“Perhaps the most contentious matter is the question of his social media and internet access.”  But who is the decision-maker?

By Daniel Clark, Eleanor Tallon, and Heather Walton, 24th July 2025

“The case concerns a young autistic man residing in a supported living setting, and proceedings have been ongoing. The real issues between the parties, as I understood them, are in relation to his care and support and whether the current package is appropriate. Perhaps the most contentious matter is the question of his social media and internet access. An outstanding matter is the Deprivation of Liberty and whether this should be authorised going forward.”

That’s how District Judge Clarke summarised this case (COP 13261362) at a hearing on Monday 14^th July 2025. At this stage, the proceedings had been ongoing for over 15 months, and look set to continue until at least October 2025.

DJ Clarke has overseen this case for the majority of the time it has been in court. She sits at First Avenue House, in London.

Daniel has followed this case for nine months. He has observed the case:

• In person on 3^rd October 2024 (“the October hearing”)
• Remotely on 17^th December 2024 (“the December hearing)
• Remotely on 6^th February 2025 (“the February hearing”)
• Remotely on 31^st March 2025 (“the March hearing”) – also observed by Heather.
• In person on 14^th July 2025 (“the July hearing”, and focus of this blog)

Three of us observed the July hearing together (Eleanor and Heather remotely) and we kept in touch via WhatsApp during the hearing. We all contributed to this blog, bringing unique perspectives as observers.

Daniel is a PhD student whose research concerns older people; it addresses the exercise of state power within care arrangements – an abiding issue in this case.

Eleanor is an Independent Social Worker, Best Interests Assessor (BIA) and Expert Witness. She is also a Doctoral Training Pathway (DTP) student, and her research explores how complex welfare decisions are made under the MCA 2005, with a specific focus on ‘who is the decision maker?’, aligning with the central, contentious issue in this case.

Heather is the mother of a “P” in the CoP and has made a successful application to vary the Transparency Order that applied in her daughter’s case. She has a special interest in peer-supporting other parents with children who lack capacity as well as observing and noting the treatment and the experience that parents and family members have within the court process.

We made contemporaneous notes during the hearing and checked the material quoted in this blog post with each other to try to ensure that extracts purporting to represent what was said in court are as accurate as possible.  None of us uses shorthand so these extracts are unlikely to be verbatim. 

We are grateful to counsel for providing Position Statements. Daniel received the position statements from all five of the parties, though he had made a formal (COP 9) application for disclosure. Due to time constraints, the judge did not have time to hear the application in full – but she did express her “expectation” that he’d be sent the position statements.

Eleanor requested position statements informally (within her email, asking to observe the hearing). On 15^th July, the day after the hearing, she chased the request with all the parties, but has so far been provided with only two (neither the Trust nor the LA has sent theirs). Nonetheless, receiving even some of the Position Statements was new for Eleanor, who says: “This was the first time I’ve received position statements as a public observer (after observing about eight hearings). It made understanding the case and blogging about it accurately much easier. When I followed up my request for the position statements, I quoted the judgment in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3), which was published the same day (15^th July 2005). It seems this judgment has made a positive impact on transparency and open justice already”.

There are five parties: two applicants (the ICB and local authority) and three respondents.

At the July hearing, the NHS South West London ICB was represented by Sophy Miles (it’s previously been Ulele Burnham). With this exception, there’s been continuity in the counsel representing the parties across the different hearings.

The London Borough of Wandsworth is represented by Peggy Etiebet.

The protected party, XY, is represented by his litigation friend, the Official Solicitor who instructs Eleanor Leydon.

XY’s mum, who is one of his Personal Welfare Deputies, is represented by her pro-bono counsel, Oliver Lewis. At the February and March hearing, she represented herself because her Counsel was unavailable.

The South West London & St George’s NHS Trust, added as a respondent at the December hearing, is represented by Chiara Cordone.

This blog combines the commentaries of the three authors and is divided into four sections, as follows.

(1) Eleanor discusses the issue of XY’s access to the internet, and in particular a dispute about whether it is his Personal Welfare Deputies or the court that can make these decisions.

(2) Daniel discusses reductions in the supervision of XY from 2.1 to 1.1

(3) Daniel reflects on how two exchanges between the judge and Counsel for XY’s mum typified asymmetric power dynamics.

(4) Heather explains why the exchange detailed in 3 (above) left her wishing that professionals would think harder about the effect they may have on the families involved in Court of Protection cases.

There have been two blogs published about this case already: A young man failed by NHS South West London ICB and the London Borough of Wandsworth by Daniel Clark with reflections from Sophie Monaghan and Claire Martin (which also contains a background to the application) and DJ Clarke calls time on public body delay: Internet restrictions, consultation with deputies, and a rejection of judicial “micromanaging” by Daniel Clark.

Where it is relevant to the issues in this blog, we have quoted directly from these two previous blogs.

1. Who is the Decision Maker?  – By Eleanor Tallon

This case interested me due to my experience as a social worker and BIA working in the Local Authority, as an independent mental capacity assessor, expert witness, and case manager in private brain injury rehabilitation. In all these contexts, capacity and care planning regarding social media and internet use have been live, challenging issues.

The subject matter also resonates with the focus of my MA/PhD research at the University of Birmingham, which explores the application of the MCA (2005) within private rehabilitation case management, and the question of ‘who is the decision maker?’ in complex welfare matters.

In XY’s case, the prospective change in care provider and the involvement of the Autism Intensive Support Team (IST) are promising developments. However, these proceedings have been characterised by stagnation – particularly around decision-making and care planning on social media and internet use.

It seems that the agencies have not worked together effectively to implement a protective framework in XY’s best interests. Commissioning disputes and questions around decision-making authority are an apparent stumbling block.

I will focus on: (1) The ‘progress’ so far; (2) The hearing on 14 July 2025: Best interests v commissioning decisions (3) Social media and internet decisions

1.1 The ‘progress’ so far

The position statement of XY’s mum highlights that there have been ongoing concerns about XY’s ability to make decisions about his online activities and the associated risks. Decision-specific capacity assessments were completed in October 2019, June 2020, and February 2022. They all concluded that XY lacks capacity to use the internet/ social media.

Further to this, XY was deemed to lack capacity on various health and welfare decisions. In March 2022, DJ Beckley (as he then was) appointed XY’s mum, and three other family members, as personal welfare deputies (PWDs).

Following best interests meetings held between clinical professionals, the care provider, and PWDs, restrictions were placed on XY’s digital devices.

However, in May 2024, XY’s community mental health coordinator removed the restrictions to XY’s online access without consulting his PWDs. This issue was brought to the attention of the Court of Protection by XY’s mum (PWD), who maintained that removing the restrictions was not in XY’s best interests.

Following a direction made at the October hearing, the Local Authority (LA) was to file evidence on the restrictions deemed necessary for XY’s internet use and whether to commission Cyber Spider (online security specialists). 

Seemingly, the LA did not agree to commission Cyber Spider, and XY’s mum made an application for the court to appoint Cyber Spider as a Rule 15 Expert, whereby they would be instructed to provide a report on online risks and safety measures (the costs of an Expert Report are generally split between the parties).

At the December 2024 hearing, as documented in a previous blog, the benefits of having Cyber Spider involved were discussed:

Counsel for XY’s mum told the court that, “their reports have been very useful in providing the parties and the court [in other cases] on how certain websites can be blocked before certain times. XY is very technologically capable and Cyber Spider have the expertise to put in place software that blocks his ability to…without the provider turning off the Wi-Fi. It has to be done in a XY-specific and autism informed way. There has to be some nuance”.

The judge declined the application to appoint Cyber Spider as Rule 15 Expert.

During the March hearing, XY’s mum again raised the question of Cyber Spider being commissioned. The judge made it clear that she could not force the LA to commission Cyber Spider, and there were objections by the ICB, the Trust, and the LA around funding an Expert Report.

Yet, as reported in the last blog, there was the option of the court directing a report to be provided from a statutory body under section 49:

[The Judge] pointed out that neither she nor any of the parties could properly explain what possible restrictions are available. It therefore seemed logical to direct “a section 49 report from a cyber expert – not necessarily Cyber Spider”.

On 31 March 2025, the court made a section 49 order directing Professor Andy Phippen (who has expertise in online safety) to write a report by 30 May 2025. However, the report prompted some disagreements, particularly from XY’s mum, due to Professor Phippen’s perceived reluctance to recommend technical forms of online monitoring. It was noted that there was no consultation with XY or the family, and little recognition of the impact of XY’s autism.

As a result, questions were put to Professor Phippen, who responded by 7th July 2025. The upshot was that the Professor recommended a specialist assessment by a provider such as Cyber-Spider to inform the development of a tailored intervention plan, and that this may include technical strategies such as device monitoring and security checks (detailed in the ICB’s position statement).

The parties were back to square one.

All the while, XY is presumed to be at risk, , with ongoing concerns related to XY’s use of the internet (as expressed in June 2025 by the lead psychologist in the Autism IST, and documented in the Position Statement of XY’s mum). 

1.2  The hearing on 14 July 2025: Best interests v commissioning decisions

Counsel for the LA told the court that, on receipt of Professor Phippen’s report, they were considering commissioning an assessment from Cyber Spider (or another provider) and that a decision would be made by the end of the week. It was clarified that the commissioning decision referred to funding an assessment rather than an ongoing service. There was further emphasis on making clear what the assessment would entail and the need for an accelerated time scale.

Judge: As part of the decision-making process, are you consulting with anybody other than the ICB? The deputies or any other person?

Counsel for LA: As far as the best interest decision, yes. As far as the commissioning decision, no.

This exchange exemplifies the distinction between making a best interest decision (under section 4 MCA) and the decision taken by the budget holder. Such decisions may be viewed in isolation, but in practice, they can be difficult to separate. At a later point in the hearing (discussed by Daniel in section 3 below), the judge referred to this as a workability issue.

A best interests decision can only be made based on tangible options. There must be a realistic prospect of funding for the service/ intervention, or treatment being decided in the person’s best interests. Likewise, there must be sufficient funding granted to meet identified needs and outcomes. This warrants close liaison between all parties and clear justification for both welfare and commissioning decisions.

1.3 Social media and internet decisions

In XY’s case, the decision advanced by his PWDs was that restrictions on XY’s internet use (in addition to a supportive and educational plan) are in his best interests, and that Cyber Spider was the best option in terms of assessing and recommending appropriate interventions.

The PWDs also assert that they have the authority to make decisions about XY’s internet use in his best interests.

Conflicts have arisen because, up to the current hearing, funding has not been agreed for Cyber Spider to provide an assessment. Even if funding is agreed, there are technical legal questions about whether a PWD has, or can be given, the authority to be the decision-maker for social media and internet use.

The local authority’s position is that the court should make the best interests decision on social media and internet use.

Even before grappling with that thorn (to which I will return in section 1.4), it seemed the parties were unclear about who should make a best interests decision or recommendation in the first instance, as evidenced by this exchange.

Counsel for XY: Professor Phippen could recommend, but he would not make a best interest decision. It’s not entirely clear that even if Cyber Spider were commissioned, it would be for them to make the best interests decision. I understand from Dr Lewis [Counsel for XY’s mum] that Cyber Spider will ask the parties to decide on outcomes. If there is a dispute, it’s not entirely clear what would happen.

Judge: So, what are you saying I should do next?

Counsel for XY: We need clear evidence on the approach and if the provider [Cyber Spider] is willing to make the best interests decision. If not, who should make the best interests decision?

Judge: Essentially what you want me to do is expand the evidence to include whether the provider commissioned is going to make a best interests decision recommendation. Does anyone disagree that this should form part of the directions?

Counsel for LA: The LA understanding is slightly different. Cyber Spider must attend the individual to undertake their assessment. In relation to the best interest decision, we understand they make recommendations as appropriate, which would involve different options of support and intervention, and then a further decision needs to be made.

On reflection, I would agree that a best interests decision could not be made by Cyber Spider, though they would be well-placed to make recommendations.

In my experience as a Best Interests Assessor and in other roles, I have reviewed care plans that include restrictions on internet and social media (where the person cannot decide on them) and where there were no welfare deputies in place.  Decisions had been made collaboratively between professionals, providers, family, and representatives following the section 4 (best interests) checklist and involving the relevant person.

In those circumstances, I advised that the commissioning authority seek legal advice, and/ or refer to the Court of Protection to request specific authorisation on the internet restrictions, given that there is an interference with Article 8 rights (to private and family life) , which does not fall within the scope of a DoLS authorisation as per Schedule A1, MCA, or judicial authorisations for deprivation of liberty under Article 5).

1.4 The authority of a personal welfare deputy (PWD)

Whether a PWD has the authority to decide on internet and social media use is of great significance, not just in this case but on a much broader scale. The argument put forward by Counsel for XY’s mum is summarised here:

1. If the PWD does have authority under the current deputyship order, they will make the decision.

• If the PWD does not have authority, they will make an application to vary the order to include decisions on the use of internet and social media, and they will make the decision.

• If the Court follows the submission of the LA that the Court should make the decision, it will need to be clarified as to whether the Court has the power to make the decision where there is a deputy who has authority and is willing to make it. And if yes, in what circumstances should it do so?

• The PWDs invite the Court to transfer the matter to a senior judge, given that there is no applicable case law and the outcome will be relevant to all PWDs appointed.

In my view, an authoritative determination is needed because the practical scope of a welfare deputyship can be ambiguous, and issues relating to internet use and cyber safety are prevalent.

The leading case on capacity to use internet and social media is Re: A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2, which states that a decision to use internet and social media is not the same as a decision to decide on the person’s contact with others. As per section 20 of the MCA, only the court can make decisions regarding restricting access to the person. This is also set out at 7b of the OPG Deputy Standards.

PWD orders typically include authority to make decisions on general care and could also include decisions on participating in social and leisure activities (which is a different category to deciding on day-to-day care). My understanding is that the PWD order in place for XY includes decisions on leisure activities. Would this include online leisure?

Having reviewed the ICB position statement, they do not express a concluded view on this matter, but reference is made to Re A, specifically para 26, which states that “wider internet use is different from general issues surrounding care”. In any event, the ICB contends that even if a decision on social media and internet use can be made by the PWDs, it remains subject to a commissioning decision by the relevant public body.

Around halfway through the hearing, the judge addressed Counsel for XY’s mum (Dr Oliver Lewis) and queried the request to transfer. Dr Lewis raised that case law has indicated that where a new, distinct point is to be decided on the function of a deputy, it has either been the senior or Tier 3 judge who determines those matters. Dr Lewis then made clear his position that the distinct point of law should be reviewed by Senior Judge Hilder.

From my perspective as an observer, it seemed that the judge wasn’t entirely welcoming of the suggestion to refer the matter to a senior judge. In fact, she appeared critical of Dr. Lewis from the outset (as discussed by Daniel in section 3 below). This was surprising given his commitment to support XY’s mum pro bono, and from what I saw, he was acting with utmost professionalism.

I will certainly be intrigued to follow this case, not least to see whether there is light at the end of the tunnel for XY and his family. But also, whether the case is transferred to a senior judge, and whether a legal determination is made. This could cast a far-reaching light on the decision-making powers of a PWD.

2. Reductions of supervision – By Daniel Clark

Aside from the ongoing uncertainties around internet and social media decision-making, I’m glad to report that there have been developments in finding alternative care providers since the last hearing, which is typified in this exchange:

Counsel for ICB (ICB): There has been significant progress. A Best Interests Meeting was held on 28th May… We have narrowed it down to two. Following collaborative discussions including the views of the Trust and the Autism IST [Intensive Support Team], who have been a positive addition.

Judge (J): Sorry I’m going to cut across you…I understand there was due to be discussion last week with providers.

ICB: A meeting took place last week with [Care Provider A]. They expressed confidence in meeting XY’s care needs. They were provided with the updated PBS plan that Dr W worked on. It was agreed that the next step would be to invite XY’s family and members of his MDT to meet with them, and they were fully supportive of that approach…We do not have a date for that to take place but it will be actively pursued.

J: And the other provider?

ICB: That meeting will take place on Wednesday of this week. It is timetabled so to be in a position for a commissioning decision by the 8th August, [including having] assessments and input of family and the MDT.

J: In terms of the progression from 2:1 to 1:1, is it now fully 1:1 with a second person on stand by?

A pivotal issue in this case has been level of supervision involved in XY’s care. Following an unsuccessful attempt at reducing the level of supervision, at the February hearing the judge had authorised up to 2.1 support as a necessary and proportionate deprivation of XY’s liberty. She was clear that this did not mean he had to receive 2.1 supervision.

At the March hearing, the court heard that XY continued to be distressed by this level of restriction. However, the judge considered this to be “micromanaging too far at this stage”, and told the parties to come up with a plan for transitioning down the level of restriction.

At the July hearing, it was clear that the parties had been listening. XY now receives 1.1 support during the day (with a second person nearby, on standby, if needed) and 2.1 support at night (one person awake and one person asleep, if needed).

The judge had also been to visit XY at his home, and noted the importance to him of reducing this further still. She asked about why there was 2.1 at night “when it’s 1:1 in the day…And can I be clear that the reason I’m asking is that it is a matter of real importance to him that reduces”.

Counsel for the ICB told the court that, by the end of the week, the ICB will have a plan for the reduction in this support. Counsel also assured the judge that the plan will be shared with the other parties and family members before it is implemented.

In previous blogs, I have been very critical of the conduct of the local authority and ICB. It was pleasing to see that there was some progress in this distinct area.

3. A stark exposition of power dynamics – By Daniel Clark – with comment from Eleanor Tallon

This hearing started with “an observation” from the judge: “Mr Lewis, your position statement surprised me because the title does not contain any anonymisation, not least it contains the full name of the individual at the centre of this litigation despite the fact it was your client, the mother of XY, who sought full anonymity and requested that the initials not be used, and so these proceedings have proceeded since that time with him being referred to as XY.”

For clarity, it did not appear to me that the judge was criticising the lack of anonymisation because the position statement may be sent to observers. Rather, she was critical of the fact that the position statement filed for the court’s attention was not anonymised.

There is not usually any expectation that position statements filed with the court are anonymised.  In practice, they’ve rarely been anonymised – even when subsequently sent to observers. In fact, I’ve observed six hearings (in two cases) before DJ Clarke and, having reviewed my notes from those hearings, this is the first time that she has raised the issue of anonymisation. 

Poole J is clear in his recent judgment (Re AB (Disclosure of Position Statements)) that he would “usually allow a variation of the Transparency Order so that a non-anonymised position statement may be provided to an observer who is at an attended hearing and who has the Transparency Order, rather than insisting on full anonymisation as a condition of provision” (§37.2).

Many judges have been concerned about the dehumanising nature of anonymised court documents. Mr Justice Mostyn has described anonymising orders as, “a terrible practice. I have struggled to imagine the impact on a person, particularly someone who is close to the line between capacity and incapacity, of reading a formal order which rules his life profoundly, in which his identity is stripped away and he is simply reduced to initials. It would surely be utterly demoralising, and perceived as patronising and insulting. I cannot identify any justification for this practice and I reiterate my comments in GU that it should not continue” (§39, my emphasis).

In Re GU, Mostyn J had addressed more than just court orders: “All of the Court documents in this case, including Orders, have the names of the parties anonymised by the use of initials. In the memorable words of Lord Rodger of Earlsferry in re Guardian News and Media Ltd [2010] 2 AC 697 at para 1 the case has become an “alphabet soup”. There is absolutely no reason for this, although for some mysterious reason, which I cannot work out, it has become standard practice” (§22, my emphasis).

When Counsel for XY’s mum asked if he could address the judge on that matter, she said she didn’t “want to spend time” on it. Counsel attempted to pursue the issue, seeking to explain that “the position statement is not published…the initials [would need to be] anonymised in public”. Indeed, the reason for the request to change initials was premised on a risk of online identification.

The order that set down the February hearing stated that, “the court also notes that [XY’s mum] has requested, on behalf of the First Respondent, that the terms of the transparency order be varied so as to further anonymise the First Respondent [XY] by use of different initials to prevent his identification online”. This was re-stated by the judge at the hearing: “because of concerns raised by [XY] to [his mum] about his personal details being on the internet…I made directions in relation to revoking the previous Transparency Order and revising it to anonymise [XY]”.

I think the point that Counsel was pursuing was that court documents be placed online, and therefore anonymity within them is unnecessary.

Unfortunately, as observers, we don’t have an agreed note of what the judge said at this stage. We do however agree that she did not want the issue to be pursued further.

This exchange had the rather chilling effect that, for the rest of the hearing, the protected party was referred to as “XY”. This is extremely unusual – although it’s happened at least once before to our knowledge (see  “Anonymising P and his family in the courtroom: An unnecessary and unhelpful precaution”). To my memory, XY’s first name had been used in previous hearings. In my view, this further dehumanises a person who is already at risk of being lost in court proceedings – especially where discrete legal and procedural issues are being discussed. 

This also set the tone for a later exchange between the judge and Counsel for XY’s mum.

The nature of the dispute between the parties, as detailed by Eleanor above, is far from an academic one. It will also affect more than XY’s deputies. It’s an important point of law, and I can see the attraction of transferring the case to a more senior judge for a declaration on that point alone.

It was therefore quite shocking to me when the judge took a somewhat different approach to the issue. When asking Counsel for XY’s mum to expand on the point about transferring the case, she also commented that she’d like to “make a few observations”.

The second of the two “observations” was the matter for workability: if the deputies make a best interests decision that is within the scope of their powers to make, but the local authority makes a commissioning decision that they will not fund that best interests decision, where does that leave matters? Eleanor has discussed this above.

The first observation was a tangential discussion of the circumstances in which it is possible for the court to revoke a deputyship. Here’s what happened (from the contemporaneous notes of myself and Eleanor) – you’ll see that the judge moves fluidly between the workability issue, and the issue of the court’s powers to revoke a deputyship:

Judge (J): “I’ll come back to this but I’m going to make a couple of observations…you need to think carefully about the issue to be decided, by who, and what you want decided. I would observe that the authority of a Personal Welfare Deputy is granted by the court and can be removed from the court. One of the grounds in section 15 of the MCA…is it could be varied or discharged by further order, and in particular if the deputies are not in acting in what the court considers as the best interests of the individual who lacks capacity. Your position statement as it currently stands does not appear to have fully addressed those issues in the sense that, if the court were involved in considering best interests, and determining whether or not an attorney was acting in best interests …that is something that which may run alongside or separate from submissions you have already made. There is also clear indications in the MCA that, when appointing a deputy, the court must consider the scope, and that a decision of the court is preferable to the decision of the deputy.”

Counsel for XY’s mum (Counsel): Those points could be applicable to any decision made by a deputy…

J: I’m simply observing that the best interests decision relies on commissioning. There are other provisions in the MCA that your position statement doesn’t address, and the biggest issue might be the workability one…which ranges from commissioning to …

Counsel: The position statement and my client’s witness statement does address workability….The main thing they’re focused on is [that] XY is presumed to be at risk of harm.

J: That is a significant concern of the court, which I have expressed previously. But there are many ways in which to address that. What I’m concerned about is, if there is a commissioning decision that runs contrary to the best interests decision made by the deputies, assuming that is something that they are entitled to do, there may be a challenge in another court, and this must be factored into the issues. The court will not need a party to raise this issue to consider whether to vary or indeed discharge that order…That can be involved in these proceedings…I don’t want to dwell on this any further. I agree it is not a matter I can make determinations on today. I will look at the draft order and what you have agreed but, at the moment, I am minded to give you an opportunity to consider all of these points before making a referral to a senior judge. 

This contemplation of the grounds on which a deputyship can be revoked was unprompted. Having had the benefit of access to the position statements, I am entirely unsure where the idea even came from.

As far as I am aware, no party is suggesting that XY’s deputies are acting other than in his best interests. In fact, as the exchange went on, I discretely looked around the courtroom to see if I could identify a glimmer of recognition in anybody’s face. I saw at least one person frowning. Another was staring intently at the desk in front of them A few people were shuffling uncomfortably in their seats. XY’s mum and the other deputies were sitting behind me, and I can only imagine what their body language would have revealed.

Shortly after the exchange, the judge adjourned for “five to ten minutes” (it turned into twenty). The speed with which the courtroom emptied suggested to me that this adjournment came as a relief to everybody.

The fact that the judge chose to go down this path left a sour taste in my mouth. It seemed to be a thinly veiled threat that proceeding with the application runs the high risk of the deputyship being revoked. 

Of course, what the judge was saying is technically true. The court can, of its own motion (without being asked), make an order that it considers to be proportionate and necessary. One of those orders is the revocation of a deputyship.

This, however, misses the point.

Given the fact that this was not foreshadowed, the exchange felt more like a hostile assertion of asymmetric power dynamics. The not-so-implicit message was, “I have the power here – don’t get on my wrong side”. That it was directed (through counsel) at family members was shocking enough. From what I’ve seen, the family have only acted in XY’s best interests (including issuing these proceedings in the first place). This made it even more shocking. 

This is a direct contrast with how the judge has conducted this case so far. At previous hearings, she has struck me as an impressive judge who was clearly frustrated with the lack of progress. When XY’s mum has represented herself, the judge has taken care to ensure that various steps have been understood – including during a technical discussion about the instruction of an expert at the March hearing. 

The Open Justice Court of Protection Project frequently supports family members of a current or potential “P” to observe hearings.

I dare say that, if this had been the first time somebody in that position was observing the Court of Protection, it would have done nothing to reassure them.

Comment from Eleanor Tallon

I was particularly shocked following the exchange (about the referral to a senior judge) between Dr. Lewis and DJ Clarke in which DJ Clarke alluded to the powers of the court to revoke the deputyship. Without having seen the position statements at that point, I wondered if there were concerns about the conduct of the PWD that had not yet been openly discussed, but I’m now aware that is not the case.

I considered whether this reflected a ‘stamping of authority’, or the judge’s ongoing frustrations with a case riddled with delays, or general stress from an extremely pressured and time-intensive role. Whatever the reason, it appeared that XY’s mum and her barrister took the brunt of it, which seemed unfair. Notwithstanding this, XY’s mum presented as very calm, polite, and focused on the well-being of her son.

4. Some reflections on observing the court (Heather Walton)

I come to these observations from a personal viewpoint.  I’m the mother of a “P” in the CoP and having made a successful application to vary the Transparency Order that applied in my daughter’s case so that I can say this publicly (thank you OJCOP and Celia!), I am interested in peer-supporting other parents with children who lack capacity as well as observing and noting the treatment and the experience that parents and family members have within the court process.

My deep (and perhaps unreasonable) hope is that professionals within the CoP process begin to understand the stress and trauma that can be associated with the experience for families who find themselves in the thick of CoP proceedings. There is no doubt that some professionals see this and understand better than others – but we have a very long way to go.

Myself and a couple of other observers were watching online, whilst the case was heard in person. This caused a few issues from the outset, as whilst we could see some people in the court, we couldn’t observe everyone and it was hard to ascertain who was speaking sometimes. The audio was also dire and I missed quite a lot of what was said.

There were a few moments within this case that really stood out for me – and not for the right reasons sadly. I absolutely and utterly appreciate how hard judges work and the frustrations that they feel on late admissions and professionals within the court not being ready with answers. This session was delayed by half an hour as representatives weren’t ready – the Round Table Meeting (RTM) beforehand was still ongoing when the hearing should have started.

But the only thing that should matter – should ever matter – is the “P” at the heart of the case. And judges and legal professionals have a responsibility to the family, (especially – though that wasn’t the case here –  if they are litigants in person) to guide them through the court process. Sometimes a little bit of thought about word choices and tone are all that are required but would make a huge difference.

Daniel has explained a strange interlude relating to deputyship, when the judge pointed out that deputyship could be revoked. Even though this is obviously legally correct, it seemed an extremely strange and bluntly unkind thing to mention in the court. How on earth did those members of the family who are deputies feel when she said this? What was she implying? Quite possibly nothing, but this is where the careful thought about words and their impact on others should be at the front of a judge’s mind.

The judge had visited XY since the last hearing. She expressed that he was very keen to change his 2-1 staffing overnight to 1-1 and she wanted to make this happen for him as quickly as possible.

This frustrated me because it is an issue that has been returned to throughout this case. Why did the judge reject it as “micromanaging too far” at the March hearing but then openly endorse it at this July hearing?

Those of us with young people lacking capacity in our families will understand how a brief visit by an unknown professional can throw out all kinds of anomalies – which is why advocating professionals should establish a stable base and relationship with the person before asking any questions at all. It may be in this case that these changes to staffing are appropriate, but it is not something that a judge who has met someone once should be handing out as something to be done without discussions with carers, parents and those around the young adult.

At the end of the hearing, the mother of XY thanked her Counsel and Mckenzie friend for their support. The judge said, “That’s not appropriate, you can give thanks outside of the hearing [after a pause] though I’m grateful that you are getting the support you need, as it can be very difficult acting as Litigant in Person”.

This was another slightly jaw-dropping moment, as it was completely unnecessary and not kind. The mum in this case demonstrated a wonderful attitude which I hope served as a demonstration to everyone in the court of how we should all treat others.

I am a realist. I do not expect all the professionals in the court to always demonstrate the Thumper Principle (“if you can’t say anything nice, don’t say anything at all”) – that would be extremely difficult and I understand that.

That being said, I wish that professionals thought harder about the effect they may have on the families involved. It is the professionals’ job within the court and they are paid for it (though on this occasion Oliver Lewis was working pro bono). But for the families, it is their lives, and the unnecessary stress that can be caused by thoughtless comments should never be forgotten.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132  and Bluesky @clarkdaniel.bsky.social.

Eleanor Tallonis an Independent Social Worker, Expert Witness, and BestInterests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act (2005) in private brain injury case management. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon

Heather Walton is the mother of a “P” in Court of Protection proceedings and acted as a litigant in person. She’s previously co-authored a blog post: A mother now free to tell her Court of Protection story