Unsuccessful Application for Permission to Appeal

By Claire Martin, 19th May 2025

In May 2024, a year ago, Amanda Hill blogged about this case: “The protected party in this case (“L”) is a man in his twenties with “significant learning disability”, autism and complex physical disabilities. He had been living at home with a care package in place until July 2021, when his care package broke down and he was moved to a new placement after an application by Swansea Bay University Health Board to the Court of Protection. This was supposed to be a temporary emergency placement, but L is still there nearly three years later because, over the years, suitable alternative arrangements have not been found.”

His Honour Judge Porter-Bryant has been the presiding judge for this case (COP 13290314) for the four years it has been in court. There are two published judgments:  Swansea Bay University Health Board v P & Ors [2023] EWCOP 67 (and we blogged about that hearing:  ‘Can a judge discharge a deputy without determination of wrongdoing: statutory interpretation in action’); and an appeal upholding the judgment CL v Swansea Bay University Health Board & Ors[2024] EWCOP 22.

L is now living in a second care home (H), since his place at the first care home also broke down (May 2024). It is now almost four years since the start of the proceedings and the search for a more appropriate place for L to live is ongoing.

The current care home is some one and a half hours’ drive from L’s home town, family and friends. In a hearing on April 19^th 2024, the judge said “Community is of magnetic importance to L, he is a (home town) boy.”

Yet, according to the Health Board responsible for commissioning his care, it seems there is no suitable current alternative place for him to live that is nearer to his family and friends in the town where he grew up and is part of the community. L’s mother and father disagree and have clearly expressed their dissatisfaction with the efforts that the Health Board says they have made to find somewhere else. They assert there are alternatives nearby.

The case has been marked by conflict between the Health Board and L’s family, in particular his mother (called C in the published judgments, the initial I will use for her in this blog), who has been very unhappy with the Health Board’s discharge of their duties. There have been counter-allegations from the Health Board and care agencies, about C. Findings of fact have not been made and allegations have not been proved. The 2024 appeal judgment states (at §14) “In the Health Board’s position statement for that hearing [May 2023] they questioned whether a fact finding hearing would be necessary”, and at §16 (ii) “On that basis, it was not necessary to engage in a five-day fact-finding hearing”. The original judge acknowledged (in the 2023 judgment ) “I have never lost sight of her [L’s mother’s] love or strength of feeling and determination to do all that she can to secure what she feels is the best outcome for P.”

C, and L’s father, V, assert that the place where L lives now, that has been deemed suitable (at least in the interim) is, in fact, ‘dangerous’ and that they have needed to raise safeguarding alerts.

There has been a subsequent hearing this year, on the 31^st March 2025, at which HHJ Porter-Bryant made a further 12-month residence order for L to stay at this same care home. C has now sought permission to appeal that court order.

The hearing I observed (on the 12^th May 2025, remotely at the Royal Courts of Justice before Mrs Justice Morgan) was to determine whether C would be granted permission to appeal that most recent judgment.

How to appeal a decision

Information on the government website about applying for a one-off decision from the Court of Protection states:

“Appeal a decision

You must ask for permission to appeal if there was a hearing. Download and fill in the appellants’ notice (COP35).”

C completed and submitted the appellants’ notice (also called ‘notice of appeal’) and will have paid the £230 to do so.

The Appellants’ Notice has guidance at the end which says:

“Permission to appeal will be granted only where:
• the court considers that the appeal would have a real prospect of success; or
• there is some other compelling reason why the appeal should be heard.”

It also notes:

“What are you asking the appeal judge to do?
You need to explain in section 4.3 what order you are asking the court to make.
Please be specific about what you are asking the appeal judge to do. The appeal judge has the power to:
• affirm, set aside or vary any order made by the first instance judge;
• refer any claim or issue to that judge for determination;
• order a new hearing; or
• make a costs order.

Grounds for appeal and arguments in support
An appeal must be based on relevant grounds (i.e. reasons for appealing).

An appeal judge will only allow an appeal against a decision that is either wrong or unjust because of a serious procedural or other irregularity in the proceedings before the first instance judge.

Please set out briefly why you are appealing the judge’s decision. Remember that you must not include any grounds for appeal that rely on new evidence (that is evidence that has become available since the order was made). You may not produce new evidence in your appeal unless the court allows you to do so.

The court will tell you if permission is granted, refused or if a date has been fixed for a hearing of the application for permission.”

Mrs Justice Morgan said that a decision had been made to hold a hearing (rather than deciding the permission to appeal ‘on the papers’)  because “in this particular circumstance, I and the vice-president [of the Court of Protection, Theis J] decided that the matter should be heard by way of an oral hearing. It came to me because I am the presiding judge for the part of the country …. I decided [it should] to come to me orally not on the papers, partly because the proposed appellant, C’s, papers are not straightforward to follow. And there is a hearing listed on 20^th May which would be in jeopardy [if the permission to appeal was successful].”

C was therefore the appellant in this hearing, representing herself. The first respondent was Swansea University Health Board, represented by Emma Sutton. The second respondent was L, represented by Nia Gowman via his Litigation Friend (who I think is someone from Mental Health Matters). L’s father (V) is also a party and was present at the hearing, and I think is represented, though the judge noted that his representative was not present.

The hearing

The judge explained the five grounds on which permission to appeal was sought:

Ground 1:  L was placed at the relevant care home without relevant assessments being  completed to reside there in the longer term.

Ground 2: A closer location in a placement nearer to the family home is just a few moments from home and had not been considered. Other viable options were also contended.

Ground 3: The Health Board committed perjury, making unfounded allegations against the appellant and detracted from L being cared for at home without regard to his Article 8 rights to respect for private and family life and home.

Ground 4: The recommendations of the Independent Social Worker were not taken into account sufficiently or at all.

Ground 5: L constantly asks to return home to live with his mother and this was given insufficient weight or dismissed out of hand.

Morgan J took time at the start to deal with the administration of the hearing. I thought she made respectful efforts to ensure that C, as a litigant in person, understood the process that the judge was proposing, allowing her to contribute her thoughts about those proposals [my notes are typed contemporaneously as we are not allowed to record the hearing, so they are as accurate as possible, given that I do not touch type] :

Judge: We have until 1 o’clock – [this is] your appeal. I have read the documents from the Health Board and the second respondent and your documents and I had a message from you on Friday to say that you will find it helpful if you could have a break in the middle of your submissions. Because we have limited time available, and I have seen what is said by other parties, I propose that you have the bulk of the time before 1 o’clock to say whatever it is you want to say about permission to appeal.

It’s now 11.45. If I work on the basis that you should have until half past twelve to make your arguments and that Ms Sutton and Ms Gowman should share the remaining time from 12.30 and you may have 5 mins or so at the end to respond to what they say. Then I will come back at  2pm with my decision. [C] does that work for you?

C: Yes and I don’t mean to appear rude but I will be looking at my notes

Judge: That’s perfectly understandable – would it be best to schedule in a break or would you like to say when?

C: Thank you – I will just say and I hope I won’t need a break.

The Equal Treatment Bench Book (2024) outlines the underlying principle of ‘fair treatment’ in court:

Fair treatment is a fundamental principle embedded in the judicial oath and is, therefore, a vital judicial responsibility. For many judges this will be how they will approach much of the guidance provided in this Bench Book. For most, the principles of fair treatment and equality will be inherent in everything they do as judges, and they will understand these concepts very well. The Bench Book seeks to support and build on that understanding. It is not intended to be prescriptive, but simply to inform, assist and guide.

It includes guidance for judges to assist litigants in person with understanding the court process and how to make reasonable adjustments and its foreword explains its purpose:

The Equal Treatment Bench Book (ETBB) is a key work of reference. It is used daily by the judiciary of England and Wales. It is referred to in their training courses and commended by the appellate courts. It is admired and envied by judiciaries across the globe. Since 2018 it has been published online and, whilst its focus is primarily aimed at all judicial office holders and is written by judges for judges, it has also come to be regarded as an invaluable resource for litigants in person and to many other people connected directly or indirectly with issues relating to equal treatment.

I thought Morgan J was fair to C in this appeal hearing. I can’t speak to how she has been communicated with by the other parties prior to this hearing, or previously across the very lengthy proceedings, but at this hearing I observed I thought the judge showed respect and concern for C as a litigant in person, and helped her to understand both the process and the content of the hearing.

C’s submissions as a litigant in person

C presented her case eloquently and with clear concern for the wellbeing of her son. She maintains that there was inadequate assessment of his needs, and that the current care home he is living in is dangerous and isolating for him. She argued that other, closer, places are available, having contacted them herself. She argued that L’s Article 8 human rights to a family life are being breached and that his own wishes and feelings are not given sufficient weight. She summed up her position:

I do feel that myself and L’s father are very frustrated that the Health Board is very complacent in what they do. They say things will be done, yet nothing is being done. Whether it’s concerns about the placement or looking [for alternative places]. They will leave L continued in isolation and depressed. His quality of life is not being met where he is. I would like to add that I felt, as well, that after giving the evidence in my statement this was the only way [to make an appeal]. As his mum, I could never give up. L should be back home in [home town]. The judge said ‘No that’s it  – I am not going to look’. So, for myself, this is where I feel that unless the judge does keep watching, L will end up continuing in that place.

The judge checked that V (L’s father) was in support of C’s position, and he confirmed that he was, adding, in relation to where L lives now:

“… the rooms are small, there is no toilet or wet room [of his own]. He can have toilet issues, there’s no dining room, there’s no interaction with other residents, peers, [ … ] he has to wait for someone to come out of the toilet. […]  He eats his food in his bedroom because there’s no dining room. It’s inadequate. One more thing … the car park where L’s van is positioned is reversed out into the main road. It is dangerous, there’s a lack of staff and a fire hazard, no access for L to get out of the front door.”

Both counsel (for Swansea University Health Board and L’s Litigation Friend) submitted that permission to appeal on the five grounds should not be granted.

Submissions from the Health Board

Counsel for the Health Board gave very short shrift to C’s suggestion that they had not made efforts to find an appropriate place for L to live, stating: “… a residential decision was made by the court [on 31 March 2025] for a 12-month period. Under the Mental Capacity Act, this calls for sensible decision making. It’s not a pursuit of perfection. It was accepted by all parties that the ideal solution is that he would live closer to his parents. It had been in front of the judge for four years. No other placement is realistically possible to meet L’s complex needs.”

Submissions for L (via his litigation friend)

Counsel for L’s Litigation Friend said: “The Litigation Friend’s position is that court should refuse permission to appeal. Firstly, on the basis that it has not been demonstrated by C that the decision was in any way wrong on any of the grounds. Neither is there a compelling reason to give permission to appeal.”

And: “I echo Ms Sutton regarding the extensive efforts by the Health Board looking for other options.”

C’s response

 The judge gave C an opportunity to respond:

“[C] in the last eight minutes before I retire to consider what I have heard, is there anything you want to say that arises from what you have heard.” [Judge’s emphasis]

C reiterated her view that there was inadequate assessment of L’s needs, that ‘parent-carer blame’ was at play (and cited the work of Professor Luke Clements from Leeds University), summarised her view of the nature of the inadequate search efforts by the Health Board, and (contrary to counsel for L’s assertions) that L does not express anything positive about being at the current home.

Judgment

After retiring for lunch and to consider the submissions, the judge resumed  the hearing at 2pm.

Morgan J ensured that she could be heard (the hearing had been plagued by poor sound quality from the Royal Courts of Justice) and assured parties that “In time this will be subject to a transcript, a written version will be sent out.” Indeed, just five minutes into her judgment the sound completely cut out and there was a fourteen-minute hiatus before the judge explained “Sorry about that – there was a complete power cut in court.”.

Morgan J foregrounded her judgment with the following regarding C: Although she has represented herself and plainly found matters emotionally difficult, she has acquitted herself well and made clear what it is she wishes me to have in mind.

This felt important: C is a litigant in person, up against very experienced and formidable barristers with the benefit of legal training and years of advocacy. C is the mother of a young man whose care she is extremely concerned about, and in which she has an emotional investment. The parties are clearly not on a level playing field.

The judge outlined the process of her deliberations: considering the ‘relevant and applicable law’, that she is only entitled to “interfere with a decision if I am satisfied it was wrong” (judge’s emphasis) and she also addressed the second reason that appeals can be granted (that it will have a ‘real prospect of success’).

Morgan J then took each the five grounds for appeal in turn and addressed the merits of each of them, summing up as follows:

“In the application for permission to appeal which I should grant, I have been driven to the following conclusion. Relevant matters [were] all considered by this judge. He had been the allocated judge for some very significant time; he had the evidence before him to carry out a best interests decision for a 12-month period. It can be reviewed if an alternative place becomes available.

He plainly had in mind the overriding objective – he has made a best interests analysis decision for the next 12-month period.

It is plain from the note that he was thorough in analysing the issue on the evidence before him – there is nothing to suggest he was wrong in his application of the law. Again, C has fairly conceded in her most recent statement that she does not take issue with his application of the law. All arguments made by the applicant were made with sincerity and real concern for the welfare of her son. I regret to say they do not come anywhere near to me saying the judge was wrong,

I have to refuse permission to appeal.”

Reflections

A co-observer of the hearing, Kim Dodd, reflected that it had ‘felt like David and Goliath’ and I agree.

The judge, throughout the hearing and when giving her judgment, appeared to feel for C. She seemed regretful that she had to dismiss the application – but legally I think she did.

That does not mean, however, that L is in a place that meets his needs, that he is happy (or even settled) there, that he has any regular connection with his home town and the things he likes to do there, or that he sees his family anywhere near as much as he (and they) would like.

I don’t know what efforts the Health Board has made to find a better, closer place for L to live. Maybe they have done everything possible, maybe they haven’t. It’s not an area that I know a lot about but a brief search on the internet about availability of adequate supported living for young adults with learning disabilities in England and Wales suggests that there are just not enough places offering adequate quality support (this from 2018, this from 2019 and this in 2023).

A hearing like this is upsetting to observe, and (despite C presenting her case clearly) is often distressing for the litigant in person. Although the judge showed compassion for C, I thought that this was not mirrored in the style of presentation from either counsel. Understandably, they advocated for their clients’ positions (that everything is being done and that they have taken time to understand L’s wishes and feelings). It was the harsh tone from counsel and short shrift they gave to C’s position that left me feeling uncomfortable and wondering whether that was a necessary feature of their submissions. I know that’s what a court of law can be like, and especially between counsel. C is not a lawyer though.

One issue of interest that I know very little about cropped up: why C did not go for Judicial Review (instead of an application to appeal). C suggested she was given no help (earlier in proceedings) to understand the system and what the options were. C expressed a view that I have heard from family members many times in court (whether Litigants in Person or not) – that their options and the legal process is not made clear to them by lawyers:

Judge: Can I be sure … when you were talking about if you’d known more about the legal processes …. [there has been] no Judicial Review of the decision making?

C: Yes we weren’t told there could be a Judicial Review of the decision making, no one told me. We weren’t given information about time limits about appeals. This whole system for parents like myself is a new world. It is complicated to understand. Now the decision has been made, I would have gone to judicial review.

This was later summarily dismissed by Emma Sutton saying C had been represented back when the case first to court. Being represented doesn’t necessarily mean, of course, that C would have been told about the option of Judicial Review.

I have learned this about Judicial Review:

“Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.
This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.”

So, for C, perhaps a Judicial Review might have been more appropriate, had she known about its purpose: to review the decision-making processes of the public body rather than the decision-making processes of the judge. Indeed, Morgan J said, in her summing up:

“The issue that developed is in relation to a decision taken by a public body, but not subject to Judicial Review. […] Listening to the applicant say that she must do everything she could, there is some sense of regret that at an earlier stage a Judicial Review has not been taken. It informs me as to the way in which the decision [was taken] to pursue the appeal route, and leave no route exhausted, is one which has assumed a great prominence in those who care for LL.

[…]

Importantly, [what has been] difficult to focus attention on in this short hearing, is to review the hearing below and NOT to rehear it.”

It must be extremely hard, as a litigant in person without legal knowledge and training, to present in court submissions about what a judge has got wrong in law. We have seen many appeals from families where they tend towards arguing the same case before a different judge, in the hope that that judge will make a different decision. As Morgan J was at pains to ensure C understood in this hearing, this was not, and could not be, the purpose of an application to appeal a judicial decision.

An explainer blog for the Open Justice Court of Protection Project about Judicial Review, the relative merits of taking this approach instead of appealing a judicial decision, and how families and litigants in person can navigate the waters of these tricky decisions, would be very welcome. Would anyone with expertise in this area be willing to write one for us?

Although Swansea University Health Board and L’s Litigation Friend are advocating for the proceedings to come to an end, I have a sinking feeling, as C submitted, that “unless the judge does keep watching, L will end up continuing in that place”.

The next hearing for this case, before HHJ Porter-Bryant, is scheduled for Tuesday 20^th May 2025. I think it will be about contact arrangements between C and L.

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social

Note: Judges must give permission for parties to share their Position Statements and we routinely ask the court associates (when we email requesting the link to observe a hearing) to pass a message to judges asking them to give permission to parties to share Position Statements. I did so for this hearing. Reading Position Statements assists enormously with understanding the law and the submissions, and with improving accuracy in our blogs. Judges often address the request during the hearing, but Morgan J did not do this on this occasion. I don’t know whether she received my request. I have since requested the Position Statements directly from counsel for the public body and for the litigation friend and informed them that I requested permission from the judge, but to date I have not received a reply. Given that the next hearing for this case is very soon, we have chosen to publish the blog without the benefit of reading these Position Statements. Observers will be asking for the Position Statements for the next hearing and hope the judge and counsel will respond.