Silence from HHJ Rowland: A transparency fail

By Celia Kitzinger, 29^th June 2025

It’s been more than 10 months since I applied to discharge the transparency order in a s.21A case concerning a woman in her 90s who was deprived of her liberty in a care home.  She died in January 2023.  Her son wants to publish his account of “over five years of hell” in the Court of Protection. 

But there is a transparency order, issued by HHJ Harris sitting at Stoke on Trent County Court on 26^th April 2019, which threatens him (and me) with prison, a fine, or seizure of assets if we publish anything that would reveal him to be a family member of a (now former) protected party.  The order also prohibits us from identifying his deceased mother – and it bans us from naming the applicant local authority (see §6 from the order, below). 

The (sealed) order from which the above extract is taken is in the ‘standard’ terms, except for the ban on naming the local authority (§6(i)(c)) – which is unusual and, as I know from raising challenges to other transparency orders with the same prohibition, often unintended both by the judge who makes the order, and by ‘successor’ judges who subsequently hear the case.  It’s unlikely that the local authority made an application to any of the judges who heard this case for their identity to be protected. It’s unlikely that they would have succeeded in any such application if they had made it (see “What to do if the Transparency Order prevents you from naming a public body” and “Getting it right first time around”).  But, as in so many other cases, an ‘accidental’ injunction is still an injunction and breaching it risks contempt of court.  

And P’s son is subject to these “gagging orders” indefinitely.  The duration of the injunction is “until further Order of the court” (§8). I don’t know why someone decided that the injunction should prevail “until further Order of the court” (there are other options in the ‘standard’ template, including until P’s death). I doubt it was ever discussed in court.

So, acceding to the son’s wishes, I made an application to discharge this transparency order (and any others applying to the same case).  Since the protected party is now, sadly, deceased, I thought it would be straightforward (especially in the aftermath of the Supreme Court decision in Abbasi).  But no. 

First there was a considerable delay (more than 3 months) before HHJ Rowland, sitting at Birmingham Civil and Family Justice Centre  dealt with my application, which I submitted on 17^th August 2024.

Then, after issuing an order discharging the transparency order on 7^th January 2025 (since he’d received no objection from the local authority), HHJ Rowland stayed that order on 18^th February 2025, giving the local authority a second chance to object,  correspondence having apparently gone astray.  Their new deadline was  4^th March 2025, more than six months after submitting my application.  The local authority missed that deadline too.  Then they did submit an objection two days later, on 6^th March 2025 – following which there has been judicial silence, despite several chases both from me and from the solicitor for the local authority. 

This has left everyone involved in the case (me, the son, the local authority, and a social care team leader for the local Trust who wrote a witness statement supporting the LA’s objection) in a legal vacuum.

I have detailed the chronology below because it is unfortunately not atypical in my dealings with the Court of Protection on transparency matters.  Long delays, failures to respond, and (in this case) resultant uncertainty about what can and cannot be reported are inimical to open justice. This account exposes the persistence and hard work it takes for a member of the public to seek – so far without success – discharge of a transparency order, two years after P’s death.

Experiences like these do not enhance public confidence in the court and do not support the claimed judicial commitment to open justice. For anyone starting from the perspective that the court is corrupt and determined to hide its proceedings from public scrutiny, this whole experience looks like corroborating evidence. 

Although his mother died more than two years ago, P’s son still feels the weight of court prohibitions preventing him from speaking (in his own name) about the role of the Court of Protection in the last years of her life.  This is a self-evident interference with his freedom of speech and it’s hardly surprising that he is cynical about the court.

What has gone wrong here? 

Chronology

17^th August 2024

 I submitted a COP 9 asking for the following order: 

_{“Discharge of the Transparency Order dated 16 April 2019 made by HHJ Harris – an injunction preventing identification of:}

_{(1) BMM as a subject of the proceedings (and therefore a P as defined in the COP Rules 2017);}

_{(2) the family members of BMM, which includes the second respondent [her son];}

_{(3) the name of the applicant local authority in these proceedings (§6).}

_{There may be (I’m not sure) another TO prohibiting identification of the Trust and/or other public bodies – if so, discharge of that too.”}

I set out the grounds on which I was seeking the order as follows:

“The key ground for this application to discharge the reporting restrictions is to further the judicial aspiration for open justice and transparency in the Court of Protection.

The injunction was in place to protect the Art. 8 privacy rights of BMM, who has now sadly died […] COP PD24B states that orders should be in place for no longer than is necessary to achieve the purpose for which they were made. BMM no longer has need of the protection of anonymity.

The second respondent, [NAME OF SON], actively wishes to tell his story about his experience of the Court of Protection in relation to his mother.  His Article 10 rights to freedom of expression are engaged and there are no Article 8 privacy rights currently protected by this injunction to balance against that.  The local authority does not have any Article 8 rights to be balanced.  It is very unusual to anonymise a public body in any event, and it is not clear what the grounds for this could have been.

I understand that the second respondent wishes also to name the Trusts and hospitals involved in his mother’s care. This is not prohibited by the injunction I have seen (but there may be a second TO I have not seen).

4^th December 2024

Although I’ve been told by the Senior Judge (HHJ Hilder) that COP 9s relating to transparency matters are recognised as urgent and dealt with speedily by the court, I did not receive any response for more than three months. 

Then I received an order made by HHJ Rowland on 4^th December 2024.  It noted in a recital that “various transparency orders were made in the proceedings and that such orders last until further order” (I have not seen any other transparency orders and don’t know what they say – none have been referenced in any objections to my application, and I think the one I have in my possession may actually be the most recent, superseding prior orders – but I’m not sure, and neither is P’s son).   Another recital records that BMM has died and that Court of Protection proceedings have come to an end.  The order then says:

1. The COP9 application of Celia Kitzinger shall be sent by the Court to all parties to the proceedings.
2. In the event that any party objects to the discharge of the transparency order(s) made in these proceedings they must by no later than 4pm on 31 December 2024 send to the Court, to the other parties and to Celia Kitzinger a COP24 statement setting out the grounds for their objection
3. In the event that any party does not submit a COP23 statement objecting to the discharge of the transparency order(s) the Court may infer that they have no objection
4. The file will be referred to HHJ Rowland on 6 January 2025 to give further directions on paper.
5. This order was made without a hearing. Any party may apply to the Court to have this order set aside, varied or stayed. Any such application must be made no later than 7 days after this order is served.

31^st December 2024

There had been no application to set aside, vary or stay the order as per §5 quoted above, and so I waited to see whether I would receive any objection by 4pm on 31^st December 2024.   This was the deadline for receipt of any objections to discharging the transparency order(s).  I did not receive any objections.  So I waited for further directions to follow after HHJ Rowland’s review of the file on 6^th January 2025 (as per. §4 above).

15^th January 2025

I received the order below, made on 7^th January 2025 and issued on 15^th January 2025.   Hurrah!  It says “All transparency orders in the proceedings are discharged”.   We thought that was it! 

24^th January 2025

On 24th January 2025, the local authority made an application to dismiss the order of 7^th January 2025.  They said they had not seen my COP9 application or the judge’s order of 4^th December 2024.  They wanted time to “review and take necessary instructions”.  That application was dismissed by the judge, who noted that my application and his order had been sent by email to all parties on 5^th December 2024. He quoted the email address to which they had been sent.

12^th February 2025

The LA made another application to stay the order, stating that the person to whose email address my application and the judge’s order had been sent is no longer in their employment. 

17^th February 2025

In a new order dated 17^th February 2025, issued on 18^th February 2025, the judge noted that “the Court would expect [the local authority] to have measures in place for another member of staff to receive and act on any email”.  He also said that the local authority “has been in possession of the application and orders now for some time” and that “a further opportunity to take instructions will not be entertained”. The new order states as follows:

IT IS ORDERED THAT:

1. The order dated 15 January 2025 is stayed until 4pm on 4 March 2025
2. In the event that any party objects to the discharge of the transparency order(s) made in these proceedings they must by no later than 4pm on 4 March 2025 send to the Court, to the other parties and to Celia Kitzinger a COP24 statement setting out the grounds for their objection.
3. In the event that any party does not submit a COP24 statement objecting to the discharge of the transparency order(s) the Court may infer that they have no objection.

The effect of the 15^th January order was to discharge all the reporting restrictions.  P’s son sent me a lovely thank you letter.

The effect of the 17^th February order (so more than a month later) was to reinstate those reporting restrictions.

This means that if I’d published a blog post between 15^th January and 17^th February 2025, naming P’s son, his mother, and the local authority, I would not have been in contempt of court.   

In fact, I was taking a break from the Project during that period (backpacking in Tasmania and New Zealand with limited internet access). I didn’t return until 24^th February 2025, and it was only some days after that, as I worked my way through my emails, that I discovered what had happened.  I checked with P’s son.  He had not been informed that the reporting restrictions were back in place (which seems an odd omission, given that he had been sent the order issued on 15^th January 2025 discharging those reporting restrictions).   However,  he told me he had not in fact publicised his mother’s Court of Protection case.  If he had, I would have promptly so informed the court and pointed out that the effect of the reinstated order was to make a retrospective transparency order, which is completely unacceptable.  This whole episode, and the uncertainty (indeed anxiety and fear) it creates puts the court in a very poor light.

4^th March 2025

The next judicial deadline (4pm on 4^th March 2025) passed without my receiving any objection to discharge of the transparency order.

5^th March 2025

I wrote to the court to ask for confirmation that, as no objection had been received, the stay on the order of 15^th January 2025 (i.e the order discharging the transparency order(s)) was now lifted. Here’s what I wrote:

_{“I did not receive  a COP 24 statement from [Local Authority]  before 4 pm yesterday raising any objections to the discharge of the transparency order(s) in this case.  Please can I have formal confirmation that the judge’s stay on his order discharging the transparency orders is now ended and that the stayed order is in force.” (my email to the court dated 5th March 2025)}

I have never received a reply.

6^th March 2025

Two days after this (second) deadline mandated by the judge, I was copied into an objection to discharging the transparency order, sent by the local authority solicitor.  It was accompanied by a witness statement (unsigned on first sending, and then resent with a signature) from the local authority’s Social Care Team Leader explaining the basis for their objection.  According to the witness statement (which took a different perspective from the local authority’s application in that regard), “our objection is not to the Transparency order being lifted but to any individual’s [i.e. employee] being named by [P’s son]“. 

The transparency order I’ve seen does not in fact explicitly prohibit the naming of any individual employee in connection with this case – although it could be argued that naming employees (including members of the inhouse legal team as well as social workers etc) is implied since this could perhaps be said to be “likely to identify” (§6.1) the local authority, at least for anyone sufficiently interested to track down these people’s place (or former place) of employment.   

This is puzzling.  If the concern is the naming of employees, then a proper remedy (from the point of view of the local authority) would surely be an application for an order prohibiting public identification of whichever named employees they want to protect – not an wholesale opposition to the discharge of the existing order, which is their current position.

19^th April 2025

On 19^th April 2025, I sent a new COP 9 application (copied to the local authority solicitor) seeking a declaration that “the sealed order to HHJ Rowland dated 7^th January 2025 (issued on 15 January 2025) wherein the judge orders that “all transparency orders in the proceedings are discharged” is now back in force and that no reporting restrictions apply”.

The grounds on which I am seeking this order were set out as follows:

“HHJ Rowland’s order of 7th January 2025 discharging the transparency orders was stayed to allow objection from [the Local Authority] , which they were required to submit by 4pm on 4th March 2025. They did not do this. No COP 24 statement was received from [the Local Authority]  before 4pm on 4th March 2025. So, I took it that the transparency orders were discharged, but did not receive confirmation (requested on 5th March 2025).  An COP 24 was subsequently submitted after the judge’s deadline (on 6th March 2025) with a witness statement by [Social Care Team Leader], stating “Our objection is not to the Transparency order being lifted but to any individual’s [i.e. employee] being named by [P’s son]” (§16). This would seem to require a new application.

“It is now well over two years since the death of P, and it is not clear to me or to family members whether we can publish information about these proceedings.  If the judge has decided to continue the stay on his Order pending the making of a decision about naming the local authority’s staff members, please could I be so informed at the earliest possible opportunity.  I am concerned at the length of time it is taking to get clarity that reporting restrictions are discharged – open justice delayed is open justice denied.” (my application of 19th April 2025)

14^th May 2025

Almost a month later, neither the local authority solicitor nor I (nor P’s son) had received any information about the status of the orders.  On 14th May 2025, the local authority solicitor sent an email to the court (copying me in) asking for an update as to whether the judge has “made a determination on this matter”. I thanked him for chasing it.  As far as I know, there has been no reply.

27^th June 2025

Another month, and more, went by.  Still nothing from the court. On 27th June 2025, the local authority solicitor sent an email to the court, copying me in, saying he was leaving their employment and transferring the matter to another (named) employee who (he said) was copied into the email.  She wasn’t.  Fortunately, I have been able to locate her on LinkedIn.

A plea to the court

This blog post documents, in excruciating detail, ten months of a failed attempt to get a transparency order discharged two years after the death of the person it was designed to protect. As a member of the public, acting in good faith to support P’s son and to advance the judicial commitment to transparency, I’m depressed and frustrated by this protracted sequence of events. It shouldn’t be this difficult.  I’m still unsure whether or not the transparency orders are now discharged and I’m anxious about publishing anything  – and of course so, too, is P’s son.  This uncertainty has a chilling effect on transparency. I am hoping this public blog post will serve to spur the court into action and will be updating this post if and when matters progress.

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.