By Celia Kitzinger, 9th September 2025
Almost exactly four years ago, Ms H was appointed as a Court of Protection Deputy for the protected party in this case (COP 11126846). It’s not been an easy role.
The protected party (P) is a young man who sustained a brain injury as a child and has, in adulthood, been assessed as lacking capacity to manage his property and affairs. Following the childhood brain injury, he was awarded several hundred thousand pounds of financial compensation, which is in a court account now managed by his Deputy. (For information about the role of a Deputy, take a look at this very readable and engaging blog post: What does a Deputy for finances do? by Ruth Meyer, who is herself a professional Deputy).
Initially, P’s sister acted as his Deputy – but after five years or so, she resigned. She was replaced by another relative. That second Deputyship broke down as well. A professional (panel) Deputy was then appointed by the court, but that Deputy then requested to be discharged due to accusations from P about the management of his finances. The current replacement Deputy is another professional Deputy, Ms H, appointed by court order on 20th August 2021.
According to the judge, “it’s fair to say that Deputyship is not without its challenges”.
Ms H says (diplomatically) that “communication with [P] has … been difficult throughout my time as Deputy”, and she charts a history of problems, beginning soon after she took up the role.
In 2022, when P moved to a supported living setting where he would be responsible for paying his own utility bills, his support network – including the social worker – agreed that the Deputy should take over management of his Personal Independence Payments (PIP) to ensure his utility bills were paid. P objected and ever since then has made repeated requests for his PIP to be returned to him (or to a member of his family). He’s now living with his mother and contributing to household bills – but despite the Deputy’s repeated requests has never sent a breakdown of his household contributions. He’s also occasionally requested large amounts of money from the Deputy including for holiday flights, and a new car for his brother.
Then, in June 2023, P himself filed an application inviting the court to revoke the Deputyship as he believed he’d regained capacity and was finding the Deputy “overly controlling and restrictive”. (Although this case began with P as the applicant, he was subsequently replaced by three family members – his mother, brother and sister – who are the current applicants.)
In response to P’s application to discharge her as Deputy, Ms H filed a COP 5 objection to being removed as P’s Deputy but unfortunately the court considered the capacity evidence without having the COP 5 objection in front of them (the Deputy not having been informed of the application until the end of October 2023), and made the decision to discharge the Deputy.
In June 2024 the Discharge Order was set aside, following receipt of a letter to the court from the social worker who’d given the capacity evidence filed by P. She retracted her evidence as having been based on incomplete information. Ms H was reappointed on an interim basis.
Alongside his application to dismiss the Deputy, P had also completed some Lasting Powers of Attorney forms, purporting to appoint family members to act in the event he lost capacity in the future. Separate proceedings were brought by the Public Guardian and the court found P lacked both the capacity to manage his finances and also lacked capacity to execute the Powers of Attorney. This means a Deputy is still needed.
There was a Dispute Resolution Hearing (DRH) in July 2024, which was attended by P and some of his family members (including his mum), a legal representative for the Deputy, and by the person who was Deputy before Ms H had been appointed. The DRH did not resolve the issues.
There were some ineffective listings and delays – at least one hearing was postponed because the Special Visitor report had not been provided by the date specified in the order- and over this period Ms H continues to report that P and his family are refusing to meet with her, and that she’s not received any response to a proposed “working together” agreement.
I’ll describe what I saw in court across two hearings I observed, both in person, before DJ Lisa Clarke at First Avenue House in London: one on 8th May 2025 and the next on 8th August 2025, which concluded the proceedings.
May hearing
This hearing was supposed to consider the question of who should be P’s Deputy.
The judge, DJ Clarke, said in her opening summary that “On the occasion of the last hearing P attended with his mother, brother and sister, and we had a remote interpreter assisting the mother. There was little engagement with Ms H despite her presence at the hearing. P and all his family members chose to leave before the hearing concluded”.
This was a pertinent observation to make at the beginning of the hearing on 8th May 2025 because neither P nor any of his family members were present. They’d submitted an application for the hearing to be adjourned, saying that they were “experiencing health issues” and that “the person most able to represent [P] is feeling emotionally drained”.
The judge released the interpreter who had come to court to assist P’s mother, and then said to Ms H (attending remotely due to her own health issues that day): “I have not made a decision as to whether to adjourn this hearing […] Before I make a decision, I’d like to hear from you as to what you think has been going on, and what course you think I should take”.
Ms H said that at the last hearing she’d had no objection to a change of Deputy “but I’ve changed my mind now. He’s not going to engage with any Deputy, so I think it should be me at present”.
The judge ran through what she had done to progress this case, which included making it clear that “it is in [P’s] best interests to have as much engagement as possible [with the Deputy] to find a viable working relationship”. She had also made directions that the court bundle should be provided to the applicant family members and that Ms H should write offering dates for a meeting and that the family should respond agreeing to a date, or offering alternative dates, or explaining why they would not meet with her. Ms H had offered some meeting dates but the family had declined them, failed to offer alternative dates, and not given any reasons beyond not wanting to work with Ms H. There had also been no response to the proposed “working together” agreement.
The judge said that the application to adjourn the hearing was “poorly and improperly constituted – it is not clear who is making it, it is not signed or dated, and there are no supporting documents”. She also commented on the family’s “wholesale failure to comply with directions” and “correspondence which suggests resistance”. On the other hand, “they are applicants in person, not legally qualified or represented”, and one of the accompanying documents mentioned that a family member had been hospitalised. She was also “mindful that at the hearing on 6th February, it was abundantly clear that there was resistance from family members and from P himself to your continuing as Deputy”.
DJ Clarke reflected on the “over-riding objective” (of enabling the court to deal with cases justly and at proportionate cost, Civil Procedure Rule 1.1) and considered herself to be in a “finely balanced position”. She said: “Either I simply dismiss the application and continue your appointment either as interim Deputy or convert it back to a full Deputyship; or I make a Directions hearing, with directions expressing the need for medical evidence for non-attendance and non-compliance – and if there is no medical evidence, what the outcome will be: dismissal of the application to dismiss the Deputy. I am conscious there have been numerous previous Deputies and relationship breakdowns. It is unlikely to be in [P]’s best interests to repeat this in the future. There are limited resources of this court and a need to apportion them appropriately. On balance, and with a degree of reluctance, I’m going to adjourn. If I do not, there will be further applications to the court that will lead us back to the same place we are now. There will be one more go.” (For a different case in which the judge did not adjourn a hearing and went on to appoint a professional deputy in the absence of the parties, take a look at this blog post: “ When parties don’t appear in court and judge goes ahead anyway: Appointing a professional deputy”).
The next hearing was listed for 12 noon on 8th August 2025 (“the earliest date I have”) – with effectively the same directions as last time, but with a form of ‘unless’ order (i.e. “an order directing that a specified sanction will be imposed unless the party concerned takes a specified step before a given date. The sanction specified occurs automatically on a failure of the party to comply with the unless order; no further order is required: CPR Rule 3.8” LexisNexis definition). The judge said: “The terms of the ‘unless’ order will be that if the applicant doesn’t comply with the order to file by 27th June, the application will be dismissed and the court will make an order converting the interim Deputyship to a full Deputyship”.
I didn’t see what else the judge could realistically do under the circumstances. I know how hard judges work – this judge in particular – and how crowded their lists are. It’s dispiriting to list hearings that people don’t engage with. It wastes court time – and it wastes public money.
It also really can’t be in the interests of the protected party to have a Deputy he declines to engage with, and a judge trying to figure out what’s in his best interests in the absence of the family members, who clearly have views too.
August hearing
The start of the hearing was delayed. I found myself seated next to the family in the waiting room, so I introduced myself and gave one of them (she turned out to be P’s sister) my business card, with a link to the Open Justice Court of Protection Project website on it, so that they could find out more about the Project and what we do. I think one of them used a mobile phone to check us out.
The family did not seem perturbed by my role – although they did talk among themselves in their native language (which I don’t speak or understand), and at one point I think I was being pointed out to P himself, who seemed unworried by my presence as far as I could tell. The family seemed well-disposed towards me: when the hearing ran over the lunch hour – it didn’t end until 2.45pm – P’s sister kindly gave me a packet of crisps during a short adjournment to keep me going! (Reminder to self: always take a snack when court-watching!)
The judge opened the hearing with a comprehensive summary of proceedings so far, including information I’d not known before about P’s finances: the amount remaining from his compensation pay out, how much he receives in PIP (which the Deputy manages), and the approximate amount of Universal Credit (which P receives direct). It seems his expenditure results in a regular monthly deficit.
Family failure to follow directions to date
The judge then asked whether any of the applicant family members had filed medical evidence relating to their failure to attend the last hearing. They shook their heads. The sister said, “it was very personal – I’ll keep it to myself”. There was mention of the mother’s brother having been hospitalised – but no evidence or further details were provided.
The judge moved on to ask about whether there had been a meeting with the Deputy (no) and why not: “We said right at the beginning, we just felt really disrespected by her and her team, and that we are not going to be engaging with her in any way whatsoever. We don’t want to be engaging with someone who is so hostile to my brother”. The judge responded: “You made your position clear before, and I directed that you must respond to her. Did you?”
“No.” the sister replied. “Because as I said before in court, no way can we repair the relationship between us and her”. The Deputy confirmed that “I received nothing from them”.
The issues today
The judge then summarised the situation, and the issues before her today.
There is clearly a dispute between the family, and [P], and the Deputy about difficulties in relation to the Deputyship from 2021 onwards. In order to understand what happened, I would have to have a detailed fact-finding hearing. On its face, that would appear disproportionate and not necessary to resolve the matter, which is about the Deputyship going forward. I clearly understand the family’s position is that Ms H should not continue to be Deputy. That is also [P’s] view. They would all prefer if [P’s sister] was appointed as his Deputy going forward. If I am not minded to appoint [P’s sister], I am asked to appoint an alternative panel Deputy. Ms H’s position is that there are likely to be similar problems with any Deputy, and that continuing to change the Deputy is not in [P’s] best interests, and that she continues to wish to try to work with the family. And as I understand it, she maintains that she should remain as the Deputy, but that in the alternative a panel Deputy should be appointed in preference to a family member.
Should there be a fact-finding hearing?
The judge said she would canvass everyone’s views as to whether or not she should hold a fact-finding hearing – which would be a 3-4 day hearing. There was a short adjournment for family members to step outside the court and see if they could resolve the question between them.
Despite the judge’s best efforts to explain, it wasn’t clear that the family members all understood what would be involved in a fact-finding hearing, as became apparent when the hearing resumed. (The mother spoke in her native language: I’ve quoted the interpreter’s version of her words).
Judge: Ms H?
Ms H: I think a fact-finding hearing would be long, costly and not in [P’s] best interests. Resolving the issue of who is to be Deputy today would be in his best interests.
Brother: I would like a fact-finding hearing, but my sister doesn’t.
Judge: Why?
Brother: There are a lot of things we haven’t addressed in this court. My sister has shown professionalism in managing his money in the past.
Judge: That doesn’t tell me why you need a fact-finding hearing. A fact-finding hearing would be considering the questions that are unresolved at present about how this Deputy has managed his finances in the past.
Brother: That’s what I want.
Sister: It’s not what we want. It would take too long – it could take years. I don’t think we need one.
Judge: Mrs X? [P’s mum]
Mother: (inaudible – as is the interpreter)
Judge: I’m not sure I can explain to you more than I’ve done already what a fact-finding hearing is. If you don’t want to express a view, that’s fine. But if you do, now is your opportunity to tell me.
Mother: [speaks to interpreter]
Interpreter: She is asking me for my opinion, which I’m not allowed to do.
Judge: So you don’t have an opinion at the moment?
Mother: Of course I have an opinion.
Judge: Well what is it?
Mother: Yes.
Judge: You’d like a fact-finding hearing?
[Mother doesn’t answer. Brother and sister are talking to each other in their native language. Sister says to judge: “She doesn’t understand”.]
Judge: I can either finish the proceedings today – in which case I will hear from you about who should be the Deputy and make a decision, OR put it off, for what is likely to be a long period of time, for a lengthier hearing to examine what exactly was done in the past with the Deputyship by Ms H, which will involve a longer hearing and more cost. Then I’ll make some findings about the facts about how the Deputy has acted, or not acted, and why. And after that, we’ll have to look at the question of who should be the Deputy. And if you want to have a fact-finding hearing, you’ll have to explain to me why it’s necessary, proportionate, and in P’s best interests for that to happen. So what would you like to say to me about that?
Mother: After all the trouble the Deputy has given me, I don’t want the same person. P is distressed by the Deputy.
Judge: This isn’t addressing the question I asked you. I’m going to make it very simple. Do you want me to decide today or another day?
Mother: I want it to finish today.
Judge: So it’s only you, [Brother], who wants a fact-find, and you’re not pressing very hard.
Brother: No – no, I retract what I said.
Judge: Okay. There’s an obvious dispute about how the Deputy has acted and why, but there is no doubt that there have been disagreements over the last few years – and I don’t consider that it’s necessary to make findings of fact as to the exact reasons for those difficulties. […] So I am now going to hear briefly from each of you about who you think should be the Deputy going forward, and why. The three options are: Ms H remains; P’s sister be appointed in her stead; or an alternative professional deputy from the panel is appointed instead of either of those two. (Addressing P). When I have heard from all the parties, P, I will give you an opportunity to tell me what you want.
Who should be Deputy?
The judge asked each of the parties in turn who they thought should be Deputy.
Ms H (current Deputy)
Ms H reiterated the view she’d expressed in her Position Statement that “[P] is trying to remove me as Deputy as neither he nor his family fully understand the role and obligations of the Deputy. It appears that [P] expects any requests to be agreed, without providing the information required for me to fulfil my role of Deputy. […]. I feel that [P] needs to learn to work with his Deputy and that continually changing Deputy would not be in his best interests.”. She said she would be “happy to remain as panel Deputy” but that in the event the judge decided she should not do so, then “I don’t think there’s a clear understanding in the family of what the Deputy does, and so I do think an alternative panel Deputy, and not a family member, would be in P’s best interests”.
P’s sister
The sister said: “I’m really involved in his life, even though I don’t live with him any more. I’m in contact with him every day. In the past few years that I’ve not been living with him, I’ve developed a better relationship with him and can work for him. After my mum, I am the person who understands him the best. I know he can get paranoid and angry, but when he comes down, he always regrets it. It will save him money if I do it. I’m willing to do it again. I have a background in accounting as well – I was doing it before and I gave a report to the Public Guardian every year with no complaints.” The judge asked about the sister’s personal circumstances since she’d indicated that she was on long-term sick leave and hadn’t attended the previous hearing due to health concerns. The sister said she was on the waiting list for surgery but didn’t think it would impact on her ability to fulfil her duties as a Deputy and that she would “fulfil my job according to the requirements”. The interaction continued:
Judge: You’ve just told me that you understand you have to follow rules and guidance. Tell me how I can have confidence in that when you’ve failed to comply with directions from this court.
Sister: When there is a deadline, when someone is dependent on me, I would always respect their autonomy and dignity.
Judge: It doesn’t give me confidence that you’ll follow the rules when you don’t follow what I have told you to do in a carefully worded direction.
Sister: It was a family decision. Not just me.
Judge: It was on you as an individual, with the greatest respect.
Sister: As a Deputy it’s all on me. I’m the one responsible.
Judge: And what is your view about a panel deputy if I am not minded to appoint you?
Sister: Ms H doesn’t know anything about his needs. He wasn’t being listened to by Ms H or her team. He was just being ignored. She’s never met him once.
P’s brother
Brother: Following on from my sister, in terms of how she was previously managing the Deputyship, she had more of a relationship with P. He was able to express what his needs were. He gets very distressed at times and has outbursts but his family is able to contain that. It’s very concerning that P doesn’t have a lot of money and I don’t understand why he has a professional deputy when my sister is willing to do it. I don’t know how much the Deputy gets, how much is taken from his money to pay her. Yes, the court needs to know where his money is going, but he should have some elements of choice. Back in 2022 he told the Deputy he wanted to go on holiday and because money was not released to him, we had to pay for it. As a family, we are having to support P financially as well as emotionally. There are emails from Ms H saying she wants to meet with P, and he’s traumatised when I say, “do you want to speak to the Deputy”. I don’t know how to resolve this, mentally or emotionally. He has a learning disability – you can’t expect him to communicate by emails. He needs to be able to build up a relationship. My sister is willing to do this for free and he hasn’t got a lot of money, and it’s not in his best interests to have a professional deputy
There followed a somewhat cross-purpose conversation about sourcing an external deputy, but it was clear that the brother had nobody else to nominate for the post today.
Mother
P has been in distress for so many years. I do not want it continued. I do not want the current Deputy to continue. I’m P’s mum, and what I saw so far, my heart isn’t accepting it. I want the Deputyship to come back to my family. I want my daughter to be doing it as she was previously and for it to remain as it was before.
Protected party
P: After my mum, my sister and I are very close. I want my sister to be my Deputy. I’ve been begging money off my sister and my brother. I need all my money to return back to me, and I don’t want Ms H as my Deputy. Since my money was taken over- We went on holiday to Egypt last year and my brother paid for it. We did ask Ms H for money, but she refused to give it to us.
Judge: I hear that it’s important to have your sister as Deputy because you’re close to her. Alright, thank you.
Having heard everyone’s views, the judge called a short adjournment. She said she was very conscious that the hearing had overrun (it was by now 1.40pm) and that it had gone over the lunch hour. She wanted to review what she had heard from everyone before making a decision, and suggested returning at 2.30pm. There was a problem with the interpreter (he was only paid until 1.15pm) so the break was attenuated to 15 minutes, with the intention of being finished by 2.30pm (although it actually took until 2.42pm).
Judgment
The judge referred early in her judgment to the decision in Kambli v The Public Guardian [2021] EWCOP 53 – which I heard and wrote down as Camberley v the PG, and couldn’t find at the time, but have subsequently located: locating case law mentioned in court (when it’s not written down in position statements) is always challenging.
The Kambli case, I discovered, is often cited as an authority for the position that “when a deputyship encounters difficulties, the response of the Court should not be to change the appointment as default response. Changing deputy inevitably incurs costs which could otherwise be avoided and risks being perceived as ‘rewarding’ negative behaviour, which in turn undermines the prospects of future stability. Rather the Court should probe the actual circumstances, with a view to salvaging working relationships if possible” (§39, Kambli).
In Kambli, salvaging working relationships turned out not to be possible. The case was heard by Senior Judge Hilder. Mr Kambli, the Deputy, was finding it impossible to work with P and his family – saying that there had been an irretrievable breakdown in the relationship between his firm and P’s family. He said that P’s father in particular was “rude, obstructive and undermines my authority as Deputy” and was “intent on breaking down any relationship he has with a Deputy by ‘Deputy shopping’ until he finds a Deputy that will accede to his demands“. The judge decided to appoint some distant relatives proposed by P’s father in place of Mr Kambli, subject to heavy restrictions and supervision, in the hope of breaking the cycle of P being repeatedly subject to the cost of new deputies being brought in.
In this case, DJ Clarke cited Kambli to remind herself that changing a Deputy is not a default option. It has financial implications for P and may also have “wider repercussions”, e.g., she said it “can be perceived as rewarding a lack of engagement or poor behaviour”. But in the end, she came to the conclusion that “the current arrangements are not working. Despite Ms H’s laudable willingness to try to make this Deputyship work, I have concluded it has reached the end of the road”.
DJ Clarke then considered the only two alternative possibilities for the Deputyship before her that day: P’s sister, and a new panel deputy.
Concerning the sister, the judge said: “There are several reasons why this might be considered to be in P’s best interests. His estate, though not minimal, is not extremely substantial, and it is widely accepted that the costs to an individual’s estate of a family member being appointed over those that would be incurred by a professional Deputy would favour the appointment of the family member, if all else was equal. There are other reasons why family members are often considered preferable. Those include: the relationship between the family member and the person who requires a Deputy and the fact that family members are often already familiar with the protected person’s affairs and have personal knowledge of them, and perhaps have a better and more in-depth understanding of their wishes and feelings, and also of how to make the relationship work, and how best to communicate with that individual. There are also difficulties with appointing family members, who may find it hard to make decisions in the person’s best interests if that conflicts with the protected person’s wishes and feelings. In this particular case, [Sister] has previously acted as P’s Deputy for a period for a period of some five and a half years, and to the best of my knowledge there were no concerns raised about her management of his finances during that period. She did not continue after March 2015, citing personal circumstances, and I have only the very briefest understanding of what those circumstances are. She has shown a reluctance, which is understandable, to disclose the private details of her life, but she has indicated that she has an underlying but treatable health condition, that she expects to undergo surgery for that, perhaps next year, and she is currently on long-term sickness absence from work. I have some concerns which – despite my giving her the opportunity to address – I don’t feel have been fully allayed, as to whether her health would impact on her ability to manage the Deputyship, at least until she has recovered from her future surgery. I also have concerns as to whether she fully understands the role of a Deputy and what is required of her. These concerns are particularly pressing in view of the fact that this is not someone who has never acted as a Deputy but acted previously for five and a half years, and should therefore be very clear about the Deputy’s role. I raised with her my concern about some of the comments she made in her Witness Statement [I haven’t seen this] and both those comments and her response to them did not allay my concerns, or persuade me that she understands the role, or is capable of making decisions in P’s best interests, having regard to whether or not he has capacity to make certain decisions himself, and keep a regular and appropriate oversight of his affairs. I note from her correspondence with the Deputy that she was either unwilling or unable to provide the Deputy with details necessary for any Deputy to undertake the role, by giving an understanding of what obligations P has. I have little confidence that she will undertake a rigorous examination of any of those matters if appointed as Deputy today. That is underlined by the fact that she has on several occasions failed to comply with directions of this court. She explained she believed they were family decisions – whereas she was clearly directed as an applicant in her own right, and should have complied with them as she was clearly directed to do. In light of those factors, and other concerns that I have, I am not satisfied that she is a suitable person to be appointed to act as P’s Deputy.”
The judge addressed the sister directly: “As I have little confidence that you will prioritise the obligations of a Deputy over your own, P’s, or other family members’ wishes and feelings, I don’t consider it to be in P’s best interests to appoint you as a Deputy going forward. And I have reached the conclusion that the best solution is to appoint an alternative panel deputy who will be sourced by the court following this hearing”.
A fresh start?
The judge hoped (somewhat optimistically in my view) that the new Deputy would signal a “fresh start” for the family going forward.
“I want to say a few words to the family in particular in relation to this course of action. I understand there have been problems, and I would ask you all to keep an open mind about any new professional Deputy, and to engage with and work with them to promote P’s best interests, because what is clearly NOT in his BI is for there to be further dispute and further costs incurred in having repeatedly to consider the question of whether there should be a different Deputy. In light of history of this matter, is seems to me it would be helpful to ensure there is a structured relationships between P and the family and the future Deputy, so what I propose to do is to include, in an order, a requirement that the new Deputy produce a “Working Together” agreement, which clearly sets out the expectations on both sides – from the Deputy what can be expected by P and the family, and also what the Deputy can expect from the family and P. And that agreement should cover the means of communication and the frequency, timeframes for responses to correspondence, on both sides, who will manage what finances, the points of contact between the family, P and the Deputy, how decisions will be made, and how any disputes between P and the Deputy – or between the family and the Deputy – will be resolved. It will take some time for the Deputy to be able to put that document together. The final document should be lodged with both the court and the Public Guardian. I hope this will assist everyone to understand the role of the Deputy and to manage expectations in a way that gives the new relationship a better prospect of working than the existing one. I urge you all to consider this a fresh start.”
The judge also addressed P directly:
“I understand, P, that this is not what you wanted – that you would have preferred your sister to be your Deputy. Sometimes I have to make very difficult decisions. I’ve taken into account what you want – but for reasons I’ve explained, I don’t think your sister acting a Deputy is in your best interests. I’ve taken into account that your family is very important to you. But the person managing your money in your best interests may not always make the decisions you would like them to make. That money may sound like a substantial amount but it has to last you for the rest of your life. Your needs may be greater in future. Your money has to be carefully managed so that you have what you need and what it’s in your best interests to have. The Deputy I appoint will be greatly assisted in making decisions that are in your best interests if you communicate with that Deputy and provide them with information they request. And while I understand it’s onerous, the Deputy has duties to the Public Guardian who has oversight of their activities, and that means they have to account for every penny of your money. They will need invoices, accounts, receipts, so I would be grateful if your family will support you to provide them with information they need so they can do their job properly. I appreciate it’s intrusive but I’m afraid it’s necessary.”
P replied: “I’m very disappointed. I wanted my sister. For the last 12, 15 years we’ve been so close”. “I understand that,” said the judge. “But I’m not going to appoint your sister. I’m going to appoint a professional”.
And with that the hearing ended.
Reflections
I’ve now observed eight hearings before DJ Lisa Clarke – some on line, some in person – and in every one of them I’ve found her to be conscientious, thorough, and personable.
She’s alert to the challenges of open justice: she’s been helpful in making sure that I have the relevant background information, providing me with summaries and ensuring I have Position Statements where possible. She’s made explicit to counsel when it’s been necessary (which, unfortunately, it has) that she has no editorial control over my reporting. She’s treated everyone in court (lawyers, interpreters, family members and P) with respect and consideration.
I am always uncomfortably aware that transparency can be a time-consuming matter for the courts. Judges routinely check that I have the Transparency Order and ensure that I’m provided with an opening summary, and I always ask for position statements. (And sometimes we have concerns with the Transparency Orders and ask for variations – including once, laying arguments for transparency out in a Position Statement in a case before DJ Clarke observed by Daniel Clark.). None of this is cost-free for the court. Position statements can be a time-consuming matter since lately the Official Solicitor has taken the blanket position that they will not disclose position statements unless ordered to do so by a judge – so there is a ritual performance of my request, followed by their refusal, followed by a judicial order which (depending on the actors) can take anything up to 20 minutes of court time. This has played itself out in a couple of the recent hearings before DJ Clarke – with the added complication that (contrary to the guidance in Re AB (Disclosure of position statements), parties had not prepared anonymised versions (she described that as “disappointing” in COP 14226400) and/or were unable to detach position statements from the court bundle. The judge has sometimes anticipated problems with provision of position statements: on one occasion, after the ritual interaction with the Official Solicitor, she produced a copy she’d personally asked staff to prepare earlier for me.
I’ve never seen her show signs of impatience or take short-cuts. Hearings I’ve observed have often run over their allotted time slot (frequently through the lunch break) but she never seems to be trying to hurry people or to make rushed decisions. “You must be very hungry by now!”, said one finance professional as we trailed into the courtroom at 1.15pm (for a case listed to be heard at noon), moments after the participants from an earlier hearing had left: “that need not concern the court” the judge said – nicely, with a small laugh ((COP 1307949T). This is a judge who does work extremely hard – I’ve not seen her concentration or ability to function impaired by her dedication or lack of breaks, but I do worry for her well-being. She’s clearly concerned for the well-being of others: she closed another hearing by saying “Apologies that I’ve eaten into your lunch hour as well as mine. Thank you all for continuing to work together”; and she remembered that in the course of a discussion about dates and deadlines, one the lawyers had said he’d be on holiday, adding “I trust you’ll have a lovely break!” (COP 20006344).
In my experience, DJ Clarke is always well-prepared. At every hearing I’ve seen, it’s obvious she’s read the bundle and is on top of the paperwork (she sometimes delays the start of hearings to read Position Statements that are submitted late, e.g. COP 20006344). I’ve been impressed by her grasp of details and by her ability to ask pertinent questions that cut through some of the morass of information to issues at the heart of the case.
Whenever I’ve seen her, DJ Clarke has been calm and focussed in her manner. She is courteous but firm with everyone. She drew attention at the end of one hearing to the fact that counsel had submitted their position statement very late “which is in part why we are still in court half an hour after this hearing is supposed to have ended”. She responded to counsel’s apology by saying: “I’m grateful for the apology but I’m more concerned to make sure position statements are filed in a timely manner in future” (said very nicely with a smile) – so that I heard her not as “complaining” about counsel’s past actions (which is how counsel had treated it, by apologising) but rather as trying to ensure an effective hearing at the listed time on the next occasion the case was before her, i.e. a positive and future-focussed approach.
I’ve also heard this judge be firm and clear with family members, but never in a way I heard as inappropriate or unfair. In a case heard in the morning before the Deputy case in the afternoon, P’s daughter told the judge that other family members have stolen money from her: the judge replied, “I’m very sorry that’s something you’re experiencing, but it’s not something I can do anything about”. The daughter also said she’s being evicted and will “probably be homeless” by the date the judge suggests for the next hearing: the judge responded, “While I have every sympathy with that in relation to you, your homelessness doesn’t necessarily mean this court should adjourn” (COP 14226400).
The care DJ Clarke takes with her cases, and her commitment to making life better for the protected party, is apparent across reports of her hearings from other observers (“Navigating engagement in capacity assessment”; “DJ Clarke calls time on public body delay”; “A young man failed by NHS South West London ICB and the London Borough of Wandsworth”). What’s also clear from these earlier blog posts is that DJ Clarke can also be very sharp with public bodies who seem not to be acting in P’s best interests – and in one disturbing report, also with family members (“Perhaps the most contentious matter is the question of his social media and internet access.” But who is the decision-maker?). Observers in this last case said they were shocked by the way DJ Clarke behaved towards the family – both through their counsel and to P’s mother in person. For Daniel Clark, one of the observers, DJ Clarke is “an impressive judge who was clearly frustrated with the lack of progress” in this case – but her behaviour typified a display of “asymmetric power dynamics”, quite unlike what he’d seen in two previous hearings of the same case. Nothing remotely similar occurred in any of the hearings I’ve watched.
I’ve observed a lot of different judges in a lot of different hearings. If I were P, or a member of P’s family, DJ Clarke is a judge I’d be very happy to have hearing my case.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
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