Appealing a Court of Protection judgment

By Robert Sharp, 4th February 2026

Any contested hearing in the Court of Protection will leave at least one party disappointed by the outcome.

Often, the disappointed party (whether that is a family member, a public body, or the protected person themselves) will accept the judge’s decision and work within the terms of the order that has been made.

On other occasions, the disappointed party may consider that the judge has made a mistake which may be corrected on appeal.

This post offers a basic introduction to Court of Protection appeals. It covers (1) the general principles that govern appeals and why appeals fail at an early stage (2) the procedure for making an appeal and some common reasons and (3) some alternatives to an appeal.

1. General Principles

In a recent judgment, Mr Justice Poole summarised when an appeal may be allowed in a single, dense paragraph:

“An appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which exceeds the ambit within which reasonable disagreement is possible and is plainly wrong.” (SW v Nottingham City Council [2025] EWCOP 53 (T3), at [35])

This requires some unpacking.

When bringing an appeal, it is not enough to state that you disagree with the judge’s decision. You must identify at the outset why the decision was wrong in law, or else identify a serious procedural failing that makes the decision unjust. (Rule 20.14(3), Court of Protection Rules 2017 (UKSI 2017/1035))

Appeals may be made against:

• Judgments caused by an error of law
• Judgments that fail to give adequate reasons
• Findings of fact
• A judgment based on fraud (i.e. someone deliberately lied to the judge)
• Case management decisions
• Costs decisions

Examples of successful appeals will be considered below. First, it will be helpful to outline in some of the basic principles that govern appeals and identify some misconceptions that often lead to an appeal being dismissed at an early stage.

No new evidence

It has been said that a trial is “not a dress rehearsal … it is the first and last night of the show” (Fage v Chobni [2014] EWCA Civ 5 at [114]). This principle applies as much to hearings in the Court of Protection as it does to civil trials. An appeal is only an examination of the judge’s decision, and not another chance to hold the full hearing.

Appellate courts take the view that the parties should have presented all the evidence to the first instance judge. For additional evidence to be considered on appeal, it must be something that was not reasonably available at the time of the trial. It should also be something credible that would have had an important influence on the result of the case (Ladd v Marshall [1954] 3 All ER 745, 748B per Denning LJ)

This principle applies to evidence that would have been available at the time of the hearing. If subsequent events change the fact pattern, that may be grounds for a fresh application to the Court (as to which, see below). However, new events rarely amount to ‘grounds for an appeal,’ because the judge could not possibly have taken them into account. New events do not render the decision wrong in law.

Appealing findings of fact

“… because a conclusion was reached on the facts which was not open to the judge on the evidence”
(Mr Justice Poole in SW)

When the parties disagree over what has happened or about the meaning of a piece of evidence, the judge may have to make a finding of fact. Fact-finding in the Court of Protection is relatively rare, and judges only make such findings when they are directly relevant to the decision they are being asked to take (Nottinghamshire County Council v SV [2025] EWCOP 37 (T3) at [46] and [55]).

When such findings are made, they are usually highly consequential to the outcome. It is therefore unsurprising when disappointed parties seek to challenge those findings on appeal (as happened in the SW case mentioned above).

However, appeal courts have been repeatedly discouraged from interfering with findings of fact made by a judge at the hearing. First instance judges have the best grasp of the facts and how they are relevant to the legal issues. Appeal court judges cannot duplicate that process. They do not have the benefit of listening to witnesses in person, and they cannot recreate the atmosphere of the courtroom through reading a transcript (Fage v Chobni [2014] EWCA Civ 5 at [114])

An appeal court is therefore highly unlikely to make different findings of fact, or indeed make different inferences or evaluations based on those facts. Only when a judge has made an obvious mistake, or an inference entirely unsupported by the facts, will the appeal court intervene. If your appeal does not deal with this, it will fail.

A matter of discretion?

“… the judge exercised a discretion which exceeds the ambit within which reasonable disagreement is possible and is plainly wrong” (Mr Justice Poole in SW)

Most Court of Protection cases require a decision in the ‘best interests’ of the protected person. The judge will weigh the pros and cons of a particular course of action. These decisions are exercises of the judge’s discretion. In a contested hearing where the parties disagree, the decision will involve balancing competing factors. Sometimes, all options are “… to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.” (Lord Fraser, G v G [1985] 2 All ER 225, 228b).

Appellants must understand that on matters of discretion, an appeal court is not asked to take the decision itself. Instead, it will only look at whether the decision made by the first instance judge was one that was open to them.

“Whether I would have decided it the same way if I had been in the position of the trial judge l do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer?”
Lord Justice Cumming-Bruce, Clarke-Hunt v Newcombe (1982) 4 FLR 482, 488

This is an extremely high bar for an appellant to meet. To succeed, you must show that there was something important that the judge completely overlooked, that they took something irrelevant into account, or that there was a legal principle that the judge failed to consider.

If your appeal does not identify those failings to address the ‘plainly wrong’ test, then it will fail.

The Court is the final decision-maker

A particular issue which arises in the Court of Protection and in Family Court proceedings is the role that family members play in the decision-making. Many people assume that the ‘next of kin’ has a casting vote in the care that their loved one will receive but this is incorrect. It is important to remember that, when a matter comes to court, it is the judge who is the final decision-maker regarding the best interests of a protected party.

[The] point needs to be crystal clear, the objective of the discussions with family members is not to ascertain their views and beliefs but to ascertain if what they have to say can illuminate P’s wishes and beliefs.” Mr Justice Hayden, NHS South East London Integrated Care Board v JP & ors [2025] EWCOP 8 (T3)

The views of family members cannot ‘trump’ the decision of the Court, and any appeal founded on this argument will fail.

The principle that the Court is the final arbiter is most starkly illustrated in those cases where the wishes of the protected person themselves are over-ridden. As the Open Justice Court of Protection Project team have witnessed, it is sometimes the case that the strong ‘wishes and feelings’ expressed by ‘P’ will be heard, and then a different decision taken (A County Council v LW [2020] EWCOP 50). The protected person and their family members may find this upsetting and counterintuitive, but the Court of Protection could not properly function if one party were able to constrain the Court or veto its decisions.

Successful appeals

As we have seen above, appeals in the Court of Protection are highly constrained. Only in narrow circumstances will judges allow an appeal to proceed.

However, it should not be assumed that all appeals are bound to fail and should be discouraged. Appeals can and do succeed.

One area where there is more space for successful appeals is over the first and most fundamental question that all Court of Protection proceedings must consider: whether the protected person lacks capacity. The provisions of the Mental Capacity Act 2005 are precise and start from a presumption of capacity. The question is also decision-specific — a person might have capacity to decide certain aspects of their care and finances, but not others.

Therefore, there is potential for experienced judges to fall into error. Recent examples include:

• In ZZ [2024] EWCOP 21 a local authority successfully appealed a Tier 2 decision that a young man had capacity to engage in sexual relations.
• The opposite situation occurred in ZX [2024] EWCA Civ 1462 where a young man (through his litigation friend) successfully appealed a Tier 2 decision that he did not have capacity to engage in sexual relations.
• University Hospitals Birmingham NHS Foundation Trust v Thirumalesh [2024] EWCA Civ 896, where the Court of Appeal overturned a Tier 3 judge’s decision that a terminally ill woman lacked capacity to make decisions about her treatment.
• In CT v London Borough of Lambeth [2025] EWCOP 6 (T3), Mrs Justice Theis allowed an appeal against a decision of a Tier 2 judge that a homeless man with multiple mental health issues did not have capacity for decisions about residence and care. She held that the judge had “set the bar too high” and not considered the statutory test for mental capacity in the correct order.

2. Procedure

The ‘overriding objective’ in the Court of Protection is to deal with cases “justly and at proportionate cost.” (Rule 1.1, Court of Protection Rules 2017). Both elements of this objective mean that the Court must guard against unnecessary appeals. There are several reasons for this:

• There is a benefit to finality. An unfounded appeal can often delay implementation of an order designed to protect the person’s best interests. The uncertainty also prevents long-term planning. This is unjust to all the parties, including the protected person.
• An experienced judge will hear the appeal. Their time is an expensive and finite resource. If a judge is distracted by an appeal with no merit, they cannot deal with other cases. This is unjust to other protected parties and to the public who fund the Court system through taxes.
• Appeals cause all the parties to incur legal costs. In many Court of Protection matters, those costs cannot be recovered from the other side. Alternatively, it may mean that additional costs are charged to the protected party, depleting their estate.

The appeal procedure is therefore tightly controlled.

Permission

If you wish to appeal a decision, you must first seek permission from the Court. The only exception to this is an appeal of an order for committal to prison for contempt of court, which carries an automatic right of appeal (Rule 20.7).

At the hearing, you may immediately seek permission to appeal from the judge who made the decision, but this is not a necessary first step (Rule 20.6(2)(a) and (3)). If the first instance judge refuses permission, then permission may be sought from a judge of a higher tier (Rule 20.6(2)(b) and (4)). Your notice of appeal should be submitted on form COP35.

The Court will only grant permission if there is a ‘real prospect of success’ (Rule 20.8(1)(a)). This means you must show that the prospects are realistic and not fanciful (R (A Child) [2019] EWCA Civ 895, [31]). This does not mean that the prospect of success is ‘more likely than not,’ but it is still a difficult hurdle to overcome.

To help the higher-tier judge decide whether to give permission, you must also file arguments in support of your application using form COP37 (‘skeleton argument’). Your ‘grounds for appeal’ should clearly identify the error to be appealed and set out the relevant legal rules. If you are challenging a finding of fact, then you must set out why the judge’s conclusion is unsupported by the evidence. Similarly, if you are claiming that an exercise of discretion was ‘plainly wrong,’ then you must clearly set out why. If these matters are not addressed, then it is very likely that the judge will consider that your appeal has no reasonable prospect of success.

You must serve the appeal notice on all the other parties. They have a right to make submissions to the Court, arguing for or against permission to appeal. However, the permission stage is a matter between the appellant and the Court, rather than between the parties. Therefore, there is no obligation on other parties to file submissions.

In very rare cases, a court may also give permission when there is ‘some other compelling reason why the appeal should be heard’ (Rule 20.8(1)(b)). ‘Compelling’ does not just mean that the matter is important to the parties — that would be true of all Court of Protection cases! Instead, a ‘compelling’ reason will be one where the law requires clarification or there is a wider public interest in the Courts delivering a binding decision for future cases.

Oral Permission Hearing

Permission is first considered as a paper exercise, with no hearing. However, if permission is refused ‘on the papers’ by a Tier 2 or Tier 3 judge, you may request that permission be considered at an oral hearing (Rule 20.6(6)). Further fees will be payable at this stage. The option of an oral permission hearing is not automatically available when the Court of Appeal refuses permission (although occasionally the Court of Appeal will order that a permission hearing takes place: CPR 52.5).

The other parties are entitled to attend the oral permission hearing, but there is no obligation on them to do so.

If permission is denied after an oral hearing, no further appeal is allowed (Rule 20.6(8)(a)).

Full Appeal Hearing

If permission is granted (whether by a first instance judge, by a higher tier judge ‘on the papers’, or by a higher tier judge at an oral hearing) then a date will be set for the full appeal to be heard.

The appeal will be heard by a judge at a higher tier than the first instance judge. Decisions made by tier 3 judges are heard by the Court of Appeal.

When the Court lists an appeal hearing it will also issue directions for the preparation of the ‘bundle’ of relevant paperwork, and for the filing of skeleton arguments. It is usually the appellant who takes responsibility for the bundle. However, in cases where the appellant is a litigant-in-person, the Court will probably require one of the parties with legal representation to prepare the bundle in readiness for the hearing.

On the day of the appeal hearing, the appeal judge(s) will hear from the parties and apply the tests above in deciding whether to allow or dismiss the appeal. In nearly all cases, the judge will produce a written judgment, giving their reasons. If the matter is straightforward or urgent, the judge may give an oral judgment in the moment (‘ex tempore’).

After the appeal

If your appeal is allowed, the consequences may vary. The appellate judge may make an entirely new decision on capacity or best interests, which the parties will have to implement.

However, there may be many practical reasons why a new decision cannot be made by the appeal court. For example, new, different or better evidence on the issues may be required. In those circumstances, the appellate judge may allow the appeal but refer the matter to another judge to make case management directions and arrange a new hearing. It is entirely possible that the new decision will be the same as the previous one, made for different reasons.

3. Alternatives to an appeal

Reconsideration

It often happens that a Court takes a decision without giving the parties an opportunity to be heard.

• Some hearings are held ‘without notice’ to one of the parties. This could be because the application is urgent, or because the party was deliberately not told about the hearing (for example, if the Court believed that their participation might undermine an order).
• Judges often take uncontroversial or urgent decisions after reading the papers, with no hearing scheduled.

In these cases, any party who objects may apply to the Court to have the matter reconsidered (Rule 13.4). This is not an appeal, because it will be heard by the same judge or a judge of the same level.

It is important to remember that a ‘reconsideration’ only applies to without notice hearings and decisions made without a hearing. If a party is notified that a hearing is happening, but fails for whatever reason to show up, then they cannot apply for reconsideration.

Judicial Review

A common dissatisfaction with a Court of Protection decision is that family members believe that their relative is not receiving the standard of care they deserve. Unfortunately, Court of Protection judges do not have the power to order a particular type of care to be made available for a protected person, if it has not been presented as an option by the provider.

“[The Court] has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the ‘available options’.”
— Lady Hale, N v A CCG [2017] UKSC 22 at [35]

This means that if a family member feels that a Local Authority, Trust, Health Board or Integrated Care Board (ICB) could and should have provided different care to their relative, then the appropriate route is a complaint or a judicial review of the decision-making. This is a claim brought against the Local Authority, Trust, Health Board or the ICB.

Such claims lie outside the Court of Protection jurisdiction. Thus, any appeal in the Court of Protection that looks like ‘judicial review by the back door’ will be denied permission.

Material Change in Circumstances

Ordinary civil disputes usually deal with matters wholly in the past (for example, whether someone was negligent or failed to perform the terms of a contract). The Court of Protection is a different kind of jurisdiction. It considers a person’s current mental capacity and best interests, and makes orders for what is to happen to them in the future.

Therefore, there must always be space for a Court to make a new decision, should circumstances change or new facts emerge that alter the ‘best interests’ calculation. In these circumstances, it is open to family members, clinicians, social care practitioners or litigation friends to apply for a new decision. They may ask for an entirely new order to be made, or for an existing order to be varied (CPR 3.1(7), COP Rule 2.5(1)). The Court has its own power to re-direct appeals to a new hearing (Rule 20.14(1)(b)).

Conceptually, this is not an appeal! This is because, when an application is made for a new or varied order, the validity of the previous decision-making is not challenged. To the parties the matter might look like an ‘appeal’ but procedurally, it is a new application to consider new events.

That is not to say that the previous decision-making will be ignored. When faced with an application for a new ‘best interests’ decision, the Court will check that the current situation is “not clearly covered by the earlier judgment, or there has been a material change of circumstances or new evidence that calls into question the previous findings” (An NHS Trust v AF & Anor [2020] EWCOP 55at [22]).

 When there is disagreement over medical treatment, the court will not revisit a decision “on the basis of partially informed or ill-informed opinion” (Great Ormond Street Hospital v Yates and others (No 2) [2018] 1 All ER 623 at [11]).

A recent, illustrative example of an order being revisited is Patricia’s father, mother and aunt v Patricia and others [2025] EWCOP 30 (T3), which concerned a woman with anorexia. In 2023, the Court of Protection made a ‘best interests’ order prohibiting medical professionals from force-feeding Patricia through restraint and nasal-gastric tubes. By 2025, her condition had worsened, and so her family applied to lift the orders. Mrs Justice Arbuthnot allowed the application but found no fault in the reasoning of her colleague in 2023. Patricia’s family secured the outcome they sought… but if they had appealed the earlier order, it is likely they would have lost.

Note: This overview is not intended as legal advice. The law in this area is complex —necessarily so, because it must cater to the full range of human experience in an emotionally charged area of life. If you are a party to Court of Protection proceedings and considering an appeal, we recommend you seek support from a solicitor or direct access barrister in navigating the law and procedure.

Robert Sharp is a pupil barrister at Field Court Chambers, supervised by barristers specialising in Court of Protection work. He previously worked in the legal department of a London local authority. Before converting to the law, he spent a decade as Head of Campaigns at English PEN, a charity promoting freedom of expression and privacy rights. His personal website is at robertsharp.co.uk, and you may also find him on LinkedIn, Bluesky and X.