Neutral Citation Number: [2025] EWCOP 16 (T3)
Case No: COP 14187074
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
IN THE INHERENT JURISDICTION OF THE HIGH COURT
AND IN THE MATTER OF CA
Date: 11th April 2025
Before:
Mrs Justice Arbuthnot DBE
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Between:
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NORFOLK COUNTY COUNCIL |
Applicant |
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CA (by her litigation friend, the Official Solicitor) |
1st Respondent |
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- and – |
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DA |
2nd Respondent |
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-and-
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CELIA KITZINGER (Open Justice Court of Protection Project) |
Applicant to vary the transparency order |
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Dr Oliver Lewis (instructed by NP Law) for the Applicant
Mr Oliver Woolley (instructed by Irwin Mitchell) for the 1st Respondent
Ms Caroline Grady (a litigant-in-person) is the 2nd Respondent
Professor Celia Kitzinger (a litigant-in-person)
Hearing date: 11th April 2025
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JUDGMENT
This judgment was handed down remotely to parties via email on 17th April 2025 at 17:38.
Background
1. On 10th October 2024 I gave judgment in the Court of Protection in the case of In the Matter of CA (Fact Finding - Capacity - Inherent Jurisdiction - Injunctive Relief). This was an anonymised judgment published as [2024] EWCOP 64 (T3).
2. The judgment combined decisions made in a fact finding, on capacity, declarations under the inherent jurisdiction and finally injunctive relief.
3. The facts I found included nine allegations made against "DA" (Caroline Grady) that she had verbally abused, threatened and physically abused her 79-year-old mother identified as CA and had subjected her mother to undue influence over a number of months in hospital and also at home. Some of the allegations were admitted by DA.
4. Two of the allegations were made against EA, CA's ex-husband. I found that he had tried to persuade CA to get rid of the carers that were looking after her.
5. I made various other decisions in the case but it was published with no identification of the parties save for Norfolk County Council. The judgment made it abundantly clear that the perpetrator of the abuse was the daughter of the victim.
Contempt Proceedings
6. On 28th January 2025, I held a committal hearing in contempt proceedings that Norfolk County Council had brought against CA's daughter Miss Caroline Grady for breaking undertakings she had given to HH Judge Beckley and for breaching an injunction I had made on 7th October 2024.
7. There were five alleged breaches. Four were admitted by Miss Grady and the fifth I found.
8. The contempt of court proceedings were held in public. Miss Grady was represented. Various observers were in court or attending remotely. I fined Miss Grady a total of £500. There was no application for costs made by Norfolk County Council.
9. I heard argument from the parties about whether Miss Caroline Grady should be identified in the judgment following the committal proceedings. Mr Lewis for Norfolk County Council contended that Miss Grady should be named but this was opposed by Miss Grady and Mr Woolley on behalf of AG by her litigation friend the Official Solicitor. The two bloggers who attended in-person argued that she should be named on the basis of open justice principles.
10. I decided that Miss Grady should be identified, but that CA should not be identified and nor should the relationship between Miss Grady and CA be set out in the committal judgment.
11. A Transparency Order was subsequently made and issued on 19th February 2025, which was an order preventing publication of certain information and under the heading "subject matter of the injunction" was at (4) (iii) of the order. "any material that identifies or is likely to identify the specific relationship between DB and the defendant". The initials DB referred to CA and were used in the unamended committal judgment that was not published.
12. This sub-paragraph of the Transparency Order has caused a number of problems for those wishing to publish details of the proceedings. Reporters have not been able to link the committal with the fact-finding and ancillary decisions made in the published judgment of 10th October 2024. This was foreseeable but I had not foreseen this issue when I made the order in January 2025.
Final hearing 10th and 11th April 2025
13. The substantive proceedings had been adjourned to yesterday for a two-day final hearing. In the event, final orders have not been able to be made and if not agreed later the matter will return to court either in October or beforehand. The type of contact between Miss Grady and her mother has not been finalised although it had been agreed that Miss Grady could have four hours per week unsupervised with her mother, an increase from two hours currently.
Transparency Order - to be varied or not?
14. Professor Celia Kitzinger filed a COP9 application on 7th April 2025 and a position statement dated 8th April 2025 in support. The substantive argument today was to determine that application which invited the court to vary the Transparency Order made on 19th February 2025 arising out of the contempt proceedings.
15. The Professor's application was that paragraph 4 (iii) of the Transparency Order which I have set out above in paragraph 11, should be deleted. Her second application was that the committal judgment should be published. Her third application was associated with her first, she argued that a separate Transparency Order made after the substantive proceedings should be varied to permit identification of Miss Grady as being the "daughter" referred to in the fact-finding judgment.
16. Professor Kitzinger's application has the support of Mr Lewis on behalf of Norfolk County Council. The application is opposed by Miss Grady who was the defendant in the committal and by Mr Woolley who acts for the Official Solicitor, CA's litigation friend.
17. Professor Kitzinger, as I hardly need say, leads the Open Justice Court of Protection Project which has observed Court of Protection hearings since the Project was founded in 2020. It has an important role in supporting public understanding of the Court of Protection which was, and arguably still is, a little-known court.
18. Professor Kitzinger said she was not applying to publish the name of Miss Grady's mother, the protected party, nor indeed the name of the carer who gave evidence against Miss Grady.
19. The Professor and Mr Lewis argued that there was a "great deal of legitimate public interest" in the case and set out why. Professor Kitzinger said that blog posts about the case had been read by "several thousand people" and it had also prompted public debate.
20. The significant point she made was that up to the committal hearing, reporting had identified that the case involved a vulnerable mother and her daughter and the Professor said that this had "made an important contribution to transparency, and to developing public understanding about law and practice in the Court of Protection".
21. Furthermore, the Professor argued that there was clearly a "legitimate public interest in knowing what happens to people who breach court undertakings and injunctions". That is unarguable.
22. Professor Kitzinger pointed out that the published judgment of the fact-find and the other decisions made pointed to the "daughter" facing contempt proceedings. The published judgment indicated that this would be listed in January 2025.
23. She argued that the public who had been following the case had a legitimate public interest in knowing what had happened to the daughter. They should know whether she was found in contempt and if she was, the sentence imposed.
24. Professor Kitzinger contended that the public interest required that the decision in relation to the committal proceedings should be linked to the fact-finding judgment of 10th October 2024 which was in the public domain to enable "continuity of reporting between the 2024 blogs (and judgment) and the 2025 committal hearing".
25. Paragraph 4(iii) of the Transparency Order severed the link between the 2024 fact finding which flagged the contempt proceedings and those proceedings. The danger of linking the two was that it would be likely to identify the victim as being the mother of Miss Caroline Grady, the defendant in the committal proceedings.
26. In her argument, Professor Kitzinger set out the disadvantages of the present position. The Open Justice Court of Protection Project had reported on the committal proceedings but the paragraph of the Transparency Order prevented the link being made to the fact find in October 2024 and that judgment. That would have revealed that the defendant was the daughter and that P was her mother.
27. Professor Kitzinger set out a number of ways in which the information about the relationship was already in the public domain. Research would provide the link if my name was entered into a search engine or indeed the date of the committal hearing. It was easy to link the earlier judgment with the committal hearing which had been reported by bloggers and others.
28. She contended that the particular paragraph complained about in the Transparency Order was very broad in its scope and restricted the ability of the Open Justice Court of Protection Project to report on the committal proceedings in "a meaningful way that 'joins the dots' between the fact-finding judgment and the committal". Thus far they had had to publish reports which contained significant omissions. This was clearly not a satisfactory position to be in.
29. Furthermore, Professor Kitzinger said she had sent a submission to the Ministry of Justice 'Contempt of Court' Consultation and had cited the sentence in the committal that I had imposed. Apparently, it was the only case she was aware of where a fine had been imposed. She said that because of the wording of the Transparency Order she was not allowed to link this to the fact-finding judgment which was clearly relevant. The effect of paragraph 4(iii) of the Transparency Order was to interfere significantly with the Article 10 rights of reporters or bloggers and the public's right to understand this particular Court of Protection case. Article 10 of the European Convention on Human Rights (ECHR) sets out the right to freedom of expression, which includes freedom to hold opinions and to impart information without interference.
30. Miss Caroline Grady made submissions as did her father. Both were against the deletion of the paragraph in the Transparency Order and said CA's Article 8 ECHR rights to respect for private life trumped any Article 10 rights to report. It must be said that Miss Grady was focussed on the effect on her of the publication of her name in particular because she did not accept all of the findings I had made against her in October 2024.
31. Latterly, in the argument, she was concerned about whether she would be able to put her side of the story in public and there was some debate about whether she could do so if her relationship with CA was not permitted to be described in the public domain.
32. Miss Grady and her father were concerned about what publication of the relationship would mean for CA's privacy. Both are very protective of CA with Miss Grady visiting her mother up to three times a day to make sure she is well, eating, and taking her pills.
33. Mr Woolley on behalf of CA, by her litigation friend the Official Solicitor, relied on the "magnitude of the risk" of CA being identified as P within the Court of Protection proceedings if the paragraph 4(iii) was deleted from the Transparency Order.
34. Mr Woolley acknowledged the importance of the Article 10 rights but asked the court to look at two sorts of risks in the case, the magnitude of the risk of her being identified as P within the Court of Protection proceedings and the magnitude of the consequences if that happened.
35. He said Miss Grady had been named and if the relationship between her and P was reported on then P would be readily identified by name. It would be very clear who she was. In terms of a jigsaw identification, it would be a very easy one to complete, a Peppa Pig puzzle rather than a 500 piece one. The risk of identification was very high. Any research would lead to a photograph of the mother with Miss Grady in April 2023 when police were called to the hospital to remove the latter from their premises. The link would be clear and would lead not just to her name but her photograph.
36. Mr Woolley argued that there was a potential for serious consequences for CA if the order prohibiting publication of Miss Grady's relationship with her was deleted from the order. He said the impact on her would be impossible to measure.
37. Mr Woolley reminded me to consider the question from CA's perspective. Mr Woolley described CA as a very private person: this was the human aspect of the case. She is 80 and has always led a private life. She has a strong and private link to the Church. She lives in a small community. It was not her choice that these proceedings were started. It was not her decision to be abused by her daughter.
38. There was a risk of gossip in the local community when they learn about her private life through the fact-finding judgment. This may be raised with her by people and put her in an embarrassing and emotionally damaging situation. Their knowledge may well damage her self-esteem. This should weigh very heavily in the balance.
Law and discussion
39. Various authorities are relied on by the parties: the importance of the balancing of the Article 8 and 10 rights is set out in Re S (A Child) (Identification: Restrictions on Publication) 2005 1AC 593. Esper v NHS ICB (Appeal: Anonymity in Committal Proceedings) [2023] EWCOP 29 was another authority where a specific relationship between the defendant in that case, Philip Esper, and P was protected by a Transparency Order. In Esper however, there had been no earlier published decision where the specific relationship between the defendant and P had formed a crucial part of the background to the fact-finding.
40. An authority, similar to the current case, where the relationship between the defendant and the protected party was already in the public domain was Sunderland City Council v Lioubov Macpherson [2023] EWCOP 3. There Mr Justice Poole in the committal judgment referred to the protected party 'FP' as the defendant's daughter. He cited the earlier judgment. He accepted that because there was a published judgment which gave details about FP, "allowing the defendant's identity to be reported will create a substantial risk of identifying FP as the subject of that judgment". He found at paragraph 39(iv) that "even if FP is identified by reason of her mother's name being reported, it is not likely that FP will suffer direct harm as a result".
41. Professor Kitzinger and Mr Lewis accepted that CA had an interest in having her Article 8 rights protected by the court, in the sense of not having her private life and history being exposed to the public gaze. They argued, however, that her privacy had already been interfered with by the proceedings and so far as CA is concerned the worst invasion of her privacy was the need for carers to protect her from her daughter.
42. The fact that in the committal judgment, CA is referred to as a "relative" of Miss Grady meant that would make it even more likely that she would be identified by anyone who chose to do some research. Google searches using the name "Caroline Grady" (even without the additional term "mother") already could link Miss Grady with her mother as there was an article and a photograph in a newspaper pre-dating these proceedings. As Professor Kitzinger said, the horse has already bolted.
43. Professor Kitzinger and indeed Mr Lewis and Mr Woolley agree that I must approach the balancing exercise with a careful consideration of the risks involved, both to CA, if I were to remove the offending sub-paragraph, and to the public's right to freedom of information. I remind myself that neither article has precedence over the other and that I should consider the arguments for and against each interference and consider the proportionality of any conclusion I come to.
44. I thought it would be fair to CA to consider the risks to her first, were I to delete from the Transparency Order the prohibition in paragraph 4 (iii).
45. I agree with Mr Woolley that there is a high risk on publication. CA's recent history and present condition including her capacity would become public knowledge. If this information went into the local newspapers then CA would find that embarrassing particularly as the abusive treatment by her daughter involves a loss of dignity. CA is a proud and private woman and would like to be protected from that sort of public knowledge. Friends would identify her even if she was not named. I accept too that such publication if it reached her neighbours and the local newspaper would dent her self-respect.
46. Although I find that there would be some protection as CA would not be named, nevertheless any attempt at jigsaw identification could rapidly identify her as the victim of the abuse found in the fact-finding were anyone interested in conducting that research.
47. I bear in mind that CA has a fairly narrow, but clearly significant to her, social circle which revolves around her church and her local community. I give that as much weight as I would to someone more in the public eye. She deserves as much respect to the privacy of her friendship group as any other person.
48. If the local newspaper, the Eastern Daily Press published an account of Miss Grady and her abuse of her mother, I have to accept that CA is likely to read it or at least to get to know of it. I bear in mind, however, that any reports in the local paper would be a very short piece of news and would be unlikely to dominate the headlines or continue for more than a day. Any embarrassment thankfully would be short lived.
49. I accept that publication may lead to local gossip which might not be at all nice for CA. Her church friends and neighbours will then know what the court has found to have happened to her.
50. At the same time, the worst that could be said is that she would be known to be a victim of her daughter's abusive behaviour. CA has nothing to be ashamed about, no one reading the findings I made could hold what happened against CA although I accept that such a light being thrown on CA's home life and her daughter's behaviour would be a significant interference with her right to privacy.
51. As against those considerations, it is in the interests of the public to have a complete understanding of the proceedings. I accept Professor Kitzinger and Mr Lewis' argument that currently there is only a partial understanding of the proceedings in the public domain.
52. What I had not been aware of before, was of the difficulties that the particular terms of the Transparency Order caused to bloggers and other reporters following the case. I accept their argument that the removal of paragraph 4 (iii) will increase public confidence in the Court of Protection with a better understanding of the sort of behaviour that can lead to a fact-finding and then contempt proceedings.
53. What distinguishes this case from Esper (see above) which is relied on by Mr Woolley for the Official Solicitor is the prior publication of the fact-finding judgment in October 2024 (and the blog posts). This is a situation more akin to that of Macpherson above. Information about CA as a protected party in these proceedings is in the public domain (not her identity), furthermore both the judgment and the blog posts flag future contempt proceedings and gives the date of them.
54. I am told that there are no or very few committal proceedings decisions published where the sentence was a non-custodial one. The Ministry of Justice has received submissions from Professor Kitzinger and her team on the point. They were not able to tie in the sentence with the context set out in the fact-finding. By removing paragraph 4(iii) it would enable that to be done. That is another reason why I find an obvious public interest in publishing this decision.
55. Having weighed up the competing interests, I conclude that the risk of CA being identified by neighbours and her congregation is high but the risk of any consequential harm is very low. If I order the deletion of paragraph 4(iii) and the victim of the abuse is identified as being the mother of the defendant, CA may suffer temporary embarrassment and her loss of privacy may be upsetting for her, but I do not consider this would be anything more than short term. If CA were to become the subject of a little gossip, that would not last long. CA will remain more concerned about her loss of privacy occasioned by having 24-hour carers and supervised contact with her daughter.
56. It would be disproportionate not to allow publication of the relationship with the link to the fact-finding judgment. There is a significant weight in open justice and Professor Kitzinger has raised important Article 10 considerations with force. It would be disproportionate in not being able to report fully on this link given the published fact-finding judgment and the public's need to understand the context of the contempt proceedings. They have a right to understand the proceedings as a whole. The current Transparency Order prevents that. The right to freedom of expression protected by Article l0 on this occasion outweighs what I find is a low and transient risk of an Article 8 harm to CA.
57. Paragraph 4(iii) will be removed from the Transparency Order. The committal judgment will be published once the initials of CA are corrected. It is important that a contempt which was dealt with by a fine should be in the public domain. The earlier Transparency Order relating to the fact-finding will also be altered to identify the defendant as the daughter in the case. This judgment shall also be published.