Stephen Cragg QC is Special Advocate in Court of Appeal case on discharge of a party in Court of Protection proceedings

The Court of Appeal has handed down judgment (16 April 2021) in the case of  AA v London Borough of Southwark and others [2021] EWCA Civ 512, in which the Court found that the Court of Protection had wrongly discharged a party (the mother of a vulnerable young person (P)) from Court of Protection proceedings without giving her a right to be heard or make representations.

Stephen acted for the Appellant as Special Advocate for the appellant as there was material before the court which could not be disclosed to her due to ongoing police investigations, and closed proceedings were necessary. Lord Justice Baker commented that ‘It appears that this is the first case in which a special advocate has been instructed in the Civil Division of the Court of Appeal’.

In a comprehensive judgment encompassing Article 6 ECHR (right to fair hearing)  and the common law the Court concluded that the CoP judge ‘plainly went too far by discharging the appellant as a party without giving her the opportunity to make representations and by failing to consider alternative procedures which might have protected P’s best interests whilst limiting the infringement of the appellant’s rights’.

The Appellant has been restored as a party to proceedings and the case remitted to the Court of Protection.  Timothy Nesbitt QC and Alex Cisneros, instructed by Bindmans acted for the Appellant in the open part of the appeal case.