G (Adult), Re

These are personal welfare proceedings in the Court of Protection. They relate to an elderly lady, G, who is 94 years old. She is represented by the Official Solicitor as her litigation friend. The proceedings were launched, in circumstances I describe below, by the London Borough of Redbridge. The two other parties to the proceedings are G’s two carers, C and F. I have before me an application by Associated Newspapers Limited (ANL), publishers of the Daily Mail.

The background is described in some detail by Russell J in a judgment handed down on 26 February 2014: The London Borough of Redbridge v G and others [2014] EWHC 485 (COP). The judgment is in the public domain and available to all on the BAILII website. Russell J described (para 39) how the litigation had begun with an application by the local authority to the High Court under the inherent jurisdiction (FD13P02067), the local authority taking the view that, although G was a vulnerable adult, she did not lack capacity. That view was put in question when the matter came before His Honour Judge Clifford Bellamy (sitting as a Deputy High Court Judge) on 14 November 2013. The issue of capacity thereafter fell to be determined by Russell J at a hearing on 17-18 February 2014. In her judgment, Russell J found (para 82) that, on the balance of probabilities, G lacked capacity under sections 2 and 3 of the Mental Capacity Act 2005 and accordingly that the case fell under the jurisdiction of the Court of Protection. She added that she did not consider it necessary to rule on any application under the inherent jurisdiction. It was in consequence of this that the local authority issued the application in the Court of Protection (124555450).

On 17 February 2014 Russell J had made a reporting restriction order in the High Court. It was in fairly standard form. So far as still relevant for present purposes it prohibited the identification of G, C and F. In her judgment she explained why (paras 89-92). The order referred to by Russell J in para 91 was made on 18 February 2014.

On 18 March 2014 the local authority made an application seeking:

The application came before Cobb J on 26 March 2014: The London Borough of Redbridge v G and others [2014] EWHC 959 (COP). Again, the judgment is in the public domain and available to all on the BAILII website. Cobb J described (para 8) how, by the time the matter came before him, the relief being sought had, so far as relevant for present purposes, been refined into an order that:

Cobb J further described (paras 21-22) how at one stage the local authority’s application to restrict G’s access to the press was framed by a proposed requirement that C should give 48 hours’ notice to the local authority if she wished to arrange a meeting between G and members of the press, and how the Official Solicitor had proposed, alternatively, that any question of G speaking to the press should be dealt with by a representative of the press making an application to the court on 48 hours’ notice. “That”, said Cobb J, “seemed to me to be placing an improper burden on the press.” I make clear that, as counsel informed me, this is no longer the Official Solicitor’s suggestion.

Cobb J continued (para 26):

Cobb J gave the local authority leave to instruct Dr Andrew Barker, a consultant in old age psychiatry who had previously given evidence as to G’s capacity, to undertake a capacity assessment “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.” He continued (para 27):

Cobb J then turned to consider the question of interim relief under section 48 of the Act. He concluded (para 31) that there was, within the meaning of section 48(a), “reason to believe” that G did indeed lack capacity in relation to decisions concerning communications with the press. He then (paras 34-39) surveyed the evidence relevant to the question under section 48(c) – was it in G’s best interests to make an order “without delay” – before concluding as follows (para 40):

I should add this. In the course of his judgment, Cobb J referred (para 9) to the fact that he had read three press reports of the proceedings, two authored by Mr Christopher Booker and one written by Ms Sue Reid. He commented (para 20):

So far as material for present purposes, the order made by Cobb J contained interim declarations as to G’s lack of capacity to make decisions about “her … contact with others, including the Press” and (para 5) that “it is not in G’s best interests to communicate with the Press at this stage, and until further order.” There was an injunction until further order in the terms set out in para 5 above.

Directions were given (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 ANL a summary of the key conclusions and recommendations of Dr Barker (Footnote: ¹) and (if applicable) its decision on best interests. There was a direction that if ANL 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 the hearing on 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.

On 28 March 2014 the local authority, avowedly in compliance with Cobb J’s order, made an application seeking “A declaration that G lacks (or does not lack) the capacity to make decisions about her contact with the press (and any other media) journalists and, if she lacks that capacity, as to her best interests in that regard.”

On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council[2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

The same day (8 April 2014) ANL 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”. The application was supported by a witness statement by ANL’s solicitor. That statement, as is typical in such cases, is more argumentative than factual, but nonetheless revealing. I quote some of the more revealing passages:

ANL’s application came on for hearing before me on 16 April 2014. ANL was represented by Mr Adam Wolanski, the local authority by Ms Laura Davidson, G by Mr Gavin Millar QC and Mr Parishil Patel, C by Ms Barbara Hewson and F by Ms Ulele Burnham. 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.

In his oral submissions on behalf of ANL, Mr Adam Wolanski broadened his approach to suggest that, quite apart from ANL’s rights under Article 10, Ms Reid’s rights under Article 8 were engaged by reason of her dealings with G.

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.

Before addressing the specifics of ANL’s application, it will be convenient to sketch out some basic principles which, as it seems to me, go to the heart of the issues I have to determine.

I start with Article 8 and the analysis in Re S (Adult Patient) (Inherent Jurisdiction: Family Life)[2002] EWHC 2278 (Fam), [2003] 1 FLR 292, paras 35-45; see also Re Roddy (A Child) (Identification: Restriction on Publication)[2003] EWHC 2927 (Fam), [2004] 2 FLR 949, paras 35-38. For present purposes I can summarise matters as follows.

First, 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.

I should add that, as Mr Millar correctly submits, the State 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,[2004] EMLR 379, para 57, and Rekos v Greece [2009] EMLR 290, paras 35, 41.

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.

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. As I said in Re S, para 45, referring to what Sedley LJ had said in In re F (Adult: Court’s Jurisdiction) [2001] Fam 38, 57:

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 [2011] EWHC 1330 (COP), [2011] COPLR Con Vol 273, para 52:

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[2009] EWHC 2525 (Fam), [2011] 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.

I turn to Article 10.

Article 10 protects two distinct rights, the right to “receive” and the right to “impart” information and ideas. When a journalist, J, publishes a story received from a source, S, Article 10 is, as Mr Millar pointed out, 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.

Where, as in the present case and as in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council[2005] EWHC 1144 (Fam), [2005] 2 FLR 913, a case much relied on by Ms Burnham, a 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.

First, 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 (as to which see In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, 25-27), 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 this 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. This is, as Mr Millar submits, because of the principle in Leander v Sweden (1987) 9 EHRR 433, para 74:

Recent years have, however, seen 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. The difficulty in divining either the current state of the Strasbourg jurisprudence, let alone its possible direction of travel, is starkly illustrated by the recent decision of the Supreme Court in Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 WLR 808. Be all that as it may, nothing turns upon it here. For 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.

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.

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.

In E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council[2005] EWHC 1144 (Fam), [2005] 2 FLR 913, what was sought was an injunction to restrain broadcasting of filmed material which the broadcaster already had ‘in the can’. The injunction was appropriately sought against the broadcaster, whose Article 10 right to ‘impart’ was thus directly engaged.

In the present case in contrast, where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

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, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this 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.

But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council[2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; 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.

Assuming that 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 or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment 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.

As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “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. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

Of course, 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.

I turn to the relief being sought by ANL.

ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person's best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), 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. On 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[2014] 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.

I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, 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.

In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

I should add this, 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.

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

In my judgment ANL’s application fails and must be dismissed.