By Celia Kitzinger, 11th November 2026
A young woman (“AB”), diagnosed with autism and “learning difficulties”,[1] is 35 weeks pregnant.
It is “beyond doubt” (the judge’s words) that she lacks capacity to make her own decisions about the delivery of her baby. The judge made the formal s.15 declarations to that effect.
Doctors say that it’s in her best interests to have a caesarean section under general anaesthetic. Nobody disagrees. And, as the judge observed, “to the extent she’s able to express any opinion, that appears to be what she has a preference for herself”.
So, the court in this case did not have to deal with any dispute about either capacity or best interests.
Instead, the judge looked more broadly at AB’s pregnancy and birth plan, making suggestions and giving directions designed to improve AB’s experience of the birth and her quality of life.
I am sometimes critical of the Court of Protection and the harm it can cause to people caught up in it. But in this case, I am certain that the court has helped the young woman at the centre of the proceedings – most especially by redirecting attention from the mechanics of restraint to the practical steps that might make restraint unnecessary.
This is the Court of Protection at its best.
The hearing
The Open Justice Court of Protection Project has covered many cases concerning caesarean sections. This case stands out for having been brought before the court relatively early, at 35 weeks of pregnancy[2].
The difference of just a week or two (compared with the urgent hearings in some other cases, involving women much closer to their due dates) seemed significant. I could see how that additional time opened up opportunities for more consultation about best interests and, importantly, more planning ahead.
The judge, Ms Victoria Butler-Cole KC, sitting (remotely) in the Royal Courts of Justice on 10th November 2026, raised three key issues during the one-hour directions hearing:
1. How the need for physical restraint of AB can be avoided or minimised
2. Safeguarding arrangements for AB, who is pregnant but has no capacity to consent to engage in sexual relations
3. Whether AB may be deprived of her liberty in hospital and entitled to protections under Article 5.
The applicant, Sheffield Teaching Hospital NHS Foundation Trust, was represented by Sophie Hurst of Kings Chambers, instructed by Hill Dickinson.
The protected party (and first respondent), AB, was represented by David Lawson of Serjeants’ Inn, instructed by her litigation friend the Official Solicitor
The second respondent, Sheffield City Council, was represented by Andrew Lord of St John’s Buildings.
There had apparently been a dispute between the two public bodies – the NHS Trust and the local authority – about who was responsible for AB’s pre- and post-operative care. The Official Solicitor reported that the Trust now accepted responsibility. The local authority was seeking to be discharged as a party. The judge, however, said: “for now, keep things as they are, please”, while acknowledging that the local authority might not need to attend the final hearing.
1. From a “Restraint Plan” to an “Avoiding Restraint Plan”
The proposed birth plan before the court needed “further work”, said counsel for the applicant Trust, “to include a specific restraint plan” (her emphasis). I don’t know what kind of restraint was under contemplation.
At what counsel described as “productive pre-hearing discussions”, the parties had considered “how that information [about the restraint that might be required and how it would be delivered] can be obtained and presented to the court”[3].
The local authority would “file statements and exhibits concerning the nature, type and duration of any restraint to be used in hospital, and how, and in what circumstances, it’s delivered in the community.” Counsel explained there was no domiciliary care provider who could assist with restraint in a hospital setting and that enquiries were being made about a third-party agency. Nobody considered it appropriate for hospital security staff to deliver restraint, but they were the only people in the hospital with the appropriate training.
The draft order proposed that a finalised Birth Plan and Restraint Plan should be filed with the court by 16th November.
“Let me pause you there”, said the judge. “I have a number of questions”.
The judge shifted the focus from the mechanics of restraining AB to the much more fundamental question of how to organise her care and environment so that restraint is less likely to be needed at all.
“There is a lot of focus on the restraint plan,” the judge continued. “It would be more helpful to think here about how restraint could be avoided. The bulk of the plan should be about avoiding ever getting into that situation.”
The judge pointed out that AB is not someone who is regularly subjected to restraint (the last time was five months ago): “A lot of what might be called her ‘challenging behaviour’ can be dealt with without restraint. For example, she is someone who finds transitions difficult. She puts herself on the floor. But that doesn’t require restraint. It requires giving her some space and supporting her to get ready for another activity“.
Input from people who know AB well (her parents and staff at her school) would be crucial in understanding how to move forward with surgery (and with pre- and post-operative care) in a way that causes least distress to AB.
Involving AB’s parents
I got the impression (it was never explicitly stated) that AB lives at home with her mother, and that her father lives elsewhere, but also has regular contact with her. Neither parent was in court.
The judge had asked about their absence right at the beginning of the hearing and was told that AB’s mother had been notified (I think the father had not), and that the mother does want to be involved in the court proceedings, but was unable to participate in today’s hearing due to “child care arrangements” and because she has noisy building work going on in her home at the moment. The judge asked for both parents to be properly informed about how they could become parties – and since neither currently has legal representation and like most family members will probably be involved either as interested persons or, if they become parties, as litigants in person, she specifically asked counsel for the local authority to “put in a link to the COP 5 form, so [the father] knows what form it is he needs to fill in, and send the email address he has to send it to, because he won’t know what filing it means”.
Making the hospital experience as positive as possible
The judge pointed out the possibility that AB might go into labour before the next hearing, listed for 10 days time. Rather than requiring written statements about how AB could be restrained, she suggested that the best way forward might be a meeting involving family members, school staff, and professionals.
The purpose of the meeting, she explained, would be to work out “not just what form of physical restraint might be used, but how are you going to make the period of time that she’s going to be in hospital as unlikely as possible to cause her distress. It may not be possible to avoid restraint altogether – if she’s pulling out stitches for example – but instead of focussing on who is going to restrain her if that’s needed, can you think about making it an experience that’s as pleasant as possible for her.“
She suggested several practical possibilities:
“Are there members of staff at the school who might be able to visit her in hospital so she’s able to spend time with people she already knows rather than strangers? What information is going to be given to her in advance of the date of the surgery – would social stories be useful? Or Easy Read? Would a picture of the place she’ll be in the hospital benefit her or not?“
She wanted everyone involved to meet “in the same room – or virtual room” to address these questions. And she was clear that practical obstacles to AB’s mother’s participation should be overcome: “If someone from the local authority needs to provide childcare for other children, or a carer for AB, so that her mother can participate in the meeting, then that needs to happen. As soon as possible“.
It turned out that a ‘professionals meeting’ had already been planned for Friday, involving the school, the hospital and the local authority. Counsel for the local authority said that AB’s mother “is capable of being invited to that, and we hear your point with respect to childcare etcetera”.
The judge immediately suggested “re-purposing” the meeting, to include the family and the Official Solicitor. She asked for this to be recorded in a recital at the beginning of her order.
“The mother, and perhaps the father too, should be invited to the meeting on Friday. The local authority has agreed to look into whatever is needed to enable the mother to attend it. The meeting will explore what I’m going to call the “Avoiding Restraint Plan”.
The plan would need to consider the circumstances in which restraint might be necessary – for example, where something AB was doing put her physical health at risk. But the judge wanted the meeting to focus much more broadly on how to avoid distress and reduce the likelihood of restraint being needed: “If she’s in hospital a few days later and wants to go outside, I would hope someone would be able to assist her. One of the main triggers for ‘challenging behaviour’ is being told she can’t do the thing she wants to do immediately. So that needs to be looked at – how to make the hospital environment as tolerable as possible. If she’s going to be stuck here for a number of days with nothing to do, that will cause problems for her“.
She also wanted the meeting to draw on the mother’s knowledge of AB’s communication: “Ask her mother how AB communicates pain, and how people should be responding to that. It would be helpful to have something from her mother about understanding whether there are non-verbal signs, rather than leaving that to hospital staff to figure out at the time”.
Other questions included what AB would be told about the surgery in advance, who would communicate that information to her, and how it would be presented.
And the planning needed to extend beyond the hospital stay: “Find out whether, when she returns home, her mother might need help in the home. The advice following that sort of surgery is to sit around and do not very much, and AB may not want to do that. So, the meeting is to do all of that.”
2. Safeguarding
The judge turned to the safeguarding implications of AB’s pregnancy.
It was “highly likely”, she said, “that AB doesn’t have capacity to give consent to sexual relations, so the act that caused her to become pregnant was a criminal offence.”[4]
She asked the local authority: “Has there been any change to her care arrangements, or are things just carrying on as they were?”
Counsel for the local authority said they had “not implemented anything different, and we don’t understand there’s anything different that mother has implemented”.
The judge found this “slightly surprising, given that we have no idea of the circumstances under which she became pregnant”.
Counsel responded “we don’t have locus in the family home”, by which I understood him to mean that the local authority does not consider itself to have the legal authority to intervene in the arrangements within AB’s family home.
The judge challenged this: “if AB lacks capacity to make decisions about contact, care arrangements and sex, the local authority does have the power to decide to place someone with her all the time to make sure she’s not sexually assaulted”.
“I understand that power”, counsel replied: “I simply say that my understanding is that that power has not been exercised. I can take instructions, but that’s my understanding”.
The exchange left an important question unanswered: what safeguarding arrangements were actually in place to protect AB from sexual abuse?
The judge also raised the question of contraception with the Trust. The Trust’s position was that “AB shouldn’t require contraception because she lacks capacity to engage in sexual relations”. It indicated that care planning in relation to contraception would be informed by “the outcome of police investigation and the local authority’s own safeguarding investigation”.
3. Deprivation of liberty
The Supreme Court decision in AGNI[5] has fundamentally changed the way ‘deprivation of liberty’ is understood in the Court of Protection. The parties had not yet addressed how the decision applies to AB’s circumstances, but proposed to do so at the final hearing. This will presumably include consideration of the fact that she’s only 17 (so the ordinary DOLS authorisation process doesn’t apply to her anyway).
Counsel for the Official Solicitor referred to R (Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 – a case described in AGNI as one that avoids or narrows the effect of the ‘acid test’ (§114, AGNI). It concerned a woman who died in intensive care following life-saving medical treatment. The Court of Appeal held that the restrictions on her liberty arising from her medical condition and the treatment she received did not, in those circumstances, amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR).
Counsel suggested that whether court authorisation of a deprivation of liberty would be required in AB’s case would depend on the extent of the arrangements and restrictions put in place. He said it would be “proper” for any such application to come before the court.
Reflections
It’s a distressing case, and I appreciate the determined and practical approach of Ms Butler-Cole KC in trying to ensure that this young woman’s best interests are properly addressed. One might wish, of course, that this were possible without court involvement.
I was also alert to the fact that judicial suggestions and encouragement do not amount to directions or orders, and that there’s a limit to what a judge can order public bodies to do. (I noted that much of what the judge said was recorded in a recital and not in the order itself.)
The judge’s approach to restraint is particularly welcome. Rather than starting with the question of how AB might be restrained, she insisted that thought be given first to how to avoid putting AB in situations where restraint might become necessary.
This is consistent with established good practice.
The Restraint Reduction Network, a key charity working in this area puts it clearly: “In order for any action to be considered proportionate and least restrictive, all realistic, preventative options must first be exhausted”.
The Care Quality Commission (CQC) has also recognised that restrictive practices can be a consequence of failures in person-centred care planning, and that the right person-centred care can renders them unnecessary.[6]
The Challenging Behaviour Foundation gives examples of concrete strategies that can be adopted to avoid or reduce the need for restraint.
What particularly struck me about this hearing was the judge’s insistence that the planning should begin with AB as an individual: her preferences, her communication, the things that cause her distress, the people she knows and trusts, and what might make an unfamiliar hospital environment more tolerable for her. That is what best interests consideration in general, and an an “Avoiding Restraint” Plan in particular, should look like.
The final hearing is listed for 10.30am on 20th November 2026, in advance of an anticipated caesarean section on 24th November 2026. I hope that the work initiated at this hearing will lay the groundwork for making a real difference to AB’s experience going forward.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project and an Honorary Professor in the School of Law and Politics at Cardiff University. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
End notes
[1] These two diagnoses were provided in the Case Summary for observers, prepared by Ms Hurst, counsel of the applicant Trust. The Case Summary consists of just four sentences. It refers to AB as a “girl” who “lacks capacity to make decisions about the delivery of her baby” and says that the Court “is being asked to list a hearing for the Court to consider a care plan for the delivery”. I don’t know whether the diagnoses have been accurately reported in the Case Summary (no diagnoses were mentioned in the course of the hearing). I am, in particular, not wholly confident that “learning difficulties” is the correct terminology (see Mencap’s explanation of the difference between learning disability and learning difficulties: https://www.mencap.org.uk/easyread/what-difference-between-learning-disability-and-learning-difficulty). There is also an apparent discrepancy concerning capacity. The Case Summary states that AB “lacks capacity”, but the Transparency Order made by Theis J the previous day (9th November 2026) explicitly states that “the issues in this case relate to whether AB lacks capacity to make decisions about her obstetric care and treatment” [my emphasis]. In other words, the issue of AB’s capacity had not yet been determined, and was for the judge to decide at the hearing (as she did). There is a further discrepancy about the scope of the proceedings. The Case Summary refers only to “a care plan for the delivery”, whereas Theis J specifically identifies “postnatal care” as one of the issues before the court. Where the Case Summary for observers (which I understand was prepared rather hurriedly) differs from the information in the Transparency Order or from what I heard in court, I have preferred the latter two sources, and that is reflected in this blog post. Neither of the other two documents listed at Practice Direction 4B para.4.2(a)-(c) COPR 2017 which “must” (it says) be provided to the court (and which the Court of Appeal suggests (in Re Gardner (Deceased) [2026] EWCA Civ 640) can be disclosed to observers, had been prepared – for which the applicant Trust apologised. Only one Position Statement (the Official Solicitor’s) had been submitted to the court: as is customary, counsel for the Official Solicitor declined to disclose it and suggested that “the paragraph that Ms Hurst refers to is probably a sufficient account of the proceedings”. (Clearly, it wasn’t!) I am grateful to the judge for requesting an oral case summary at the start of the hearing, and for offering observers (at the end of the hearing) the opportunity to raise any problems of understanding: since I had not yet received the Case Summary (it was sent to me at 11.31 after the hearing had concluded), I was not at that point in a position to clarify either the diagnosis or the apparent discrepancies concerning the issues before the court. I have requested the approved Order as provided for by COP Rule 5.9 and will correct any obvious errors in this blog post on receipt of it.
[2] See, for example: “An urgent caesarean application in a disturbing case” (also decided by Ms Butler-Cole KC) concerning a woman with catatonic schizophrenia who was discovered to be pregnant after she returned from a visit to Somalia with her grandmother, also raising safeguarding concerns. This case was heard six days before her expected due date. In another case, too, heard by Moor J, the hearing was less than a week before the woman’s due date: “’The baby has to come out’: Court-authorised caesarean when subject-matter and litigation capacity are disputed”). Other cases include one for which Ms Butler-Cole KC made directions and Cusworth J made the final orders, concerning a 37- week pregnant woman detained under the Mental Health Act (“Caesarean: A directions hearing” and “Court-authorised caesarean with chemical and physical restraint if required: A 14-minute final hearing”) a 37-weeks pregnant case before Moor J (“Elective caesarean in her best interests”), and three 36-weeks pregnant cases – before Morgan J (“Court authorised caesarean section for a mother with sickle cell disease who her baby to ‘see her face first’”), Cohen J (“Capacity and elective caesarean”) and Hayden J (“C-section and general anaesthesia against her wishes”).
[3] All quotations purporting to represent what was said at the hearing are based on my contemporaneous touch-typed notes and are as accurate as I can make them, but unlikely to be verbatim.
[4] My own understanding of the Sexual Offences Act 2003 is that lack of capacity to engage in sexual relations does not, by itself, establish that a criminal offence was committed – but perhaps the judge is sure from her much more extensive knowledge of this case that it must have been under the particular circumstances.
[5] A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16
[6] “Restrictive practice – a failure of person-centred care planning”
