Bristol City Council v CC & Ors

This short judgment is given in accordance with paragraph 20 “Guidance for the Court of Protection: ‘Closed hearings’ and ‘closed material’” [2023] EWCOP 6 dated 9 February 2023 (“the Guidance”) and follows the court approving orders agreed between the parties on 10 December 2025 in a closed hearing

These proceedings concern CC, who acts through his litigation friend the Official Solicitor. CC lacks capacity to conduct these proceedings, and there is reason to believe that he lacks capacity to make decisions regarding his care and support. He has capacity to make other decisions about other aspects of his life, some decisions only with the benefit of extra support. CC is subject to an interim order, most recently dated 9 December 2025, which authorises his deprivation of his liberty within a family home in accordance with a care plan dated 25 November 2025, pursuant to section 48 and sections 4A(3) and (4) and section 16(a)(a) of the Mental Capacity Act 2005 (MCA 2005).

The open part of the proceedings are timetabled to a final best interests hearing on 17 March 2026 which will primarily consider where CC should live on a long term basis, the care and support he requires, and whether that level of care and support constitutes a deprivation of liberty which requires the ongoing authorisation of the court..

The order I approved in the closed hearing on 10 December 2025 in effect permitted the disclosure of all the material that had been subject to previous orders in the closed proceedings, save for information that was based on police intelligence.

In accordance with the Guidance applications for material to be withheld should be dealt with at T3 level. Such applications should also have the benefit of judicial continuity at T3 level too.

The starting point is that all parties should have sight of all material upon which the court will reach its conclusions.

The power of the Court of Protection to order that materials be closed derives from the court’s inherent jurisdiction as a superior court of record and its wide case management powers set out in the Court of Protection Rules 2017 (“COPR”), in particular those under Part 3 of the COPR.

Following Re A (Covert Medication, Closed Proceedings) [2022] EWCOP 44, guidance was prepared by the COPR to establish a clear procedure for closed hearings and the use of closed material. The guidance produced is the “Guidance for the Court of Protection: ‘Closed hearings’ and ‘closed material’” [2023] EWCOP 6 dated 9 February 2023 (“the Guidance”).

Paragraph 4 of the Guidance is not in and of itself binding upon the court (as is made clear by paragraph 4) however the principles set out have their foundation in applicable authority.

Paragraph 5 of the Guidance states as follows:

“a.

The Court of Protection has powers to exclude parties from hearings and to withhold information from parties;

b.

Those powers have to be exercised in accordance with the overriding objective, common law obligations of fairness, and the European Convention on Human Rights;

c.

A decision by the Court of Protection either to direct a closed hearing or the closure of material is a case management decision, governed by the overriding objective contained in COPR r.1.1, not a best interests decision for purposes of s.1(5) Mental Capacity Act 2005.”

Paragraph 6 of the Guidance confirms that the starting point for any application is that, in furtherance of the principles of open justice, all parties to proceedings should be entitled to see all materials used during proceedings to allow them to consider the contents of the materials and make arguments in respect of the materials.

Paragraph 7 of the Guidance sets out two bases from which there can be derogation from that overarching principle:

“1.

The most likely to arise in practice is where such is required to secure P’s rights under the ECHR.

“2.

Where there is another compelling reason for non-disclosure.  It could be that a party seeks to justify non-disclosure of material (or a closed hearing) in their own interests or on the basis of a wider public interest (for instance protecting operational details of policing or national security).   It is likely that the former will be more difficult to justify than the latter.”

As to the principles that the court should apply when considering any application for closed material, the Guidance provides as follows:

Paragraph 23 of the Guidance sets out a proposed procedure for considering applications under paragraph 7.1 of the Guidance (where it is argued that the closure of materials is required to secure P’s rights under the ECHR):

“1.

When deciding whether to direct that a party should not be able to inspect the part in question, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to P;

2.

If it would, the court should next consider whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur;

3.

If the court is satisfied that the interests of P point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the other party in having an opportunity to see and respond to the material.  In the latter regard the court should take into account the importance of the material to the issues in the case;

4.

In all cases, the test for non-disclosure is whether it is strictly necessary to meet the risk identified by the court.”

Paragraph 24 of the Guidance states that the court should also adopt this staged approach when considering applications under paragraph 7.2 of the Guidance (where it is argued that the closure of materials is required for some other compelling reason other than securing P’s rights, in particular the interests of another individual or organisation or a wider public interest):

“If the basis for resisting disclosure is not the interests of P but some other compelling reason (see paragraph 3 above), the staged approach will remain relevant as regards the testing of risk, and the requirement that non-disclosure be strictly necessary to meet the identified risk.  However, the factors to put in the balance will include the nature of the interest relied upon, the interest of the party in question, and the impact of non-disclosure on the court’s ability to discharge its obligations towards P.”

These Court of Protection proceedings started in early 2024 when Bristol City Council (“the local authority”) made an application for welfare orders regarding CC’s residence, care and deprivation of liberty. There is a very long standing history of serious violent and aggressive behaviour by CC, including gang affiliation, weapon use and extensive involvement by CC with the police and the criminal courts.

On 4 April 2025 Avon and Wiltshire Mental Health Partnership NHS Trust (“AWP”) and NHS Bristol, North Somerset and South Gloucestershire ICB (“the ICB”) made an application to close material from CC’s mother, FF, and sister, DD, on the basis that, if disclosed, there was a risk of harm to CC and/or a risk of harm to others (particularly professionals working with CC).

At a hearing on 8 April 2025, without notice to CC (although junior counsel instructed on behalf of CC, through the Official Solicitor, was present), FF or DD, HHJ Robertshaw granted an interim order for the material requested not to be disclosed and made directions allocating the matter to a T3 judge. On 16 May 2025 McKendrick J continued the interim closed orders.

The matter first came before me on 3 October 2025, although I had made directions on the papers before then. FF had by then been discharged as a party. I made directions leading to the hearing on 10 December 2025, and specifically included consideration as to whether the information should remain closed from DD and/or, if not, whether DD should give an undertaking to the court not to disclose the material to anyone else. After that hearing DD secured legal representation.

The applications before the court on 10 December 2025 can be summarised as follows:

In the skeleton argument filed in advance of this hearing, AWP and the ICB stated they had reviewed their position and confirmed they considered it no longer strictly necessary to close the material from DD. DD now has the benefit of specialist legal representation. The updated evidence filed on behalf of AWP and the ICB outlines the progress CC has made. This includes no recent engagement with the police, positively engaging with professionals, managing recent changes in his care regime and managing well with support from DD when discussing contentious topics. Previously these issues would have caused CC to become unsettled, with a likely increase in his risky behaviours. It is recognised some of the information in the closed material may be upsetting for CC to receive but that is a matter for the Official Solicitor as his litigation friend. AWP has stated it is willing to provide any support to CC and DD regarding managing the disclosure of the closed material documents.

The position of ASC and HMPPS regarding their applications has evolved. Initially their applications were on the basis that disclosure would pose a risk of harm to CC and others and that disclosure would compromise the integrity of the MAPPA process and/or police intelligence.

Following the round table meeting and disclosure to ASC of the second witness statement of a clinician on 4 December 2025, the position of ASC was revised so that they only sought redaction of information that related to police intelligence, including information which had been gained by way of police tactics. In the updated witness statement filed on behalf of ASC they contend that disclosure of that information ‘would undermine the use of these tactics and prejudice ongoing operations and policing activity…Use of policing intelligence tactics is a matter of public interest…there is also an ongoing police operation in respect of one of CC’s relatives and their connection to criminal activity’. As regards HMPPS, it was drawn to their attention that CC and his family are aware that he is subject to MAPPA, as a result their application was not pursued.

Due to the impressive and very effective collaboration between the parties, ASC and HMPPS leading up to the hearing on 10 December 2025 the only issue they sought a steer from the court on was whether the local authority should have permission to withdraw the two exhibits they submitted were no longer relevant, or whether those documents should be redacted. Having heard submissions I concluded the better course was for the documents to remain in the trial bundle. They were part of the relevant history of the proceedings, even if they were no longer relevant and, if required, could be redacted.

I gave the parties further time to consider the issue of redactions as sought by ASC. In addition, as it did not appear it had been considered, I informed the parties that active consideration should be given to disclosure of the position statements/skeleton arguments filed in the closed proceedings.

The final order I was asked to approve contained a schedule attached to it detailing the redactions and one gist agreed between the parties to the closed proceedings. The basis for the redactions and gist are limited to the wider public interest founded on the redacted information being provided through police intelligence. I was taken through each of the proposed redactions and the gist and agreed, having undertaken the staged process outlined in the Guidance, that those redactions are justified and are strictly necessary. That order will be disclosed to DD, save for schedule 1 to the order which detailed the redactions.

I am satisfied that if those redactions/gist were not made it would harm ASC’s interest in maintaining the confidentiality of sensitive policing intelligence, intelligence gathering processes and the wider public interest in maintaining the confidentiality of such information. I have carefully weighed in the balance the relevance of the redacted material to the issues in the case and the impact of it not being known to DD and am satisfied now that the non-disclosure of this information, on a much more limited basis than was originally sought, is strictly necessary to meet the risk identified above. I am re-assured in that position due to the active involvement of the Official Solicitor in the closed hearings and the close scrutiny that her presence, coupled with the intervention of the court, has brought to bear on the issues. As provided for in the Guidance, this matter will be kept under active review.

It is recognised that the position of each applicant (regarding their respective closed material applications as summarised in paragraph 20 above) has been dynamic, and evolved as the situation on the ground has changed. However, this case has provided an important reminder of the need to adhere to the Guidance when considering whether an application should be made for a closed hearing/material. Prior to any such application being made there must be careful analysis of the legal and evidential basis upon which the court is being asked to order such a hearing, and for any material to be withheld in accordance with the principles so clearly set out in the Guidance.