By Celia Kitzinger, 19th June 2026
The woman at the centre of this case is in her forties, of Bangladeshi heritage, and she’s lived in the UK from a young age. She has a learning disability and is non-verbal, and also has hearing impairments. She lives with her family (both parents and her brother) in a rented property, and spends three days a week at a daycare centre.
Back in February this year (so four months ago) Tribunal Judge Smith made an order, following a one-day contested hearing at which all parties were legally represented, that it’s in P’s best interests to move to a supported living placement. I don’t know why the judge considered it to be in P’s best interests to move: I didn’t observe the February 2026 hearing and haven’t seen the order. There’s no published judgment. The Local Authority (London Borough of Lewisham) and the Official Solicitor support the move. The family opposes it.
The hearing I observed, in person, at First Avenue House in London on 16th June 2026, before Senior Judge Hilder, came about as a consequence of P’s brother (now without legal representation) having made an application to appeal the order to move his sister, and to stay the order until permission to appeal is decided.[1]
The judge relied in this appeal hearing on a note of the oral judgment under appeal – a note that had been agreed by the represented parties, but not yet submitted to the judge for approval (presumably due to time constraints). As I’ve noted before in other cases, it can be challenging for observers to understand what is going on in appeal hearings without having access to the judgment under appeal (or at least whatever written record of it is before the court). Given that there is now (with publication of my blog post) a written record of the appeal, and given the “administrative errors” that bedevilled this case (see below), I hope that the judgment might be published in due course.
“Administrative error” in the Court of Protection
There had been what SJ Hilder described as “administrative errors” in dealing with the brother’s application to appeal.
The brother filed a COP35 notice seeking permission to appeal within a few weeks of Tribunal Judge Smith’s order but “regrettably, that application was not referred to a judge” (said SJ Hilder). Instead, “a staff member requested a COP37 argument should be filed” – in other words, they asked the brother to send the court a position statement, which he did. When the position statement was received in mid-May “regrettably it was still not referred to the judge who made the order or to a Tier 2 judge. Instead, it was referred to a different Tier 1 judge [Tribunal Judge Reeder] for a review…”. That T1 judge (perhaps not aware that a COP35 had been filed?) heard the case. He refused the application for a stay and ordered that P should be transferred to the supported living placement the following week (on 15th June 2026), with the application for permission to appeal to be considered a month later (i.e. after the move had been effected). This should not have happened.
On Sunday 14th June, the day before P was due to be transferred, her brother (acting as a litigant in person) made an out-of-hours application seeking a stay of Judge Smith’s order so as to prevent P’s planned move. Morgan J stayed the order until 4.30pm on Tuesday 16th June 2026 and directed that the matter be referred to SJ Hilder.
This hearing was listed to consider whether Judge Smith’s order of 19th February 2026 should be stayed further and to make directions or dispose of P’s application for permission to appeal.
After explaining what had happened, Senior Judge Hilder apologised (in the hearing) to P’s brother: “I’m sorry your COP35 application for permission to appeal has not been dealt with more speedily. Normally it would be. This was an administrative failure.”
The sorry story of administrative (and judicial?) failure leading up to today’s hearing presumably offers the opportunity for reflective review, process improvement, and further training.
Consideration of the application for permission to appeal
After dealing with ‘housekeeping’ issues (including problems with the judge’s laptop, my questions about the Transparency Order, the opening summary from Senior Judge Hilder, and the position statements which the judge had not seen and required an adjournment to read), the judge asked counsel for the applicant local authority (Alexander Campbell), “So, where are we going to go next?”.
Counsel for the local authority said the two key issues were
- Whether the stay on Judge Smith’s order that P should be moved to live in the supported living accommodation should be extended beyond 4.30 today (the time it was due to expire under Morgan J’s order)
- What should happen to the brother’s application for permission to appeal. Would SJ Hilder hear it (and determine the appeal in a rolled-up hearing)? Or should it be referred to another Tier 2 judge?
The local authority’s position was that the stay on execution of Judge Smith’s order should not be extended further and that SJ Hilder should refuse permission to appeal.
Counsel for P via the Official Solicitor (Amina Ahmed) agreed with that position. She did not think it in P’s best interests for the stay to be extended and she invited the court to deal with the permission application today.
P’s brother suggested that rather than Senior Judge Hilder hearing his application for permission to appeal, Judge Smith should do so because “he has background knowledge and has sat 4 times and is coming back to hear the case in August. He could have a look at it then”. SJ Hilder explained that because it’s Judge Smith’s order that he is seeking to appeal, all that Judge Smith could decide is whether or not to give permission to appeal. If he did, the appeal itself would then have to be heard by a different (Tier 2) judge. As she herself is a Tier 2 judge, “I could consider permission today and then, if necessary, the application to appeal”. There was also an interesting short exchange between them as to use of AI:
Judge: Did you use AI in writing this document? [his skeleton argument]
Brother: No.
Judge: Not at all?
Brother: Well, I used Google. Just Google.
Judge: So, you put documents into Google and asked questions?
Brother: Yes.
Judge: I think that is using AI.
The judge then explored (first with the brother, and then with counsel for the local authority and counsel for P) the four grounds on which the brother wanted to appeal the judgment.
- Procedural irregularities. First that the Local Authority evidence was not tested in the February hearing – but this was by agreement with all parties. Secondly, the solicitor from the firm representing him changed frequently and the only constant was a trainee solicitor – and Mazur showed (he said) that shouldn’t have happened. I assume – though it wasn’t explicitly stated – that the argument must have relied on the High Court decision in Mazur & Stuart v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) without reference to the fact that this judgment was later overturned in the Court of Appeal (CILEX & Ors. v. Mazur & Ors [2026] EWCA Civ 369). In any event, under questioning from the judge, it became clear that he was represented at the February hearing by a well-qualified Court of Protection barrister (despite feeling that the trainee solicitor did a “rushed job” of instructing him).
- The placement brochure provided at the February hearing didn’t paint an accurate picture of the placement as it would be experienced by P. Various issues were raised including locked doors, mixed-sex facilities and availability of staff on the floor on which P would live.
- The ‘best interests’ analysis at the February hearing didn’t properly engage with P’s circumstances – in particular the “irreplaceable relationships” P has with her family members.
- The proposed placement carries risks that don’t apply at home. A repeated concern related to P’s “lack of modesty awareness” and its consequences in a mixed-sex environment: “She doesn’t understand when a door should be closed or open … She doesn’t understand when she should be dressed or not dressed”. The Official Solicitor was particularly critical of this ground of appeal: “It was very clear before Judge Smith it was a mixed facility. One of issues that exercised the local authority, the Court and the OS was the fact that P is sharing a bedroom with her father while she’s at home and receiving personal care while her father was there…. [P’s brother] cannot now come before the court and say modesty is an issue when it’s been a matter of concern for most of the time proceedings have been before the court.”
In coming to her decision, the judge reminded herself of Rule 20.8 in the Court of Protection Rules 2017 which says that permission to appeal should be granted only where the court considers there is a real prospect of success or there is some other compelling reason why the appeal should be heard.
In terms of what makes a successful appeal, she turned to Court of Protection Rules 2017 Rule 20.14. “The appeal judge shall allow an appeal where the decision of the first instance judge was wrong, or unjust because of a serious procedural or other irregularity in the proceedings…”
She then went through each of the grounds of appeal.
On Ground 1 The judge was “not satisfied [it] is accurate or appropriate”.
She treated Ground 2 as a claim that the judge had heard (or seen) “misleading evidence” about the placement and pointed out that the parties had agreed not to call evidence, so she gave “no weight to that ground”.
Grounds 3 and 4 were described by both represented parties as reflecting a “wish to relitigate the case” – and that seems also to have been the perspective the judge took insofar as she drew attention to the agreed note of the judgment that showed Judge Smith had engaged with the pros and cons of P remaining in her family home versus moving to supported living, including recognising the importance of her family relationships and her attachment to the family home. She said, “there’s nothing new in what is expressed in this fourth ground that wasn’t already before the court in February” and read out some extracts from Judge Smith’s best interests analysis: “what does supported living offer that family does not… stimulating independent environment… opportunity to develop friendships … no risk of bedbugs or damp…. Possibility that it will cause her confusion … everything will be done to limit impact… She will still visit the day centre as before… the family will continue to meet with P to maintain relationships”. She concluded that the judge had considered these arguments and that P’s brother “simply does not agree with the decision the judge made”.
She ended by saying: “Therefore this court cannot come to any conclusion other than that the appeal has no real prospect of success. That is the end of your appeal process”.
When should P move to her new home – and what’s the ‘transition plan’?
Counsel for the local authority said they would look to carry out the move on Thursday (two days later). The judge explored with everyone how this would work in practice. As always, Senior Judge Hilder’s questions showed exemplary attention to detail in planning ahead as well as displaying her grasp of the material in the bundle.
Judge: P has been visiting the placement for some time, and she’s taken part in discussions about her room. I’ve seen photos of the very splendid orange walls she has chosen. Where is she today?
Counsel for LA: (after consulting with the social worker seated behind him) At the day centre.
Judge: What’s the status of the packing?
Counsel for LA: Some packing has been done and her belongings moved in already. The rest – there isn’t much – is to be done on the day of move.
Judge: Does she have daycare centre attendance tomorrow?
Counsel for LA: Yes
Judge: How does she get there?
Counsel for LA: She’s escorted
Judge: So the carer goes to her home and picks her up? Does she stay with her there?
Counsel for LA: No.
Judge: And on Thursday?
Counsel for LA: (after whispered conversation with social worker) She doesn’t go to the day centre. The usual carers arrive at her home and instead of taking her out for community activities they provide personal care …
At this point the judge suggests it makes more sense for the social worker to report direct – and he answers her questions.
Judge: She hasn’t yet slept overnight in this placement?
Social Worker: No
Judge: Has it been explained to her
Social Worker: Both the placement and the day centre have done social stories with her.
Judge: I’ve seen a lovely photo of her making the bed.
Social Worker: She actually got into it to try it out. And they’ve helped her put her clothes in the wardrobe.
Judge: When will she be able to actually be told about the move?
Social Worker: A good time to tell her would be tomorrow at the day centre.
Some discussion about contact between P and her family followed, and this seemed to raise some concerns for the judge. She was told that the new placement recommends “not too much contact with the family in the first two weeks”. She adjourned the hearing for 30 minutes to give everyone time to come up with an agreed transition plan.
When the hearing resumed, it was clear there was disagreement about who should take P from her home to the new placement on Thursday. The local authority view was that only the carers should be involved. The brother thinks only family members should be involved. The Official Solicitor suggested that carers and families could all be involved and travel at the same time (in two taxis).
Judge: And how would that work when they get there?
Counsel for OS: The family and carers would see her to her room and reassure P and settle her in.
Judge: I’m concerned that that many people would not settle her. They would unsettle her. It may be better if the carers take her and the family join later.
Counsel for OS: That could work. I am hoping the family can be positive about this new chapter – although it’s not been their view in the past – and that would assist P in not feeling torn about where she is.
Judge: And what basis do you have for promoting this good feeling.
Counsel for OS: She’ll see family and carers essentially working together to get her there.
Judge: And what if they’re not constructively working together?
Counsel for OS: Then it should be just carers.
Judge: And how are we going to know in advance? We have very long proceedings that have been contested… I’m concerned that just hoping family and carers will work together productively is maybe a little optimistic.
Counsel for OS: Yes maybe… I recognise [P’s brother] wants to be involved in the move… that would be a way of doing this…. But if that’s not acceptable to [P’s brother], then we are clear it should be the carers who take her.
Counsel for the LA: The option which has the least scope for difficulties and least scope for confusion is for it to be the carers who take her.
Judge: Who will arrange and fund the taxi?
Counsel for LA: The local authority.
Judge: And if they turn up at 10.30am – pick up bits and pieces and do personal care, what time would they be leaving the house?
Counsel for LA: About 11.45 or 12 o’clock.
Judge: What time is lunch at the placement?
Counsel for LA: 12.30 or 1pm
Judge: Is there anything planned for the afternoon?
Social Worker: Yes, the plan for the first day is dinner together, watching TV with other residents… Unpacking….
Judge: So, is there any reason why [P’s brother] and Dad couldn’t bring themselves to the placement at say 2.30 to help her unpack?
Counsel for the LA: It’s the recommendation of the placement is that family don’t attend for the first two weeks.
Judge: On what basis? Two weeks is way too long. There’s not been a 2-week period when she’s not seen her family.
Counsel for the LA: We have left it to the placement to decide what the arrangements should be.
Judge: In other words, you are giving to carers who don’t know P a very wide decisionmaking power. Ms Ahmed, have you had any input into this as P’s representative?
Counsel for LA/OS (not sure): mentions arrangements for video contact
Judge: Can she even use it as she’s non-verbal? I am very concerned that P would have no contact with her family for 2 weeks. I’m going to rise. I am going to invite you to have further discussion. I don’t see any basis at all for saying there shouldn’t be contact for 2 weeks.
Following another short adjournment, a transition plan involving more contact between P and P’s family was agreed – including a family visit on the afternoon of the day of her move, another visit the following week, and visits by P to her family home once a week subsequently.
The time already allocated for a hearing on 21st August was reduced from one day to two hours, starting at 2pm, and was repurposed to review how P’s move has gone.
The hearing closed with the judge saying to P’s brother: “I am expecting you to do your best to be as positive as you can, so P finds this transition as smooth as possible”.
Reflections
This may be a useful blog post for people trying to understand what’s involved in “appeal” hearings. An appeal is a formal request to a higher court (here, from a Tier 1 to a Tier 2 judge) to review and overturn a decision made by a lower court. It is not a retrial; rather, it is a process to examine whether the original judge made a serious error of law, applied facts incorrectly, or if there was a severe procedural injustice. Appeal judges rarely hear new witnesses or see new evidence. Instead, they review the previous judgment and legal arguments from the original hearing. An appeal will only be successful when there it’s clear that the original judge got the law wrong, made a decision that wasn’t supported by the evidence, or there was a serious mistake in the way the hearing was conducted which unfairly affected the outcome. Permission to appeal is generally required before a judge will hear the appeal itself: this is to filter out appeals with no chance of success, reserving judicial resources for cases where it’s possible that a genuine miscarriage of justice may have occurred. Many applications are from people who are simply unhappy with what the judge decided – which is not the same thing. You can read about another unsuccessful application for permission to appeal here: Permission to appeal refused: A procedural dead end. For more information about appeals from Court of Protection judgments, take a look at this very useful blog post, which includes information about successful appeals, and about alternatives to appeals: Appealing a Court of Protection judgment
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] In her very helpful short introduction to the case at the beginning of the hearing (none of the PD4B para.4.2(a)-(c) COPR 2017 documents having been prepared as per Gardner), SJ Hilder also mentioned that the case had been before the High Court back in 2005 and again in 2012 concerning a potential forced marriage. I’ve not been able to find any published judgments relating to this. I’m grateful to SJ Hilder for directing disclosure of the applicant’s position statement (to which they had no objections) and for disclosure of the approved order from this hearing.
Promoting Open Justice in the Court of Protection 