By Daniel Clark, 3rd December 2025
On 13th November 2025, District Judge Davies (sitting remotely at Derby Family Court) authorised the deprivation of liberty of P, a young man who lives at home, for a period of six months. This authorisation came three years after the initial application in this case (COP 13670825).
I’ve observed two thirds of the hearings in this case: one on 10th April 2025 (“the April hearing”), and one on 13th November 2025 (“the November hearing”). As far as I can tell, there has only been one other hearing (in December 2024).
Derby City Council, the applicant local authority, is represented by Alison Bush, a solicitor employed by the Council itself. P is represented by his mother, acting as his litigation friend[i]. She was joined by P’s father at the April hearing but he was not present at the November hearing.
Here’s how this blog is organised:
- In the first section of this blog, I’ll set out the background to the case.
- In the second section, I discuss the support plans, and some disagreement about whether or not it should be written in the first person.
- In the third section, I explain the hunt for an appropriate 1.2 representative.
- Finally, I’ll explain the educational provision for P, and why the uncertainty around this has caused delays in the judge authorising a deprivation of liberty.
- Background
Counsel for the local authority explained in a very helpful opening summary at the November 2025 hearing that this case “has a long but not overly complicated history”.
In October 2021, a judge sitting in the Court of Protection authorised P’s deprivation of liberty under the Re X streamlined procedure. As Eleanor Tallon has explained in her blog, the Re X procedure was established following the Supreme Court’s judgment in Cheshire West. It was intended “to provide a more speedy and manageable response for non -contentious community DoL application”
At that stage, P’s mother was appointed to act as P’s Rule 1.2 representative. As Eleanor explained in her blog, the role of a Rule 1.2 representative is “to make a statement to the court outlining the representative’s views on whether the arrangements are in the person’s best interests, without which the application cannot proceed.
A further application to authorise a deprivation of liberty was made in September 2022. At the November 2025 hearing, Counsel for the local authority explained (in a very detailed opening summary) that “in the intervening time [i.e. between October 2021 and September 2022], the courts generally had a change of heart [about] appointing family members providing care who are also 1.2 rep.”.
As a result, the judge considering the renewed application (Tribunal Judge Hornes) directed that a Court of Protection Special Visitor visit P and produce a report of his wishes and feelings. The proceedings were stayed until that report was filed, which happened in October 2024.
At that stage, P was out of school, and that was causing “issues” (I don’t know what but it sounded like the change in circumstances was causing distress to P). As a result, the judge removed the case from the streamlined procedure. At the April 2025 hearing, DJ Davies explained that this was “because the judge – Tribunal Judge Hornes – wasn’t happy to rubberstamp it, [and] that’s why it has come to the local court for further investigation”.
The case therefore was listed before DJ Davies in December 2024. Since then, he has also heard the case in April 2025 and November 2025.
Before getting into the substance of the hearings I observed, I’d like to pay testament to DJ Davies’s handling of this case. At various points he asked P’s mother if she had any questions, and answered them in a way that was crystal clear but not condescending. He repeatedly recognised the knowledge of P’s parents – including acknowledging the fact they have represented P at a SEN Tribunal.
In addition, at the start of the April hearing, at the request of P’s parents, he explained the role of observers in Court of Protection proceedings. He also asked if they had any objections to the presence of an observer[ii] (which they did not).
I’m glad that the judge dealt with that request for explanation in a fair and concise way but it is a shame that nobody had thought to explain the role of observers beforehand. I imagine that could be because P’s parents were not represented (indeed, P’s mother was representing P). For the lawyers reading this, may I suggest that you do make every effort to explain to family members that observers could be present at a hearing and direct them to our website for further information.
2. The support plan
At the December 2024 hearing (which I did not observe), the judge had directed that an up-to-date Care Act assessment and support plan be filed with the court in time for the next hearing. That hadn’t happened by the time of the April hearing, and he wanted to know why not.
According to Counsel for the local authority, the support plan hadn’t been prepared, “because that has taken a little longer – a lot longer – to discuss [the contents] with [parents], and the to–ing and fro–ining about what is to be included …The social worker visited on Monday and I understand that, on Monday, [P’s mother] has finally agreed the contents of the review assessment and also the new support plan”.
The judge wasn’t satisfied with that –
Judge: When was it actually agreed?
Counsel for LA: Monday, as far as I can understand.
Judge: So why haven’t I got it for today?
Counsel for LA: Because I don’t – I do apologise but I don’t have it yet. I was notified on either Tuesday evening or on Wednesday that [P’s parents] had agreed it. I don’t work on Wednesdays so I’m not in a position to have sent it to you before today.
Judge: But we would have made more progress if I’d had it today. I’m not sitting tomorrow so I can only review it on Monday.
It struck me that there was an under-current of blame-shifting. In particular, the blame for the delay was being laid squarely at the doors of P’s parents. However, P’s mother later told the court that both of them were unwell in February, and so had limited time to discuss the support plan – not quite the parental procrastination that counsel had made it sound like.
In her submissions to the court, P’s mother raised the issue that his support plan has been written in the first person. His previous support plans had not been written in the first person, but with a new social worker came a new approach.
The problem, P’s mother told the court, was a fairly simple one: “it indicates by putting it in first person that he’s written it. And I’ve said it shouldn’t be written like that….it would indicate he has fully written it and that he has capacity to join in the meeting, to be able to advocate himself…If you say ‘I’, it means I have taken part – P can’t take part”.
This wasn’t the first time that P’s mother was raising concerns about the use of the first person; she told the court that she had told the social worker about her misgivings. However, “it [third person] was removed because, in her [Social Worker’s] words, ‘I don’t like it so I’m changing it to the first person…For [Social Worker] her life moves on but they [support plans] stay with [P] for the rest of his life.”
In a similar way, P’s mother was also concerned that this new support plan made no reference to P’s diagnosis. Again, I want to quote directly from my notes of what she told the court: “[P]’s diagnosis has been removed from the support plan and I asked for it to be put back in. I was told it’s not necessary and irrelevant. To me, to remove it is to take away from all the importance of what we’re fighting for”.
I agree. The simple fact is that P would not be a subject of Court of Protection proceedings, and his parents would not have to fight for him to access education, if not for his diagnosis of an impairment of mind or brain (and the effect of that on his decision-making ability). To remove reference to it is to remove part of him from the support plan – somewhat ironic given that it’s written in first person.
The judge told P’s mother that he had seen many support plans written in the first person, including in his capacity as a Family Court judge. However, this wasn’t the most important part of the support plan: “I am more interested in substance over form” – that is to say, the court was more interested in what the plan said rather than how it said it. Nevertheless, he recognised the concerns, and said to the local authority counsel: “I want to hear why it’s in those terms and why – given [the] objections….why can’t it be re-written?”
Counsel responded that she will discuss this with the social worker, and take instructions on the point. She pointed out that this “might affect whether I can get the support plan to you for tomorrow”, to which the judge gently reminded her that he would not be at work until Monday. In fact, as the hearing came to a close, he directed (without asking if it was a workable timeframe) that the draft order and support plan be filed with him by Monday.
This issue was not raised again at the November hearing, which I assume means that the issue was satisfactorily resolved.
3. An appropriate 1.2 rep
As explained in the background section of this blog, the issue of identifying an appropriate 1.2 representative had caused considerable delay in this case.
During the April 2025 hearing, the judge had explained to P’s family why there may be a problem with those providing care also acting as a 1.2 rep: “The role of a litigation friend is to make decisions in proceedings. But a rule 1.2 rep is to be the voice of [P], advocating for what he wants. Sometimes, it doesn’t always happen, there can be a conflict of the roles – I’ve said it’s nuanced – and sometimes it’s better to have the 1.2 rep as somebody entirely independent. There are cases where someone can, and does, wear both hats. In my experience, in a Re X where we have deprivation of liberty in the community, even if there are no safeguarding concerns it’s sometimes better to have somebody else….[there is a] hypothetical potential for conflict of interest. Is there anybody else who can adopt that role or is it your case that you feel you can?”
P’s mother seemed understanding of the position. She told the court that she’d already asked another family member if she would take up the role but, as she also provided P with some support, she had come to realise (I think as the judge was speaking) that she couldn’t do it either. That left “the only other person who doesn’t have a caring role [which] is his eldest brother, and I didn’t realise it was an issue [meaning he hadn’t yet been asked] so therefore the only person I could ask is his brother”.
At this stage, the judge gave directions that the order would make provision for another Special Visitor’s report “but if somebody is prepared to come forward then we can simply vary the order and not do the report”.
By the time of the November 2025 hearing, P’s brother had indeed agreed to take up the role. Counsel for the local authority told the court that there had been some difficulty in acquiring a witness statement, detailing the brother’s views on P’s support plan and his care arrangements. It sounded as though P’s brother had filed the witness statement in April 2025 (so shortly after the last hearing) but this hadn’t made its way to the hands of the local authority until the Tuesday before this hearing (so two days before).
Counsel explained that, “the local authority’s position before we had received that was for the court to consider removing [P’s brother] as 1.2 rep”. At this point, the judge said what sounded like “not an option,” but counsel hadn’t realised the judge was speaking and had continued speaking herself. She told the judge that, as they had now seen the witness statement, the Council’s position was that the brother should remain as 1.2 rep.
The overlap between the judge and Counsel meant I can’t be sure that’s what the judge did say. However, I’m fairly confident that’s what the judge did say because, later in the hearing, he described the brother’s statement as setting out his views in a way “perhaps only a family member could – that’s been helpful”.
The final order, authorising P’s deprivation of liberty, was to be sent to P’s brother in his capacity as 1.2 rep.
4. Educational provision
At the April hearing, P’s parents wanted P to attend his College for a further year, funded by an EHCP[iii]. At that stage, it had not been agreed by the SEN team in the Council. The decision should have been communicated by the end of March but, come April, they were still waiting.
The question of whether P would receive educational provision has been relevant not only to the support P will receive but what the deprivation of liberty that the judge was authorising would look like. If P was not to receive education for a further year, there would need to be a “Plan B”.
At the November hearing, it was confirmed that P has been approved for further time at College. Unfortunately, there were more problems.
As it stood, the Council’s SEN team had said that P can stay at the College for another academic year (and indeed had already started). However, the College hadn’t confirmed that they were prepared to offer a place to P beyond December.
The judge asked P’s mother whether she had “any straws in the wind” as to whether P could remain past December. She told the court that it seemed the delay was purely administrative, and that the College would be offering another year to P. She told the court that the delay in confirmation came down to the fact that, at an in-person review at the College, Derby City Council had been invited to (but ultimately didn’t) attend. The College then didn’t know the funding had been confirmed for the full academic year, meaning they couldn’t confirm that P could stay beyond December.
The judge seemed content with this. He asked P’s mother to explain what the plan was after the end of the academic year, when P would no longer be attending education. P’s mother gave the court a great deal of detail about the service provision she had been looking into. It would be unnecessarily intrusive for me to describe what that was but, in the words of P’s mother, they all converged on the aim that “[P] will have a fulfilled life which is what he needs and deserves”.
The judge therefore identified that the support plan will need to change around the middle of 2026, meaning the care arrangements (that amount to a deprivation of liberty and therefore require court authorisation) will change then. After canvassing the views of P’s mother and Counsel for the local authority, he confirmed that he’ll authorise the deprivation of liberty for six months. At that point, the council will need to re-apply to the court for a further authorisation – though this might not need a hearing, and may well be approved by the streamlined procedure. In the meantime, if the College say P cannot stay beyond December, “the matter needs to be brought back, and my door is always open”.
The judge concluded the hearing by addressing P’s mother: “We might meet again [P’s mother] but, if not, I wish you, [P], and the rest of the family well”.
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.
[i] As far as I am aware, this is the only blog published by the Open Justice Court of Protection Project where a family member has acted as P’s litigation friend.
[ii] Any party or interested person is entitled to object to the presence of observers. In such an event, it’s for the judge to decide whether observers will be permitted to attend or whether the case should be heard in private (see Court of Protection Rules 4.1-4.4). For a report of a hearing where the protected party objected to the presence of an observer, and the judge ruled that the case should therefore be heard in private, see: Balancing open justice and P’s right to privacy: A protected party says NO to a public observer “and her voice shall be heard” by Eleanor Tallon. These decisions are case-specific: P (or their family) cannot veto public observers or insist on private hearings.
[iii] The UK government website explains what an EHCP is: “An education, health and care (EHC) plan is for children and young people aged up to 25 who need more support than is available through special educational needs support. EHC plans identify educational, health and social needs and set out the additional support to meet those needs.” BBC’s Panorama have produced a documentary that explores the difficulties that families face when trying to acquire an EHCP and specialist educational provision: Kellie Bright – Autism, School and Families on the Edge
Promoting Open Justice in the Court of Protection 
I’m glad to see this Daniel. I have an aversion to support plans written in the first person when they are clearly professional words. I think the persons actual words, wishes, feelings should be recorded verbatim but it makes no sense to me to read huge swathes of social work language as if the person said it. I do not think this is personalisation. I once was presented with a capacity assessment in the first person!! Love to know other views
LikeLike
Thanks for this detailed report Daniel. I work in Older People’s mental health services and I have often seen care plans written in the first person (indeed they are called ‘My Care Plan’!). I agree with P’s mother here. Many of the people we see are able to write their own plans, but they don’t, it’s always the professionals – and so it never is ‘I’ doing the speaking via the written plan. Of those people who read their care plans (not all do at all because they’re not engaged or included in the writing of them of course) and have commented to me about them, not one person has liked the fact that they are written as if they themselves had penned it. People either don’t want to raise this because they don’t want to be seen as ‘difficult’, fearing that it might affect their care, or they just can’t be bothered, as a result (I think) from feeling disconnected from proper engagement and thinking about their care. They feel ‘done to’ and assume a passive position. I think this is a relational manoeuvre (possibly, at times, unconscious) on the part of systems to create pliant and agreeable patients/service users. Of course, sometimes, people themselves do want to be ‘done to’/fixed/not take an active part in thinking about themselves/their care – which is also a relational pattern that can be gently worked with to develop agency and active participation in one’s care – IF that’s the kind of (time consuming!) relational care that the ‘system’ wants to nurture.
LikeLike