Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640
This Court of Appeal decision is essential reading for Court of Protection (“COP”) practitioners. It addresses a practical but sensitive question: when an observer attends a public COP hearing, can they receive a copy of the parties’ position statements?
The answer is: not automatically.
The underlying dispute in these proceedings concerned an advance decision to refuse treatment. Position statements filed during the case contained highly sensitive material about P’s family and quotations from source evidence.
Professor Celia Kitzinger, observing as part of the Open Justice Court of Protection Project, sought disclosure of the parties’ position statements from several hearings. Those who appear in these types of cases will know Professor Kitzinger and the valuable role she plays in monitoring and promoting open justice. The Court of Appeal acknowledged her legitimate role as a court observer and transparency advocate. Of course, there was no criticism of her request. The question was whether it should be granted.
Most COP practitioners will immediately recognise the practical difficulty here: modern position statements often contain extensive quotations from medical records or other private records. Health and welfare cases, by definition, touch on highly sensitive and personal matters. Court of Protection cases often concern deeply personal issues, such as, where a protected party should live, the type of care package they need, their physical and mental health, their sex lives or the contact they can have with their partner or relatives. Often, vulnerable individuals find themselves at the centre of long-running cases, not because they have chosen to come to court, but because the Mental Capacity Act 2005 requires this or because professionals are concerned about their decision-making capacity or best interests.
In the High Court Gardner, Poole J ordered disclosure. The Court of Appeal allowed the mother’s appeal and set that order aside.
The central point is deceptively simple: a public COP hearing does not turn the proceedings into ordinary public litigation. COP proceedings remain private by default under COPR r.4.1, even where hearings are held in public under r.4.3. The judge below had erred by treating the case as public simpliciter and by importing principles from public-by-default jurisdictions.
The Court also confirmed that, once lodged, position statements are court records for COPR r.5.9(2). However, they are not automatically disclosable. A non-party requires court authorisation in order to access position statements, and the court must consider whether disclosure should be refused, edited, redacted or restricted subject to the individual circumstances of the case.
Overall, this is not a judgment hostile to transparency. The Court accepted that position statements can help observers understand what is happening. But transparency must be considerate, not indiscriminate. The applicant must show a proper reason connected to open justice. Curiosity, research, education or personal interest will not necessarily suffice.
Article 8 ECHR, the right to respect for your private and family life, did much of the heavy lifting in argument before the Court. The Court held that disclosure of position statements containing highly personal source material was a serious interference with private and family life. The Transparency Order was not enough: it protected only limited identifying information and was due to expire.
The Court also disapproved of the Judge’s proposed general guidance. Practitioners and judges should not follow it pending consideration by the Court of Protection Rules Committee.
In conclusion, Gardner is not anti-open justice. It offers welcome clarity and guidance to a process which has caused confusion, and variations in practice, in the past.
Practical takeaways
- A public hearing does not mean a public court file
Observers may attend a hearing, but that does not give them automatic access to position statements.
- Treat r.5.9 as a gateway
Disclosure to non-parties always requires court authorisation. Parties should not simply hand over position statements unless the court has permitted it.
- Draft position statements with disclosure risk in mind
Practitioners should avoid unnecessary quotation from sensitive source evidence. Imagine how you would feel if you and your family were caught up in this sort of case.
- Raise disclosure issues early
If an observer asks for documents, parties should deal with it in advance (or at the outset) of the hearing and not retrospectively (which may divert judges from other pressing duties).
- Article 8 ECHR needs express analysis
Address redaction, editing, restrictions on use, the duration of any Transparency Order, and the impact on P and family members of disclosure, and P’s particular wishes and feelings, and beliefs and values (if known).
- Offer less intrusive alternatives
The Court suggested that case summaries, chronologies and lists of issues may often meet transparency needs without exposing sensitive material.
The bottom line
Gardner is a timely reminder that, in the Court of Protection, transparency is there to shine a light on judicial reasoning and not to floodlight the lives of vulnerable people.
Emma Sutton KC was instructed (on the appeal) by Advocate for Professor Kitzinger