL’s application to be joined as a party was misconceived, he found, because:
(a) the relief being sought by the local authority gave rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there as no reason for ANL to be joined;
(b) further, applying Re SK (By his Litigation Friend, the Official Solicitor) EWHC 1990 (COP), Sir James Munby P held ANL could not be said to have a ‘sufficient interest’ to apply to be joined as a party under COPR r75(1), nor could it be said that its joinder was desirable for purposes of COPR r73(2);
(c) Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), the President held that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. As Sir James Munby held (paragraph 51), “[o]n the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another  EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.” Indeed, the President noted that there appeared to be no case in either proceedings involving children or incapacitated adults where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.
(2) ANL’s other applications fell away in light of the President’s decision upon their first application: if it were not to be joined as a party, he held that there was no basis upon which it could claim either to see Dr Barker’s full report or to ask him questions (paragraph 53).
“54. […] in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.”
(4) Finally, in relation to an argument based upon rights asserted under Article 8 ECHR in relation to Ms Reid, a journalist for the Daily Mail, the President noted (paragraph 55), that (1) there was no application by Ms Reid; the application is by ANL; and (2) more fundamentally, it made no difference whether the argument is put on the basis of Article 10 or Article 8. Sir James Munby P held that neither provided any foundation for the grant of relief of the kind being sought by ANL.
I note, finally, that certain material that was to be filed by Redbridge was, in fact, filed late, and Sir James Munby P took the opportunity of making clear to practitioners in the Court of Protection that “what I said in Re W (A Child), Re H (Children)  EWCA Civ 1177, paras 49-55, as to the need for strict and timely compliance with orders (including directions orders) made in the family courts applies with equal force to orders made in the Court of Protection.”
This is a characteristically robust judgment by the President; and is particularly interesting in light of the clear drawing of the line that it marks between:
(1) On the one hand, increased transparency within Court of Protection proceedings (including both greater publication of judgments and the mooted access of journalists both to proceedings and – in due course – documentation); and
(2) On the other hand, the very limited role of the press in the taking by the Court of Protection about decisions in relation to those alleged to lack capacity to determine whether they wish to have contact with journalists.
The judgment is also of interest, I note, for its very clear endorsement of the proposition that the Court of Protection is an inquisitorial jurisdiction, operating in a very different forensic sphere to the civil courts. It seems to me that this is self-evidently correct, although I note that its implications are very much less worked out than they have been in the context of proceedings relating to children and I also note that, if the jurisdiction is truly inquisitorial, the system should be resourced so as to provide in all cases where such is required the equivalent of a Children’s Guardian to carry out an investigatory and reporting function that is very different to the role played by a litigation friend acting on behalf of P.