By Daniel Clark and Amanda Hill, 29th October 2026
Two siblings, AA and BB, have lived together almost all their lives and now reside in the same care home. However, one has been served with an eviction notice and there is therefore a risk that they’ll be separated. It now falls to the Court of Protection to consider where it is in the best interests of these two siblings to live and receive care.
It’s not often there is a court hearing with two protected parties. As we were both in London on the morning of Friday 11th September 2026, we decided to go along to this unusual in-person hearing before DJ Clarke at First Avenue House, concerning AA (COP 20005457) and BB (COP 20031247).
It proved to be an interesting hearing. AA’s case has been before the court for quite a while, but BB has more recently become a protected party and, as the cases are interlinked, the two cases are now being dealt with together. A family member (CC), with Lasting Power of Attorney for both siblings, was a Litigant in Person at this hearing.
The two siblings at the centre of this case have been very close all their lives, and were living together until Spring 2023, when AA had a number of falls and, after a long period in hospital, moved to a care home in Spring 2025. BB remained living at the flat, cared for by CC. But BB herself was admitted to hospital in Summer 2025 and was shortly after admitted to the same home as AA. Both have dementia and reduced mobility, and a number of other (different) health conditions. Therefore, their care needs are different.
In Winter 2025 the care home served an eviction notice on BB, on the basis that they are unable to meet her needs (it seems as a result of so-called challenging behaviour which, we heard during the hearing, has now since abated). This risks the siblings being permanently separated for the first time in a very long time.
The proceedings in respect of AA were pretty much concluded prior to the proceedings in respect of BB commencing. As the court and the parties have recognised that it is important to maintain the relationship between the two siblings – in whatever ways this might be possible – the proceedings in respect of AA were stayed rather than concluded. The Official Solicitor acts as their litigation friend but, as the best interests of each sibling may diverge at some stage, each is represented by a different legal team.
Another important issue that had been occupying time for two of the parties was the issue of funding for BB. The ICB (NHS West and North London ICB) had concluded that BB was ineligible for CHC funding and the local authority, London Borough of Haringey, had disputed this. But very shortly before the hearing the LA accepted funding responsibility for BB, and so would be funding both AA and BB. This was a key issue to resolve because the siblings are not living in a nursing home and if the ICB had funded BB, that would only have been if she was in a nursing home.
The court was now being asked to make directions about steps to be taken to enable decisions about residence and care. Due to the specific nature of the protected parties, we have disguised some details to prevent jigsaw identification, and have not reported other details. In this short blog, we would like to draw out some key points.
Gardner documents and open justice
Following the Court of Appeal’s decision in Re Gardner (Deceased) [2026] EWCA Civ 640, observers can request three documents (listed at PD4B para.4.2(a)-(c) COPR 2017), which are now commonly referred to as the “Gardner Documents”. These are the case summary, a chronology of relevant events, and the issues for determination at the hearing. Before the hearing, when we were at the reception desk of First Avenue House, we asked for a message to be passed to the judge asking that we be provided with the Gardner documents. We request these a lot of the time, but rarely receive them – in fact, Daniel had never received them.
The issue was raised by the judge at the start of the hearing, largely for the benefit of the LIP. The judge explained that Court of Protection hearings are private hearings, but they can be in public (subject to a Transparency Order). She continued that there is recent case law to “promote open justice and transparency” and that certain documents are usually provided to observers. The judge stated that the professional parties do not object to us receiving them but, saying, addressing CC, that she understands that each of them, AA, BB, and CC “jealously guard your privacy in relation to your personal matters. And I don’t mean that in a negative way”.
After a query from CC as to what the judge meant by observers, the judge went on to say that, “I don’t usually inquire why observers are here and they are usually entitled to be. The two observers are both members of the Open Justice Court of Protection Project which seeks to promote open justice within the Court of Protection. And they do blog but they do so responsibly. So, they report on certain cases but they do so in terms of the Transparency Order … and are no more identifiable than in the court list. My understanding from seeing their blog posts is that their reporting is responsible and has been recognised as such”.
Having heard this, CC had no objection to us receiving the documents, provided that her relatives were only referred to by their initials during the hearing. The judge said they would try to keep to this, but assured CC again that we were covered by the Transparency Orders.
We were pleasantly surprised when the judge then asked her clerk to hand us hard copies of the three documents, which had obviously been printed in advance of the hearing. Unlike position statements, these three documents can (at least in this case) be read at a glance as well as in depth. This meant, complemented with a brief case summary from the judge, we could follow the hearing well. For example when, during the course of submissions, an event in July 2025 was referenced, we could cast our eye over the chronology to see an outline of what happened.
Our understanding of this hearing was greatly enhanced by receiving the ‘Gardner documents’ at the start of the hearing. It meant that we understood quite a lot of the background of the case, and also meant that time didn’t need to be taken up by the judge giving a lengthy opening summary. In other words, the Gardner documents were good for observers and good for court time.
One downside of not having position statements is that we can’t be confident of the names of the barristers who acted in this case (position statements contain the barrister’s name at the bottom of the final page). Furthermore, as there was a lot of discussion before the hearing and the adjournment, we didn’t have an opportunity to ask.
Parties
The London Borough of Haringey is the applicant in respect of AA, and the first respondent in respect of BB. They were represented at this hearing by a legal team we weren’t able to identify.
AA is the respondent in CoP 20005457, and was represented by another legal team we were unable to identify.
BB is the applicant in CoP 20031247, and was represented by a Mr O’Brien.
CC is a respondent in both sets of proceedings, and represents herself.
The NHS West and North London ICB was a respondent in BB’s case, though we think they have now been discharged as a party. The ICB was represented by someone whose name sounded like Ms Stanley, though we may have misheard this.
The importance of love and the risks of being separated
All the parties in the courtroom and the Judge agreed that the siblings should stay living in the same place if at all possible. BB’s legal representative submitted that as the issue of who paid for BB’s care had been resolved, it was in the best interest of both protected parties to stay together. He stated that the impact for BB of being separated from their sibling was likely to be so emotionally detrimental that it would outweigh any clinical benefit achieved by moving her to a nursing home if that move entailed being separated from the other sibling. Towards the end of the hearing, the judge ordered various risk assessments to be carried out, one of which was the risks to the siblings of being separated. We haven’t seen this before.
A family member as Litigant in Person
The Litigant in Person (LIP) cut a lone figure at the end of the front row dominated by legal professionals. There was a lawyer for the Local Authority, the London Borough of Haringey, another one for NHS West and North London ICB, and each protected party had their own barrister. As is usual, there were solicitors sitting behind them, as well as a social worker for one of the siblings (the social worker for the other sibling did not attend for – wholly understandable – personal reasons).
CC told the judge at the start that she felt disadvantaged in light of all the legal professionals involved: “I have to struggle with this by myself…I’m having no help”.
The judge commented on that towards the end of the hearing, after CC had left as she wasn’t feeling well. She acknowledged that CC was struggling with the volume of people in the courtroom and she was thankful for the efforts of the legal professionals to help mitigate that, and their efforts “behind the scenes” too.
Potential harm to protected parties because of the court process
It transpired that what was going on behind the scenes was an important issue. As both the protected parties are in the same care home, and of course have their own legal representatives, the care home is receiving a lot of paperwork about the Court of Protection cases. And visits from different people.
CC argued that this could cause harm, as the care home is not very big and one person is having to deal with all the paperwork. She worried that this would be an additional factor that the home would take account of in deciding whether to enforce the eviction notice. This raises the possibility of the Court of Protection process itself harming a protected party, if it resulted in a person being separated from their sibling.
The judge summarised her concerns as such: “if one of the issues is that the care home is unwilling to revoke the notice because they are being bombarded with correspondence, this is something the parties need to address”. During an adjournment so she could read some documentation, she directed the parties to discuss what could be done about this.
Dispute between two public bodies about funding for BB.
If the ICB had accepted responsibility for funding BB’s care, the siblings would have to be separated as funding for BB would only have been in a nursing home. The ICB’s representative confirmed that was the decision of the assistant director of the ICB. It is outside the scope of this blog to go further into the issue of public bodies arguing about who pays for a person’s residence and care, save to point out that the funding is all being paid for by the public purse, otherwise known as the taxpayer. This sort of dispute illustrates the blurred distinction between the NHS (Health) and Adult Social Care. As a result of the local authority becoming responsible for BB’s funding, it was agreed by all parties that the ICB could be discharged as a party to BB’s case.
Final reflections
This hearing was ultimately about the court trying its best to find a way of two siblings being able to stay together. But ultimately the decision is one for the care home’s new owners, who have served the eviction notice on BB. Let’s hope that a way can be found for them not to be separated after many years of being with each other. And that the very proceedings which are working to keep them together are not a factor in the eviction notice being enforced.
Daniel Clark is a Research Fellow in Open Justice at the University of Sussex. His research concerns public access to, and understanding of, courts and tribunals in England and Wales. He has a specific focus on applications relating to contempt of court, and in particular those that arise in the Court of Protection. Daniel is also a core team member of the Open Justice Court of Protection Project. He can be contacted on LinkedIn.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She can be contacted on LinkedIn (here).
