Lieven J grapples with cuckooing and the effect of a DOL order

By Daniel Clark, 27th August 2025

This case concerns a young man with a hypoxic brain injury arising from a cardiac arrest. He is a drug user and a victim of cuckooing, (which is when a person’s dwelling is taken over without their consent for the purposes of committing or commissioning a crime). The applicant local authority seeks orders that it is in P’s best interests to move from his current property to a supported living setting.

I first observed this case (COP 20015137) before HHJ Chatterjee on Tuesday 29^th July 2025. It was listed as an “urgent application” but it transpired that it wasn’t as urgent as the listing implied. While there was a tight timeframe, due to ongoing possession proceedings, the case had actually been in court since April 2025.

At that July hearing, HHJ Chatterjee set down the case for another hearing on Friday 15^th August 2025 before Mrs Justice Lieven, and it’s the August hearing before Lieven J that this is the focus of this blog.

In the first section of this blog post, I set out the background of the case, including a brief overview of the July hearing. In the second section, which focuses on the August hearing before Lieven J, I will address the judge’s consideration of (a) whether a deprivation of liberty order is appropriate and (b) whether there should be an exclusion order to prevent the recurrence of cuckooing. I conclude, in section 3, with some thoughts on Lieven J’s approach to the case.

I am grateful to the parties for providing me with their position statements for both the July and August hearings – and although I didn’t have time to read them before the judge joined the August hearing,  Adam Fullwood (counsel for the local authority) gave a very detailed and helpful opening summary.

1. Background to the case and the July hearing

The protected party in this case is a man in his twenties who has been known to the local authority since childhood. He is a substance user addicted to a highly flammable substance which resulted in a cardiac arrest and subsequent hypoxic brain injury (a brain injury resulting from interruption of the brain’s oxygen supply).

He currently lives in a rental property, where he is a victim of cuckooing: threats are made against him, people steal from him, and he frequently flees to a family member’s property. The property at which he currently resides is now the subject of possession proceedings on the grounds of anti-social behaviour and breach of tenancy. The applicant local authority is increasingly concerned about his welfare and is searching for a new placement for him.

There are only two parties to this case: the applicant local authority and P, the respondent, who is represented by an Accredited Legal Representative. His aunt and mother are not parties to the proceedings and were not present at the July hearing, but did participate in August.  (It transpired at the August hearing that they hadn’t know about the July hearing and P’s aunt was understandably, and clearly, frustrated about this – but Lieven J considered it to be an act of omission rather than deliberate exclusion, and put it down to the fact that the parties had been working at pace during a period when it seemed P may soon be homeless.)

At a hearing on 29^th July 2025, before HHJ Chatterjee who was sitting at Derby Family Court, the local authority indicated that they had identified a suitable placement. However, contract negotiations were ongoing because of the very real risk of fire arising from P’s substance use. By the August hearing, those negotiations had collapsed. However, another suitable place had been found.

Back in July, HHJ Chatterjee seemed stuck in terms of what she could actually achieve. The court could not make any declarations or decisions because it did not know what the available options were.

Furthermore, P’s litigation friend, represented on this occasion by Alex Cisneros of 39 Essex Chambers, expressed reservations about a transition plan, with the potential use of force, when there may well be other options available. He described this as “the most restrictive option. It’s a very significant step for [a man in his twenties] to be put in a [care setting] in this way. I think it’s right that the court invites creative thinking”.

At the July hearing, HHJ Chatterjee set down another hearing for Friday 15^th August 2025. As I understood it, neither she nor any other circuit judge in the Midlands region was available. However, she did not think that the case should be heard by a Tier 1 (district) judge, and therefore listed it before Mrs Justice Lieven (the lead judge for the Midlands region, and Tier 3).

While I was somewhat surprised that a High Court judge would be used to essentially fill a gap in judicial availability, I took it at face value that Lieven J would hear the case on that basis. It turned out that there was more to it than that.

2. The August hearing before Mrs Justice Lieven

Contrary to what was implied at the July hearing, the case was not transferred to Mrs Justice Lieven merely because HHJ Chatterjee was unavailable. As Lieven J put it, HHJ Chatterjee, “felt it [the case] had become stuck, so I’m not going to give directions and let everyone off the hook. Let’s figure out where we’re going”.

As with HHJ Chatterjee, Lieven J’s first concern was the possession proceedings. It turned out that they had been adjourned until later this year, and this seemed to be welcome news to the judge and the parties because it permitted greater flexibility.  

In this section, I’ll first (2.1) explain the judge’s consideration of whether a deprivation of liberty order is appropriate in this case. Then (2.2) I’ll explain the discussions concerning what can be done about the ongoing cuckooing.

2.1 Is a deprivation of liberty appropriate?

With possession proceedings on the backburner, the judge had more time to focus on a concern that she had: “I’m very dubious about any judge moving [P] into a placement he is adamantly opposed to going to because it very rarely works in any context. From my reading of the papers, [P] is not someone who is likely to go, ‘oh, this was a good idea after all’”.

Counsel for the local authority told the court that they were considering P’s clear objections. One of the things they wanted to consider was whether a move could be presented “in a less restrictive way. It may be that [P] says he is willing to think about this if the restrictions are much reduced. He doesn’t want to be forced”.

It became clear that the judge also had reservations about forcing P to do anything. She took considerable time understanding the local area at which Home 2 was located, including looking at the brochure to ensure it didn’t look “institutional”. She asked whether it’s “a condition of the accommodation that there is a DoLS”.  While the social worker sent an email to find out, the judge focussed on the issue some more.

Judge: I am very, very unwilling to make a DOL [deprivation of liberty] order in this case. This is a man who has consistently had access to the community. He has not committed criminality in the community. He’s not actually put himself that much at risk in the community. The risk seems to be in [the current property]… I am very, very unconvinced as a point of principle that depriving someone of their liberty in order to force them to undergo therapy is a good way forward”.

Counsel for LA (LA): I hope the court will understand why the LA is concerned for [P]

Judge: There’s no question about that –

LA: …Those risks are significant

Judge: I’m not diminishing the risk, Mr Fullwood, both to [P] and, let’s be frank, to others as well. But I’m trying to get away from a knee-jerk reaction that someone who poses a risk therefore gets locked up. I don’t think that is a sensitive issue.

LA: We take that, but we are faced with a situation where nothing seems to be working. We had frank discussions at the Round Table Meeting – there must be some utility in what we are asking the court to authorise. We accept there would be no justification for a DOL authorisation to lock someone up, to lock [P] up, if he will not engage with the therapy.

Judge: It goes further than that. We don’t lock people up in the United Kingdom if there is some utility to it… I am not going to authorise locking him up to force him to have therapy.

At this point, the judge moved on to another topic but, for completeness, I’ll stick with the issue of the DoL order to which she subsequently returned.

At this hearing, P’s aunt and mother were present, and the judge spent a lot of time hearing the aunt’s views (it was mentioned at the start of the hearing that her views were also that of P’s mother).  Despite not having party status, P’s aunt (and mother) had been provided with the court papers (on the understanding they were returned) and Lieven J heard from the aunt at great length.

The aunt told the court that the family’s position was that “this decision should be down to [P]”. After being asked whether they could persuade P to accept the move, the aunt told the court that she thinks they could. In addition, she was willing and able to take him to see the new accommodation (which, at the end of the hearing, the judge said she’d like to happen).

Turning to P’s counsel (Arianna Kelly on this occasion), the judge wanted to get to the bottom of what P was actually objecting to. Is it because he’d see it as undermining his autonomy? Is it because he doesn’t like being around other people? Or is it another reason entirely?

Counsel told the court that the objection arose from the fact that P, “wants a flat of his own and he doesn’t see that as a type of care setting – just ordinary accommodation where there is nobody else living with him”.

To the judge, this explanation meant “it seems to me there may be a presentation issue”. As the proposed flat is self-contained, with carers in the block but not the flat itself, it would be – for all intents and purposes – closer to the type of “ordinary accommodation” that P wants.

As the hearing was coming to a close, Counsel for the local authority confirmed that they had received an email from the provider that said they “would not be in a position to accept him without a DOLS due to the significant risk he poses to himself and others…Could I suggest we go back to them? I think the way in which the court is wanting us to take this is not necessarily going out into the community – it’s what’s happening inside the property”.

That’s exactly what the judge was concerned about.

Judge: And what immediately springs to my mind is that what may be needed is a contract of expectations by which, for example, he agrees the staff can come in and check the property. Now, to be frank with you, any landlord in their right mind would have a condition like that.

LA: And it could be that part of the occupancy agreement … another phrase that seems to be gaining traction is that rather than calling it a contract of expectations, it’s a working together agreement

Judge: … Something that makes the landlord or the provider feel that they’re keeping other residents safe. Let’s be frank, you’ll be worried about the other residents.

LA: And can I be so frank as this hearing has been? The key issue is the staff have power to remove [the substance].

Judge: That’s going to be a problem, isn’t it? I know in the papers there’s something about it not being addictive, but it clearly is addictive where [P] is concerned…If they think he’s not going to use it, they’re deluding themselves.

LA: [I think at this point Counsel said, “they may think a DoLS would prevent that”.]

Judge: That’s not a DOL!  That’s a landlord and tenant – it’s an intrusion into – it’s a breach of the covenant of quiet enjoyment.

LA: They may not think that… with the court’s authorisation they may feel assured that if the court authorises this arrangement without a DOLS stopping him going into the community, that’s authorised by the court and isn’t on them.

Judge: It may be helpful to have a recital that I would expect [P] to enter into an agreement that would allow [Provider] to enter the flat in order to check for health and safety. I appreciate that would be a departure from the normal covenant of quiet enjoyment.

2.2 What can be done about the cuckooing?

Earlier, I said I’d return to another topic that the judge was also concerned with. Toward the end of the discussion about the meaning of a DOL, the judge had said, “to be frank I am a bit stunned that, given the principal risk is [Person X] and another [person] coming into [P’s property], the really obvious thing to do is get an exclusion order. Why somebody didn’t get that months ago –“ At this point she tailed off, later describing an exclusion order as costing “next to nothing and would solve the problem’.

Counsel for the local authority explained that he thought the police were taking this forward, and that it can be raised with the housing association. However, given the serious risk that these people pose to P, the judge said, “we may have to consider immediately getting an exclusion order. I can’t see a possible reason not to do that. The evidence is that they are exploiting [P]”.

When talking through the possibilities and practicalities of P moving, the judge asked the aunt whether it could be said that, “one of the advantages of moving him to [An Area] is that it gets him away from these undesirable people”.

The aunt agreed: “if I had space in my house, he would be living here, because of these people. He is a severely vulnerable adult”. She seemed to think there was some sort of “restraining order” that prevented contact between P and these people but she wasn’t sure.

Despite Lieven J’s ruminations on immediately obtaining an exclusion order, she didn’t actually mention this again. I wondered whether it featured in the approved order but, despite the fact that I am entitled to see it and therefore asked for it, I never received it. However, I do know that, by the time of the next hearing, Lieven J had directed evidence from the police as to what they are doing.

3. A common sense approach from Mrs Justice Lieven

At the start of this hearing, Mrs Justice Lieven’s attention was directed to my presence in the hearing. She was very welcoming: “Can I just say that I think it’s extremely good when members of the public attend…it’s important the wider world know what’s going on in cases like these”.

I knew that Mrs Justice Lieven is very welcoming of open justice because she’s a member of Transparency and Open Justice Board. I’ve also observed other hearings where she has said similar things.

However, other members of the public wouldn’t necessarily know any of this. It’s an important element of open justice that members of the public are made to feel that  their presence is welcome and valued. In just a couple of sentences, the judge achieved that.

I was particularly struck by Mrs Justice Lieven’s exploration of what a deprivation of liberty would actually achieve in this case. She had established both that P enjoyed going out into the community, and also didn’t pose a risk to himself or others while in the community. Why, then, should there be a deprivation of liberty order?

This is particularly pertinent given the belief that P would seriously object to any setting that is overly restrictive. The judge took steps to keep P at the centre of the decision-making without being waylaid by legal processes that seem detached from the lives of the people they are meant to assist.

This also seems to me to be a common-sense approach. I dare say that Mrs Justice Lieven would also describe it as such – throughout the hearing, she used phrases like “let’s be frank” and “to be frank”. From the perspective of an observer, this direct way of speaking was like a breath of fresh air. Rather than relying on euphemism, or leaving interpretation ambiguous, the judge was direct and to the point.

I was also impressed by the way in which the judge ensured that P’s aunt was involved in the hearing. As I have already signalled, she spent quite a bit of time asking for her opinion on various matters.

The aunt was not a party but her knowledge, and by extension the knowledge of P’s mother, was clearly valued. Indeed, the judge noted it would be more beneficial for the aunt and the mother to talk to P about the move. At one point she said, “my reading of the notes is that [P] is more likely to be favourably disposed to his aunt and his mum than professionals…it’s only natural after all. And so, if we’re going to sell this to him, they’re the ones to sell it to him.”

A little later, she reiterated the point: “I can’t emphasise too strongly that it is natural for someone in [P’s] position to trust his family members more than professionals. To be open to them, to not have suspicions…it’s not an unnatural response”.

Ultimately it is HHJ Chatterjee, not Mrs Justice Lieven, who will be making the decisions in this case. At this hearing, Lieven J’s role was to provide directions so that HHJ Chatterjee can make a decision at the next hearing in September. 

It seemed to me that this is likely to be the case, and I hope to find out for myself when the case returns to Derby Family Court in mid-September.

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.