By Elissa Novak (with an introduction by Celia Kitzinger), 22nd February 2026
This is effectively the third tranche of litigation in the long-running case concerning Luba Macpherson and her daughter, “FP”. First came the welfare proceedings for FP which were concluded in 2023[1]. Then came committal proceedings which concluded in 2025 with Luba serving a prison sentence for contempt of court. She had breached court orders by repeatedly publishing information about her daughter, highlighting the abuse, forced medication, professional collusion and institutional neglect, to which she believes her daughter is subjected[2].
Shortly before her term of imprisonment, Luba Macpherson launched this third phase. On 10th July 2025, she made a COP 9 application to vary an existing order (I’m not sure which one) to allow her to seek her daughter’s written consent to complaints she (LM) wants to make to the Local Government and Social Care Ombudsman (LGSCO) and to the Parliamentary and Health Service Ombudsman (PHSO) and to other bodies. She further sought a direction from the court that Sunderland City Council and the staff who care for her daughter should “permit and support [FP] to express her wishes and consent (if she chooses); and refrain from obstructing her ability to participate”.
On 7th August 2025, DJ Temple dismissed that application on the papers (i.e. without a hearing), giving two reasons:
- the welfare proceedings have already concluded with a final substantive order from Mr Justice Poole on 4th December 2023,“so there are no ongoing proceedings within which to issue a COP9 application”.
- “no grounds have been set out in the application to vary any existing order”.
On 18th August 2025, Ms Macpherson submitted an application for a reconsideration – asking the judge to reconsider her order dismissing the application of 10th July and to set it aside. She wanted her application of 10th July 2025 reinstated and listed for proper consideration.
When a judge makes an order without a hearing (i.e. ‘on the papers’) or without notice to any person who is affected by it, it’s possible to apply to the court for the order for it to be reconsidered. It says so in the Court of Protection Rules 2017, Rule 13.4. It’s an important rule, because it means that people who’ve not had the opportunity to make oral submissions to the judge, and/or might not even know that an order has been made that affects them, can explain why they think it’s wrong and ask the judge to think again. This is different from an Appeal, which is when the judge has made a decision after hearing from everyone: see “Appealing a Court of Protection judgment“.
On 19th September 2025, a hearing was listed and Luba Macpherson appeared (remotely) in court. But this turned out to be during the period that she was in prison for contempt of court, and the hearing was adjourned at Luba Macpherson’s request, as she hadn’t been provided with her papers in prison (I wrote about it here). Having checked her release date, the judge re-listed the case for an oral hearing on 14th November 2025.
On 14th November 2025, there was an effective (remote) hearing. DJ Temple refused to reconsider her previous order of 7th August which deemed Luba’s application to be totally without merit, and she did so effectively on the same grounds as before.
Then, Luba Macpherson appealed DJ Temple’s decision.
Her appeal was first listed to be heard by HHJ Smith (a Tier 2 judge) in Newcastle, but the appeal didn’t go ahead. The main reason for that was the judge’s concern that Poole J’s order of 15th December 2023 specified that “in the event any party seeks to restore proceedings for any purpose or makes a fresh application”, he reserved the case to himself or to another Tier 3 (more senior) judge. She said: “I am not a T3, I’m a T2. It seems to me it could reasonably be argued that an appeal is exactly that and indeed that the COP 9 should have been referred to Mr Justice Poole”. (It turned out – I think – that Poole J had agreed to DJ Temple hearing the earlier application, but hadn’t been told about the appeal and HHJ Smith’s involvement.)
So, on 10th February 2026, the case was transferred to a Tier 3 judge (not Poole J, but Theis J) sitting at the Newcastle Combined Family Courts and Tribunal Centre. It was an in-person hearing, but remote links were provided for those who wanted to observe.
Permission to appeal hearing (before Theis J) By Elissa Novak
There is a temptation, when observing Court of Protection cases, to focus on the outcome. Who got the decision they wanted, who didn’t, and the judgment.
But that is rarely sufficient to understand the human cost of these cases or the effect that litigation has on the people affected by them.
This is perhaps especially true in long running cases and those involving repeated applicants, such the case (COP 13258625) I observed (remotely) on 10th February 2026 before Mrs Justice Theis, sitting in person in Newcastle – an appeal brought by Luba Macpherson, about her daughter FP. As Mrs Justice Theis observed “it would be an understatement to say that there has been extensive litigation concerning FP”, and this is the latest in a very long series of hearings.
Luba had filed a COP 35 appeal and grounds for appeal on 21st November 2025. The grounds of appeal, which she had since updated, included failure to hold a welfare hearing, procedural unfairness, errors under the Mental Capacity Act 2005, errors under the deprivation of liberty safeguards, irrationality, breaches of ECHR Articles 5 and 8, safeguarding failures, error in treating matters as concluded when they are not and serious transparency irregularity. Luba sought permission to appeal and for the appeal to be allowed if permission were granted, and the setting aside of the orders made by DJ Temple on 7th August 2025 and 14th November 2025, plus other case management directions.
Ms Macpherson’s application for permission to appeal was opposed by Sunderland City Council represented by Mr Sam Karim KC and by FP through her litigation friend (an experienced advocate and not the Official Solicitor in this case) represented by Mr Joseph O’Brien KC.
Before the hearing began, I received what felt like a fairly unusual request. Observers were instructed to join with cameras switched off and to display only their professional role rather than their name, described as necessary “to comply with the safety measures put in place for the benefit of those attending the hearing”. Yet, once the hearing opened, the court asked observers to switch cameras on and confirm by name that we had received the Transparency Order. In trying to comply with the original instruction not to use my camera, I managed to decline permission at precisely the wrong moment and could only confirm receipt via the chat function.
Once Mrs Justice Theis had confirmed that observers had received the Transparency Order, she outlined the task ahead. This was a renewed application for permission to appeal District Judge Temple’s refusal of permission in November 2025. That issue would be dealt with first and depending on the outcome, the hearing would either conclude at that point, or if the application to appeal were successful, the court would then proceed to hear the appeal. Time would need to be managed effectively, she said, as the court had a substantial bundle of 449 pages.
The first ten minutes of the hearing revealed the dynamic that would shape the morning. Luba repeatedly sought reassurance that the court had seen and heard what she regarded as “critical” material, while the Judge sought to draw a procedural line and move the hearing forward.
That tension emerged almost immediately, when Luba raised a procedural point about the court bundle, insisting that documents and witness statements were “going missing,” and stressing how serious that would be: “how can you have a clear trial if documents are going missing?” Mrs Justice Theis, by contrast, approached it as a practical issue: she had the 449-page bundle, she had read the additional attachments, and she was not accepting further documents: “No no no. I’m not accepting anymore bundles, I’ve got enough bundles”. With assistance from Mr Karim KC, the parties worked methodically through the documents. In reality, nothing material had been lost. Only two items sent the previous day were not included but both had been read and considered by the Judge.
Even so, the underlying tension between the court’s need to remain focused and move forward and Luba’s fear of not being fully heard remained and continued to play out when Luba raised a further point, this time concerning FP’s right to be heard. She asked whether she could outline what she described as a “problem of procedural inconsistency”. At this point, the judge intervened to bring focus back to the immediate issue and explained that she understood the current position to be that neither the local authority nor FP’s representatives supported FP’s participation in this hearing. Luba was uneasy about FP’s legal representation, particularly Mr Joseph O’Brien. She questioned why he now opposed FP’s attendance when, in her recollection, there had been no such objection from the litigation friend previously. She said she wished to challenge that shift. Mr O’Brien clarified that he was taking instructions from the litigation friend, who had investigated the advisability of FP’s presence in court between the last hearing and this one and decided it was not in her best interests. At points, Ms Macpherson began speaking over the judge, and connecting this issue to wider concerns she held about the conduct of FP’s legal representatives and alleged withholding of evidence in earlier proceedings before checking herself. Mrs Justice Theis intervened calmly: “It’s not going to help if we both talk at the same time.” Luba fell silent and waited.
Mr O’Brien KC (for FP) and Mr Karim KC (for the local authority) put forward very similar submissions, arguing that this was a procedural appeal hearing, not a substantive welfare review. FP’s participation, they submitted, was already secured through her separate legal representation and her long-standing Litigation Friend, who had known her since 2017. Both the Litigation Friend and the allocated social worker had filed statements opposing FP’s attendance on the basis that it risked unnecessary distress and deterioration in her mental health.
Crucially, Mr O’Brien KC acknowledged that it was the Litigation Friend’s position that FP would likely want her mother to succeed in her application. But he submitted that FP’s desire did not remove the potential for harm and that it was not in FP’s best interests to witness her mother address the court “in an emotional way or … criticise the court and carers“.
For Luba, that framing was difficult to accept. She returned to section 1.2 of the Mental Capacity Act (“A person must be assumed to have capacity unless it is established that he lacks capacity”) and to FP’s “legal right… to be heard.” Her voice tightened when she said, “This is her life.” She spoke of years in which FP had, in her view, been excluded. Yet even as emotion surfaced, she repeatedly stopped speaking when directed to do so.
Mrs Justice Theis acknowledged the duty to consider P’s participation carefully. She accepted the evidence that direct attendance in this narrowly procedural appeal hearing could risk harm, and concluded that FP’s participation was sufficiently secured through representation. No further steps would be taken. Luba accepted the decision, but her daughter’s “exclusion” would be something she raised throughout the hearing.
With the procedural points addressed, Mrs Justice Theis moved on to the substantive matter of permission to appeal. She repeatedly reminded everyone of the legal framework. Under rule 20.8 of the Court of Protection Rules 2017, permission to appeal can only be granted if the appeal has “a real prospect of success” or there is “some other compelling reason” for it to be heard. This was, she emphasised, a narrow procedural inquiry: “I am dealing with a narrow issue about whether there is a chance of success for your appeal”.
For Luba, however, it was clear nothing about this felt narrow. She began by objecting to the Local Authority’s characterisation of her conduct as vexatious. She asked “how years of unresolved medical and safeguarding concerns can now be reframed as vexatious conduct simply because I continue to raise them?” She acknowledged the legal test but insisted she could not separate it from the wider history, telling the court: “I want you to see what’s going on and why I keep complaining and keep litigating and nobody [is] listening.”
Again and again, Mrs Justice Theis brought her back to the same point, that the court was not re-determining welfare matter and that, as judge, she could only make a decision on the application in front of her. Luba argued that final orders in December 2023 did not extinguish the Court’s jurisdiction given that restrictions on her daughter remain in place. She pointed to a paragraph in the most recent Transparency Order from 22nd August 2025 which stated the hearing was listed to consider where FP should live, contact arrangements and deprivation of liberty in relation to care and residence. This she submitted was proof that substantive welfare issues were still alive. (The judge later recognised that this paragraph was mistaken and asked for it to be changed.) Luba raised alleged inconsistencies, including the late provision of the transcript, and what she described as ongoing failures of review and “lawful recalibration”.
Mrs Justice Theis clarified that the only application before the court was the July 2025 COP 9 application relating to Ombudsman complaints. She asked Luba why she needed FP’s consent to make her complaints. Luba struggled to provide evidence for this. She maintained that the Ombudsman had asked for FP’s consent.
Mr Karim KC submitted that the July application was misconceived. Luba did not need FP’s consent to make a complaint to the Ombudsman in her own right, as evidenced by previous Ombudsman complaints she had submitted in evidence. If the complaint were “truly on FP’s behalf”, then the existing capacity findings apply – and as FP does not have capacity to make decisions about her care, she cannot “consent” to complaints made about her care.
As to whether there were any existing and ongoing matters relating to welfare, Mr Karim KC pointed out that the 4th December 2023 order states unambiguously: “these personal welfare proceedings are concluded”. He stated that Luba’s submission did not meet the test of COP Rule 20.8 having no reasonable prospect of success and no compelling reasons to be heard. The prior decision was well reasoned (he said), and it was the local authority’s position that Luba was effectively seeking a new best interests determination, rather than a procedural appeal on District Judge Temple’s decision. With respect to Luba’s assertion that the Court of Protection retains jurisdiction when P has continuing restrictions, Mr Karim KC pointed to authority from Lord Justice Peter Jackson that: “the Court of Protection exists to make decisions about whether a particular decision or action is in the best interests of the individual; it is not a supervisory court” ( Re A (Covert Medication: Residence) [2024] EWCOP 19). Finally he submitted that Luba’s arguments were directed to welfare grievances rather than to any procedural error in District Judge Temple’s reasoning.
Luba had interrupted more than once during Mr Karim’s submission, particularly when matters turned to prior judgments, saying “You cannot condemn my daughter for life.” Mrs Justice Theis repeatedly asked her to stop reminding her, “nobody spoke when you were speaking”.
Mr O’Brien KC, adopted Mr Karim’s submissions and developed them further. If fresh welfare proceedings were to be commenced, he said, they would require a COP1 application and permission under section 50 of the Mental Capacity Act 2005. He began to outline the statutory criteria when Mrs Justice Theis paused him and asked: “Is that the Mental Capacity Act … so Mrs Macpherson can follow?” She then directed Mr Karim to help Luba locate the relevant section.
Mr O’Brien KC emphasised that enforcement of injunctions does not keep welfare proceedings alive and described the present application as, in substance, “a rehash” of longstanding complaints. Luba reacted audibly to that characterisation, speaking over Mr O’Brien to say that this was because “nobody did anything” and that her daughter had been “actively excluded”.
When Luba’s turn to speak came, Mrs Justice Theis gave clear directions: she was to respond to new points raised by counsel and avoid repeating submissions already made. Luba returned again to the 22nd August 2025 listing: the listing stated that the issues before the court concerned FP’s residence, contact and authorisation of deprivation of liberty – so that (she said) was proof of ongoing “core welfare issues” being considered. Mrs Justice Theis turned to Mr Karim KC and asked directly whether this paragraph of the Transparency Order was incorrect. He agreed it required amendment and suggested it had likely been a standard form order not updated correctly. The judge accepted that explanation but for Luba, this was a “serious contradiction”[3].
As Luba’s submission continued, her arguments widened. She spoke of FP’s past psychiatric assessments, removal of her own role as Power of Attorney, and what she described as “threats” from the local authority. She referred to having contacted Human Rights Watch in the United States in 2023 and arranging a call that was cancelled shortly before it was due to take place. She said she intended to pursue this again, noting that the President had changed and was “very aware of what is happening in courts… all these illegal DoLs“.
At points she sounded distressed, stating: “If the LA [are] threatening me, I’ve got something in my mind that I will pursue…” and spoke rapidly as she turned to institutional failure and urged the judge to read her emergency ECHR application “written by [a] top human rights lawyer”. Mrs Justice Theis for her part confirmed she had read the ECHR Rule 39 application from the bundle and announced that the court would now adjourn to consider the permission decision.
Judgment
When the court reconvened, Mrs Justice Theis returned to first principles. The question was whether the application for permission to appeal satisfied COP Rule 20.8: did it have a “real prospect of success” or was there “some other compelling reason” for it to be heard?
Mrs Justice Theis reviewed the background, including the final order by Poole J of 4th December 2023 stating: “these personal welfare proceedings are concluded”. From that flowed the central procedural obstacle for Luba. If proceedings were concluded, then a COP9 application, which operates within pre-existing proceedings, could not revive them. The judge accepted District Judge Temple’s reasoning that there were “no existing welfare proceedings within which a COP 9 application can be made,” and that Luba’s disagreement with previous decisions made by the court “does not constitute grounds for such variation”.
The Judge then addressed Luba’s allegations of procedural unfairness. Although Luba had received the transcript later than expected, Mrs Justice Theis noted she had had it for several weeks and had demonstrated understanding of it in her submissions. The procedural unfairness argument therefore did not cross the threshold. Mrs Justice Theis endorsed District Judge Temple’s characterisation of the application as, in substance, an attempt by Luba to revisit earlier determinations.
On the Ombudsman issue, the judge found there was no evidence that FP’s consent was legally required for Luba to pursue a complaint and this meant that her application was unnecessary.
Finally, regarding Luba’s question of jurisdiction, Mrs Justice Theis echoed Mr Karim’s earlier submission, citing Lord Justice Peter Jackson’s authority that: “the COP exists to make decisions about whether a particular decision or action is in the best interests of the individual; it is not a supervisory court”. As such she rejected the idea that ongoing restrictions automatically generated continuing supervisory jurisdiction.
Permission to appeal was refused and the application was certified as “totally without merit”.
Observing this case, the outcome felt almost inevitable and I felt huge sadness for Luba and her family. On its own terms, the refusal of permission to appeal was legally clear, and difficult to fault. And yet here was a mother, without representation, arguing with urgency and conviction that her daughter has faced injustice and ongoing harm, while the court tells her, unequivocally, that proceedings are concluded.
Institutional distrust rarely occurs in a vacuum. It often emerges from prolonged experiences of feeling unheard, overruled and marginalised. Stepping back from this particular hearing, it seems there must be more the Court of Protection can do at an earlier stage to prevent situations like this from arising. By the time families reach the point of repeated applications, escalating sanctions and entrenched mistrust, the legal framework may no longer be capable of resolving the underlying conflict. Managing expectations more clearly, recognising and adapting to differences in communication, and addressing mistrust before it calcifies must be a priority. It may not resolve substantive disagreement but it may help to prevent families from being driven slowly and painfully into procedural dead ends.
Elissa Novak Elissa Novak is an unpaid carer to her son and studies Law part-time with the Open University through its Carers’ Scholarship Programme.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
[1] Welfare judgment SCC v FP & Ors [2022] EWCOP 30)
[2] Committal hearings: Sunderland City Council v Lioubov Macpherson [2023] EWCOP 3; Sunderland City Council v Lioubov Macpherson [2024] EWCOP 8; Appeal against committal: Lioubov Macpherson v Sunderland City Council [2024] EWCA Civ 1579; Capacity to conduct appeal and contempt proceedings: Lioubov Macpherson v Sunderland City Council [2025] EWCOP 18 (T3)
[3] Editorial footnote from Celia: As a court observer, my experience is that the public lists (and the transparency orders) frequently can’t be relied on as providing accurate descriptions of the matters before the court. This is especially so in long-running cases, where the set of issues before the court at the outset remain recorded in the transparency order and public list, but matters have evolved in the meantime and the orders and listings have not been updated.
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