Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) concerns a question of increasing importance given (in particular) the sterling work of the Open Justice Court of Protection Project: namely when and how can position statements be provided to observers? Poole J has rolled up his sleeves, and given the following answer:
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:
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.
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.”
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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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).
Poole J noted that:
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,[1] it appears to me to be the best that can be achieved. For my part, I would add that:
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.
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 factodefeated if, say 50 observers were all provided with that information.
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.
[1] I would add to this list the Mental Capacity Act 2005, because many of the problem with the sometimes convoluted procedure around transparency orders stem from the fact that there is no adequate protection in primary legislation for the privacy rights of P when proceedings move from private to public (reflecting the fact that the MCA 2005 was drawn up at a time when the idea of routinely holding hearings in public would have struck many as unthinkable).
