By Michelle Hughes (with postscript by Celia Kitzinger), 23rd April 2025
Update 23rd September 2025: A judgment has been published for this case, Darlington Borough Council v AW & Ors [2025] EWCOP 33 (T3)
Henke J found that P does have capacity.
Para 60 reads: “I have written this judgment to enable AW to have a brief record of court proceedings which were before the court for a year. During that time AW was deprived of her liberty first under the Inherent Jurisdiction relating to children (s.100 Children Act 1989) and later in the Court of Protection wherein it was declared in the interim that she lacked capacity in the relevant domains. However, once the expert evidence had been finalised and tested before the court, it became apparent that in her case the evidence did not support the presumption of capacity being displaced. AW is an adult now with capacity, able to make good and bad choices about her own future. I wished her well on 22 May 2025 and I do so again as I end this judgment.”
An observer at the final hearing, who had been following the case closely, noticed that P and her parents were all shedding tears of joy at the conclusion. As Ms Justice Henke dismissed the proceedings, she told P “It’s been lovely to see you but I hope I never see you again” and wished her all the best for the future.
Original Blog:
I am an independent SEND advocate supporting families with issues related to Special Educational Needs and Disabilities across education, social care, and health sectors.
My journey began when my youngest child was identified as having SEND at the age of 2 (now 21). Since 2012, I have worked in a voluntary capacity supporting parents and serving as an active steering group member of my local parent carer forum. I have contributed to several service improvement projects, notably the redesign of the autism pathway into a neurodevelopmental pathway, which inspired me to pursue an MA in Autism Studies.
Prior to attending Court of Protection (CoP) hearings, my only court experience was at the First-tier Tribunal (Special Educational Needs and Disability). My first hearing was in 2015, where I attended as a parental supporter for a case involving a refusal to assess. The COVID pandemic transformed these proceedings, with hearings shifting online, enabling me to support parents throughout England rather than only those within geographical proximity. Since then, I have supported families at countless tribunal hearings.
Why I’m Interested in the Court of Protection
My interest in the Court of Protection (CoP) stems directly from my SEND advocacy work. As I observe CoP cases, I’m interested in whether the autistic adults in these proceedings have experienced the same early support barriers I currently witness in my advocacy work.
Many families I work with face repeated rejections from Child and Adolescent Mental Health Services (CAMHS) due to diagnostic overshadowing, where professionals dismiss concerns with “it’s just part of being autistic”. Similarly, families often struggle to secure appropriate support from local authorities and the education system.
This system operates largely reactively—children and young people typically need to fail first, face exclusions, or experience significant crises before adequate support is provided. My current understanding of systemic support gaps leads me to question whether these same barriers affected individuals now subject to Court of Protection proceedings.
My thinking on this is also informed by following George Julian and her work documenting the deaths of autistic people and people with learning disabilities, many of whom would have been subject to the Court of Protection proceedings through Deprivation of Liberty Safeguards (DoLS). The Learning from Lives and Deaths Review (LeDeR) programme reviews the deaths of people with learning disabilities and autistic people in England to improve health and social care services.
My research for MA Autism, titled “Parental advocacy as a ‘dangerous game’: An exploration of mother blame through subject access requests; accounts of advocacy from the mothers of autistic children” further informs my perspective on this issue.
In my experience supporting families, I’ve consistently observed that it is much harder to address issues once they’ve developed than to provide appropriate support from the beginning. Delaying intervention merely transfers responsibility and financial burden to another department or agency.
The CoP hearing I watched
The hearing (COP 14276063)was listed for 16th April 2025 at 10.30am, before Ms Justice Henke, and I asked to observe via Microsoft Teams. I submitted my observation request at 9:57 and received the link at 10:19. I never received the Transparency Order – but Celia Kitzinger (who also observed the hearing) did – and she said I was copied in, but when I checked, my email address had been wrongly typed, which is why I didn’t get it. Celia passed it on to me in the course of writing this blog post.
There was no previous published judgment, or blog post, to help me to understand in advance what this hearing was about. There wasn’t an opening summary, which also made it hard to follow, and the hearing itself only lasted for about 30minutes. So I gained the experience of logging in and watching lawyers and the judge in court – but not really any sense of what the hearing was about, except that the judge seemed very cross with someone for not producing a report on time. I liked this judge and her manner – I thought she was committed to getting things back on track for the young woman at the centre of the case (P).
The most important thing I got out of observing this hearing was a better understanding of the role of the Official Solicitor as litigation friend.
This was the fourth Court of Protection hearing I’ve observed. There’s a WhatsApp support group for observers and I’ve raised numerous questions (perhaps too many—apologies!) in the WhatsApp Group about things I’ve experienced so far. One such query was (reflecting on Luba MacPherson’s anger at being represented by the Official Solicitor), “I was wondering why having an official solicitor was bad compared to having the capacity to appoint someone?“. This led to a discussion on the WhatsApp Group about how if you instruct your own solicitor, then they argue for the position you want them to take in court, but if it’s decided that you lack capacity to instruct your lawyers, then you are usually represented by the Official Solicitor, who doesn’t necessarily argue the position that you want but takes a position that she thinks is in your “best interests”. This means that she can actually argue the opposite of what you want (e.g. for a feeding tube when you don’t want a feeding tube).
The critical distinction became clear: When appointing your own solicitor, you must be able to read, understand, and process legal information in order to provide proper instructions. In contrast, the Official Solicitor (who is appointed when you can’t do those things) acts according to what they determine to be in your best interests, rather than following your direct instructions.
This left me thinking that the Official Solicitor would not be on P’s side, so I was confused when I heard the barrister for P, Eleanor Keehan, who seemed very caring and focused on P. I thought she must be P’s own lawyer, and it wasn’t until after the hearing that it was explained to me that actually she was acting for P through the Official Solicitor.
The barrister acting for P on instruction from the Official Solicitor did not say very much in court, but what she did say was based on P’s best interests and took into account P’s wishes and feelings. Her two main points were:
- She wanted practical supports to help P understand the proceedings, and a Communication Passport (which she said had not been updated since Children’s Services). The judge strongly supported this and asked for a summary of P’s communication needs to be in the notes on the end of her bed: “It doesn’t have to be War and Peace. It can be simple bullet points to make sure everyone communicates with P in a style she can understand”.
- The Official Solicitor expressed concern about a medical treatment (a naso-gastric feeding tube) that might be given to P “in the face of P’s objections and without application to this court”. The judge said there would be a recital (a note) on the face of the order about the need to bring the case to court if treatment were being considered that P didn’t want to have.
So, I saw the Official Solicitor support P’s communication and P’s choices.
There was discussion in court about P’s physical health conditions. She was in hospital and (as the judge said) “clearly unwell”, and this was preventing her from being able to read and process the necessary legal documents. That’s why she was deemed to lack litigation capacity.
A difficulty in the hearing was that an independent psychiatric expert, Dr Christopher Ince, had written a report saying that P does have capacity to conduct legal proceedings. This contradicts what the lawyer for P (on behalf of her litigation friend the Official Solicitor), Eleanor Keehan, was saying – that P would “struggle” to read the reports and instruct her directly. This seems to have arisen because Dr Ince has not provided an updated report since P has been in hospital. It seems that usually P would have capacity to instruct a lawyer, but because of her current health situation she doesn’t at the moment. Her mother was in court and said: “All I can think about is P’s physical health… She doesn’t have capacity to understand and retain as she normally would – she can’t concentrate, she can barely string a sentence together”. The judge, who seemed to know P quite well, said “she’s deteriorated, that’s obvious”. But without an updated report from the expert witness, it’s awkward for the judge to make a declaration that P lacks capacity to litigate.
The key message of this blog is simple. Don’t let knowledge gaps deter you from observing CoP hearings. Attending real proceedings brings theory to life and makes complex concepts clearer through practical context. The insights you’ll gain from direct observation are invaluable, even if you’re unfamiliar with the proceedings at first. After all, open justice should promote observation from all walks of life and not be dependent on specific background knowledge. My message to everyone is: Just do it!
Postscript from Celia Kitzinger: A penal notice against Dr Ince
We’re happy to provide support for people who are unsure or anxious about attending proceedings – just get in touch. As Michelle says, watching a court hearing can be confusing at first, and there’s likely to be a lot you don’t understand. But everyone has to start somewhere, and it’s a real learning opportunity!
I watched this hearing alongside Michelle: we were in WhatsApp contact throughout and had a video-call discussion about it afterwards. I’ve watched more than 600 hearings and I still almost always learn something new at a hearing. This is the first hearing I’ve watched where a judge has imposed a penal notice on an expert witness. Dr Ince was asked to submit a report, asked for extra time and (I understand) submitted the report in advance of the hearing. He had also been asked to provide an addendum report. It’s several months overdue and the judge sounded concerned and frustrated about this. “Dr Ince has been extraordinarily tardy in the provision of this report, missing numerous deadlines”, she said, “and so we’ve been playing catch-up”. The judge set a new deadline for Dr Ince’s addendum report and announced that her order to deliver it by that deadline “will be backed by a penal notice” (i.e. a note saying that that if it’s not delivered on time he can receive a prison sentence).
There was also some discussion about the date of the next hearing and the need for Dr Ince to attend it. Counsel confirmed that Dr Ince had already been asked about his availability and was able to attend on the date when the next hearing was to be scheduled. Nonetheless, the judge said that, if necessary, she would issue a “witness summons” (i.e. an order to attend which means Dr Ince could be arrested and taken by the police to court if he does not attend). “I’m not joking”, said the judge. “What has happened with Dr Ince in this case is truly unconscionable. The idea that I am going to set the timeline of this case by reference to Dr Ince’s availability is to fail to understand the gravity of the situation he is in. He will be directed to attend, and that too will be backed by a penal notice”.
The next hearing is listed for 22nd and 23rd May 2025.
Michelle Hughes is an independent SEND Advocate interested in the link between access to services and outcomes.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
Promoting Open Justice in the Court of Protection 