Gardner (Deceased), Re (Duration of Transparency Order) [2025] EWCOP 34 (T3)

Application to extend a Transparency Order where P has died.

The substantive proceedings are reported in [2025] EWCOP 20 (T3) and [2025] EWCOP 25 (T3) involving a disputed advance decision. A Transparency Order was agreed at the time but the deceased's family had a change of heart and now sought an order lasting, at best, ten years largely on the grounds that the family's privacy would be at risk especially as there had been public interest in the case. 

Poole J conduits a thorough review of the relevant case law before balancing the representations of the various parties, including reporters wishing to cover the case. He states at [42]:
 
"In the great majority of cases a TO made in Court of Protection proceedings ought to be discharged upon P's death or within a short period after their death. The appellate courts might say that that should be the rule in all such cases. The purpose of the TO to protect the anonymity of P during the proceedings, or during their life, will have been served"

He then goes on to find he "is unable to identify any countervailing interference with the Article 8 rights of members of the family sufficient to justify the continuation of the restrictions on the Article 10 right to freedom of expression that are imposed by the TO or any varied TO", partly because the pain of the litigation will persist regardless of any order and partly because there was "no form of order that would effectively maintain the anonymity of members of the deceased's family without causing unjustifiable infringement of the Article 10 rights of others."

Read the judgment on Bailii