I was a Litigant in Person in my dad’s Court of Protection case from February 2024 until his death in August 2024. He died in the care home it was deemed to be in his best interests to be forcibly removed to, from his own home – despite his wishes and feelings to the contrary. In those five months, Dad had contact with his family only to the extent allowed by what we considered an unnecessary, disproportionate and draconian contact plan. Our experience of the Court of Protection (CoP) proceedings and the gagging effect of the Transparency Order (TO) – for Dad, and me and my sister as respondents – piqued my interest in the court and the Mental Capacity Act 2005. During the last fourteen months I have observed CoP hearings regularly.
On Monday 17th March 2025, I started a 20 day ‘study’ of CoP hearings at the Cardiff Civil and Family Justice Centre. I felt much more confident than when I’d nervously observed my first few CoP hearings (which I blogged – under the pseudonym “Jean Louise” – about A newly addicted observer’s reflections.)
I realise that despite how much I have learned, through the approximately sixty hearings I have observed, I still feel a sense of trepidation when preparing to observe, and observing, a hearing. I set out equipped with enthusiasm, preparedness (including, like a kid on the first day of term, new pens and notepad). I even made a spreadsheet.
I do find that observing hearings can be quite a dizzying affair: there are so many courts to choose from when scanning listings the evening before, and often several choices on the ‘menu’ of each. Then there’s all the hearings that get vacated on the day, or those that you don’t get to observe despite your timely request, which means you end up selecting a different hearing from your ‘back up’ list and joining a hearing you know absolutely nothing about.
My decision to focus on a single court for twenty days helped me feel more grounded, able to concentrate on the rhythm and flow of the court. Here is a factual summary of what I observed during the four weeks, and some reflections.
Health warning: unless you’re interested in the details of how transparency does and doesn’t work, this isn’t a particularly interesting blog. Teaser: it gets a bit more interesting at the end, with my account of the final, 12-minute-long hearing I observed.
Week 1
Monday 17th March 2025
Three hearings were listed. I emailed the Cardiff address provided on the listings, requesting to observe one or more of them (two were listed for the same time), and pointing out that the listing didn’t name the public bodies represented in the hearings. On the matter of public bodies in the listing I was told that the matter is: ‘with our development team, and we are awaiting their directions’. In response to my observer request I was told: ‘The 3 hearings that were listed today have now been vacated’. I asked whether, and if so when, the hearings were re-listed, and whether it would be possible for them to share information about the public bodies involved, and if possible let me have the Transparency Orders. They didn’t reply.
Tuesday 18th March 2025
Again, three hearings were listed, albeit with two of them starting at the same time before the same judge (who was ‘sitting in retirement’). None of them gave the name of the public bodies involved in the hearings. I asked Cardiff staff who the applicant/respondent public bodies were, and which of the three I would be able to observe. I was sent a link and Transparency Order (which included P’s double-barreled surname in the file name) for the 11am hearing and was informed that one of the other two hearings had been vacated, and the other was ‘in person’. The TO used the initials “JJW” for the applicant protected party (confirming for me that it was indeed his name that had been used in the file name) and named the respondent as Swindon CC. At 10.13am I received notification from Cardiff that, ‘Judge has vacated the above matter from his list this morning’. So, two days into my study and still no observable hearing – but some concerns about transparency. First that P’s Article 8 privacy rights had been breached by including his name (entirely unnecessarily) in the file name of the Transparency Order, and second that, although the judge had not prohibited naming the public body, the name of the public body had not been included in the public listing.
Wednesday 19th March 2025
Only one hearing was listed; COP 12641952-09 at 10.30am before HHJ Edwards. I received the link and TO (again with P’s surname in the file name) at 7.48am. I noted again, that as with the hearing described the previous day, there was no prohibition in the TO on naming the applicant public body (Ceredigion County Council) but it had not in fact been named in the list.
I joined the link and was looking forward to the opportunity to observe the hearing. But then, before the judge joined, I was grilled about why I was observing by a fairly assertive woman, who said, ‘these are supposed to be closed hearings. This has been an issue before’. I introduced myself, briefly explaining why I was there (I had a right to be at a hearing listed as “public”), and asked whether she was objecting to my presence in her role as a legal representative or as a family member of P. She said she was P’s mum.
Had she been a legal representative, I would undoubtedly have stood firm and argued my position before the judge (the right to stay and observe, unless they really were ‘closed proceedings’ in the legal sense, rather than layperson’s sense, as I suspect P’s mum may have used the term), but I had a moral dilemma in the moment. I said I would remove myself from the hearing to avoid the judge’s investment of hearing time on the matter which perhaps may come at the expense of more important issues for P and his mum. I reiterated that I was leaving out of respect for the requested privacy of P and his family, not because I saw any further reason for me not to observe. I suggested it would be very helpful if in future hearings they could clarify the issue of whether or not the hearings were actually ‘closed’ – or at least “private” – as P’s mum contended.
I was torn in the moment about what to do, and I know some people would have stayed in the hearing unless or until they were asked to leave by the judge (quite rightly in my opinion, as the concept of open justice demands it), but my compassion for P’s family led me to make what I felt was the right choice. As with all of the moral dilemmas I’ve encountered in my life, I’ve later wondered how much more interesting, and fun, life may have been had I made a different choice. I know from my own experience as a Litigant in Person in Dad’s CoP proceedings that the Article 8 (right to privacy) v Article 10 (right to freedom of expression) dilemma exists not just for the court to grapple with, but often for the family members who become involved in what are usually unwelcome and extremely emotional proceedings. As I left the hearing before the judge arrived, this doesn’t count as an observation on my spreadsheet.
Thursday 20th March 2025
There were no listings for Cardiff. I had the day off.
Friday 21st March 2025
Again, no listings for Cardiff. A week into the study and I still hadn’t observed a hearing. I did some gardening and went to the pub, suspecting this ‘job’ was going to be much easier than I’d assumed.
Week 2
Monday 24th March 2025
Only one hearing was listed (COP 20007012), at 3pm before DJ Bayouni. It concerned authorizing a DoLS in relation to care and residence. I received the link and Transparency Order, which again anonymised P with initials on the face of the TO and prohibited identification of P in the body of the Order, but included P’s surname in the file name. Unusually, the public bodies were anonymised on the face of the TO too. The hearing, which I’m not going to detail here, concerned an 80-year-old P who wants to go home but her son & granddaughter live there. There was also a discussion on the need for a deputy to be appointed. I emailed the court after the short hearing: ‘I notice the two public bodies were anonymised in the listing and in the header of the transparency order, but that there is no prohibition on naming them in the body of the order (in para 6). Please could you let me know which Health Board and Local Authority are the respondents in this case.’ I didn’t receive a reply. Another hearing has been scheduled for 22nd May 2025 which I hope I’ll be able to observe and at that hearing I will expect to be able to report back on the case, including the names of the public bodies. On the bright side, a week into my Cardiff study and I had finally observed a hearing!
Tuesday 25th March 2025
Again, only one hearing was listed: COP 12446297. I requested a link the evening before, but received an email at 8.13am on the morning, ‘HHJ Muzaffer has approved an order this morning that vacates today’s hearing, so it will not be going ahead’.
Wednesday 26th March 2025
There were no listings for Cardiff. I had the day off.
Thursday 27th March 2025
There were no listings for Cardiff. I had another day off.
Friday 28th March 2025
There were no listings for Cardiff. I had yet another day off.
Week 3
Over the weekend my attention had been alerted, by the Open Justice Court of Protection Project, to the fact that there is sometimes a mistake in sending listings to Courtel/Courtserve, so that CoP hearings appear in the Daily Cause List (DCL) of a court, and not in the CoP list. It turned out this had happened with three cases listed for Monday 31st March 2025 at Cardiff. (For the remaining two weeks of my study I checked the DCL as well as the CoP list, and this didn’t happen again.)
Monday 31st March 2025
The three listings on the DCL list, all before HHJ Porter-Bryant at 10am, 2pm and 3pm were shown as ‘restricted’. They gave no information about the parties involved in the hearing – so no information about the applicant/respondent public bodies – and no information about the issues before the court. I had plans for the afternoon, so I was only able to request a link to the first one: COP 13290314. I received the TO and found that, yet again, there was no prohibition on naming the public body (Swansea Bay University Health Board) – but it hadn’t been named in the lists.
This was an interesting case concerning a young person, which I observed along with a member of the Open Justice Court of Protection Project. I won’t describe the hearing here, partly because it may well be the subject of a future blog.
Tuesday 1st April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had the day off.
Wednesday 2nd April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had another day off.
Thursday 3rd April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had yet another day off.
Friday 4th April 2025
Finally, after three days with nothing, a listing! Just one, for an 11am hearing before His Honour Porter-Bryant: COP 20012119. As usual, the list didn’t name the applicant/respondent public body. I received the link along with TO (which anonymised P with initials on the face of it and in the file name – progress! – though there was no judge’s name on the order). The TO showed the applicant as JD (by his proposed Litigation Friend) and the respondent as Neath Port Talbot County Borough Council and there was no prohibition on naming the public body, which again causes me to wonder why the name of the public body hadn’t been published in the list.
Then, at 11am I received an email: ‘Please be advised that the below hearing has now been VACATED’. Another one bites the dust.
Week 4
The final week of the study! With still with only two observations under my belt, I hoped for a busy week.
Monday 7th April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had the day off.
Tuesday 8th April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had another day off.
Wednesday 9th April 2025
There were no listings for Cardiff (either on CoP list or DCL). I had yet another day off.
Thursday 10th April 2025
Finally, another hearing, again the day’s only hearing, at 3pm before District Judge Bayoumi. COP 1214515t[1].
I received the TO, again with P’s surname used in the file name. Again I noted that the TO does not prohibit naming the public body, but the public body is not named in the list.
The was the shortest, rarest and potentially most interesting hearing I’ve observed. I have no idea who the LA in this case was – the TO only showed the initials of the applicant party, and it may not even have been a LA, though I assumed it was because it was about contact. Below is a close summary of the exchange (not to be taken as verbatim). It started at 3.04pm.
Judge: Good afternoon Miss Minton and Miss Newport. I have read the 61-page hearing bundle and your Position Statements. Is my understanding correct that all parties agree with the conclusions drawn by Miss Lock, that (P) has the capacity to decide to see Mr D, his father?
Counsel for the LA (hard to hear, it seemed partly due to court acoustics, and partly due to her muffled, almost sheepish replies): ….he’s a vulnerable young man
Judge: If he has capacity, I have no jurisdiction. I’m satisfied reading the reports of Miss Lock that it’s abundantly clear (P) has capacity to make these decisions. Therefore, your application is simply dismissed.
Counsel for the LA (inaudible):…..home….
Judge: These are not Children Act proceedings. We’re nowhere near that territory.
Counsel for the LA: No Maam.
Judge: As difficult as it may be for you to accept Miss Minton. Miss Newport?
Counsel for P (again hard to hear, due to court acoustics rather than any sense of sheepishness): .. The application should be dismissed…. we are nowhere near SA (probably a reference to In the Matter of SA [2005] EWHC 2942 (Fam))…. There’s no suggestion of influence…. what’s been achieved… it should be dismissed.…(P) has capacity… he has autonomy.
Judge: Did the applicant see the previous assessment?
Counsel for the LA: No
P’s Dad: I want to see him. It’s been prevented by (P’s ?) mother.
Judge: There’s no evidence. Even if ED (P’s father or mother?) influenced P, unless the threshold is met for a Section 9 judge that’s the end of the matter. P has capacity to decide on contact with his father. The court is satisfied it has no jurisdiction. The application is dismissed. (To Counsel for P) You’re not seeking an order for costs?
Counsel for P: No, but it would be a shot across the bow if they came back again with another application. A recital should be added to the order about P having autonomy and clear wishes and feelings which are to be respected.
Counsel for the LA: …. just who he spends time with….
Judge (to Counsel for the LA): Do you object to the inclusion of such a recital?
Counsel for the LA: There’s no need to include it.
Judge: It may provide (P and his father) some reassurance. Why shouldn’t it be included?
Counsel for the LA: The content is implied from the previous recital and doesn’t need it.
Judge: It’s a neutral position. It will be reflected in a recital. Please file a new order with me by the weekend. Good afternoon.
It was 3.16pm, the hearing had lasted only 12 minutes but had been eye-opening. I began to wonder how many such evidently problematic applications are generated in the context of ongoing Court of Protection proceedings.
Friday 11th April 2025
The last day of the study. Again, only one hearing was listed, yet again with public body / bodies not in the listing: COP 14234112 at 10am before DJ Morgan. I didn’t receive a TO but received an email at 8.56am to say that the hearing had been vacated. I subsequently requested the TO, but didn’t receive a reply. This ended the four-week study on a bit of a damp-squib, as it had started.
Reflections: The challenges of transparency
There were 15 hearings listed for Cardiff over the course of these 20 days. Of these, 8 were vacated (I have no way of knowing whether the one in person on Day 2, or the two hearings on the afternoon of Day 11, were vacated or not). The vacation rate is therefore a figure between 53% and 73%. There is an excellent blog (here) which explores the various reasons for hearings being vacated (and of course no one would want to add the cost of an unnecessary hearing), but the high percentage of on-the-day vacations in this study did surprise and concern me.
Despite my best efforts, I only managed to observe 3 hearings, and I received 6 Transparency Orders.
Not one of the 15 hearings listed for Cardiff over these 20 days gave the names of the applicant/respondent public bodies, yet not one of the Transparency Orders I received prohibited publication of the name of a public body. It has been difficult or impossible to get information about the names of the public bodies involved – staff haven’t replied to my emails requesting this information. (Also one of the 6 TOs does not give the name of the judge who made it!)
While protecting the names of public bodies (and a judge) from public scrutiny, the privacy of the protected party was jeopardized repeatedly. All six of the Transparency Orders I was sent prohibited publication of P’s name, but four of the six used P’s surname as part of the file name for the Order itself (including one that P’s mother claimed – probably wrongly – was a “closed” hearing!).
I had hoped that after four weeks of cajoling, I would be able to report that ‘Cardiff is now routinely including the names of the public bodies on their listings’, but sadly, despite my request to several members of staff during these four weeks, Cardiff are still not including the public bodies in the listing.
As the general public, and as taxpayers who are funding much of the Court of Protection’s costs, we have a legitimate expectation that these public bodies (who, unlike P, should be open to the scrutiny of the public) should be named in all but the most exceptional of cases.
Kim Dodd has previously blogged for the Open Justice Court of Protection Project (“A newly addicted observer’s reflections“) under the pseudonym of “Jean Louise” as she was at the time a respondent in her dad’s CoP proceedings and subject to a Transparency Order preventing her from identifying herself as a family member of a protected party. That TO has only recently been discharged as a result of her dad’s death (the order had effect “until further order of the court OR the death of P“). Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).
[1]On a sidenote, I have long been intrigued by the ‘t’ that (sometimes, though not often) replaces the 8th digit in CoP case reference numbers. I observed a few hearings to try and work it out (which it transpired I couldn’t – though I was able to eliminate some of my theories, such that it may indicate a ‘translator’ was required). I asked the court after this hearing and was told the following: ‘The case numbers with a t were generated by our old case numbering system. As far as we know there is no significance to this change and they were just generated at random.’. If anyone can confirm or deny this account it would be much appreciated.
Last weekend I read through the 300-page court bundle of documents associated with my mum’s Court of Protection (COP) case for the very first time in its entirety.
At the hearing in June 2022, I’d been a Litigant in Person (meaning I represented myself and didn’t have a lawyer) – but at that point I’d only read the principal documents such as witness statements and position statements. And after the hearing I just wanted to forget about it. In any case, I don’t think I would have understood a lot of it then. Nearly three years on, I have learned so much more, although recent events have led me to realise that there is still so much more to learn.
Reading the full bundle has helped me to piece together more about why we became involved in a COP case, which I have never fully understood. Why us? But the jigsaw is coming together. And I was shocked and upset by what I discovered. Reading the bundle brought all the emotions back, not least reading Mum’s words and realising the impact of her dementia, then and now.
I could write pages but I will pare it down to the minimum for now. Because I am still subject to some reporting restrictions (and my three siblings are still subject to all the standard reporting restrictions), I will use random initials and no identifying information.
I’m sharing this not to blame anyone but to hope that there is learning from it, and to give a voice to other families who can’t speak out about their experiences of similar situations. And of course anybody, at any time, could become a family member of a protected party (‘P’) in a Court of Protection case.
Here’s the story:
In 2013 Mum shows the first signs of forgetfulness. Me and my siblings (I have two sisters and a brother) all agree that Mum should appoint us with Lasting Powers of Attorney (for Finance and Property and for Health and Welfare) so that we could make decisions for her if, in the future, she’s not able to make her own decisions. For practical reasons, we all agree that my sister MC and her husband HC will do it. They are both qualified accountants (as am I, the replacement LPA). Mum willingly agreed to it, once I had explained to her about it. It was done after a visit to a solicitor, attended by me and Mum.
In 2016 Mum is formally diagnosed with dementia.
For many years, MC devotes a significant portion of her life to caring for both Mum and Dad, at the same time as having her own school age children and working. A typical ‘sandwich” carer. This includes sorting out a care package of four visits a day for Dad (after he suffered a stroke) at the home he and Mum share.
Dad dies in 2019. The family agree that Mum needs her own care package and MC sorts all this out. Mum has three and eventually four visits a day from carers. During the covid pandemic lockdowns, MC organises everything for Mum, including all her shopping. She takes over Mum’s finances in order to pay the bills as Mum can no longer manage. She always keeps the rest of us informed about everything.
MC spends more and more time caring for Mum, on top of the care visits by professionals. It’s difficult, as Mum doesn’t think she needs any care and doesn’t accept she has dementia. She resents MC and the professionals interfering with her life. She says she can look after herself. She says she just wants to be left alone.
Over time, all four of her children become increasingly concerned about her wellbeing, both mental and physical, especially the risk of her setting fire to the house because of her smoking habits. MC and I contact social services for additional support as we are so worried. There are a couple of visits, but they say that they can’t do anything more.
In 2021 the problems escalate and a new social worker gets involved and responds to our plea for support. Crisis point is reached and we all agree, us four children and the social worker, that the point had finally been reached that Mum should move to a care home providing specialist dementia care. It is July 2021.
As MC and her husband hold LPAs for Health and Welfare, we assume that they can make that decision. After all, we thought that was the point of having one in place:
‘A health and welfare LPA gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if you’re unable to make your own decisions.’
9. The family decide that my brother would take Mum to the care home as we know my Mum will blame MC. She blames her for everything, in spite of all that MC does for her. Mum settles in pretty well. She is vocal about not wanting to be there, though, when anybody asks.
10. We think Mum will be there for good, as we can’t see any way that she’d be able to leave to live independently again. We agree to sell the family home, to pay for the care home fees and to pay off the equity release debt, which we understand has to be paid back when a person moves into full time care. So mum is a self-funder.
11. Although the social worker explains that it would have to be initially respite care, we assume it will be a formality to transfer that to permanent care. We have never heard of Deprivation of Liberty. We start hearing inklings, although nobody ever really explains it to us. ‘Court’ is mentioned. We don’t know what court. We try and find out more from friends who might know. They say ‘Oh, it won’t get that far’. Including a friend of mine who is a GP.
12. Nobody tells any of us, including MC, that a paid Relevant Person’s Representative (RPR) is appointed to represent Mum. This is because we all agreed that Mum should move into the care home and we are therefore deemed not to be able to represent her, since Mum’s expressed wish is to leave the care home. (I only learned this very recently).
13. The RPR never speaks to MC, HC, or us three other children.
14. Mum continues to say, when asked, that she doesn’t want to be there. But she doesn’t display any behaviour of trying to leave. And when I take her out into the community, she willingly returns to the care home.
15. Reading through the court documents, Mum says a lot of things when speaking to professionals. Included among the things mum is reported as saying are:
I am 200 years old
The Queen visited my mother
The decorator in the home is from my home town
My daughter has put me in a home because she is after the money from my house.
I led hundreds of children over the mountains to save them from the Japanese (in the second world war).
I read about these in the court bundle. But they don’t surprise me as Mum still frequently says them, plus a lot more. None of them are true.
16. The RPR decides that, based on speaking to Mum, Mum is happy for a judge to decide where she should live. She first contacts a solicitor in November 2021, after meeting Mum remotely (because of Covid restrictions). Family are not consulted at all. Mum tells other people, including the social worker, that she doesn’t want to go to court.
17. Mum tells me and MC to watch out as “they” are out to get us.
18. The Official Solicitor is appointed and the court application is prepared and sent in. Reading the bundle this weekend, I have confirmation of what I had always suspected. It is clear from the documentation that somebody, somewhere, believed that Mum was speaking the truth when she said that MC was after the money from her house. The Statement of Facts, a document sent in with the court application, only mentions MC. None of us other siblings are mentioned in that document. The implication is that MC is an only child. I’m not sure who prepared the Statement of Facts. Paragraph 5 of that document is damning. It focuses on the sale of the house. In my opinion, anyone reading that paragraph will believe that the house sale is suspicious. The two A4 pages of Statement of Facts is compiled from pages and pages of documentation that many people would read and come to a different conclusion.
19. MC receives a letter in April 2022 saying ‘Ms X’ (Mum, who has always been ‘Mrs’) has applied to the COP, and with some forms for MC to fill in ‘only if you wish to participate in proceedings’.
20. On receiving the letter, MC phones the solicitor to ask if she can send the form to her sister (me). The solicitor she speaks to replies ‘But you’re an only child’. MC replies ‘No, I have a sister in France’. The solicitor replies ‘No, you’re an only child’. MC says ‘No, I have three siblings”. At which point the solicitor says she will call MC back. MC then receives a call from a more senior solicitor. The senior solicitor says that only MC is named on the DoLS form(s?), and that is why the rest of the family were not contacted as interested people. This is repeated in the court documents in the bundle. On reading the reams of pages used to prepare the Statement of Facts, it is clear that Mum has four children. Even the RPR refers in the documentation to Mum’s children. The other person holding LPA for Mum, my sister’s husband, HC, is never mentioned by name in the documentation, only briefly as MC’s husband.
21. I send an email myself to the solicitors to try to find out more. But MC is told that as her siblings are not included in the application to the CoP, they cannot speak or communicate with anyone except through MC.
22. I want to learn more about the COP and search on the internet to find out more. I come across the Open Justice Court of Protection Project by chance. I start observing COP cases and with the support of Celia Kitzinger I ask to become a Litigant in Person (a party), so that the family can have a voice in the hearing. And so that we (as people who have known her all our lives) can try to make sure that Mum’s voice is heard.
23. MC and I attend the remote hearing held in June 2022. During the hearing, I am joined as a party by the judge, as requested. This means I receive all paperwork including the bundle. We ask the court’s permission to talk to our siblings about the hearing, which is given.
24. There are two subsequent round table meetings (lawyers, MC and me, Social Worker, care home staff) and everyone agrees that it’s in Mum’s best interests to remain living where she is. The court order includes certain things to reduce the restrictions on Mum, such as ensuring access to the community by going to the hairdresser. The hairdresser is a longstanding friend to Mum, and like another daughter to her. It was the one place she regularly went to, up until the very end of her life at home – taken by MC once a week on a Friday.
25. The final hearing in December 2022 is vacated (it doesn’t go ahead) because there is an agreed order. We are very happy with the outcome and it is all resolved amicably.
26. Life goes on. Family take Mum to the hairdresser as regularly as possible. MC continues to do most of the liaising with the care home, carries on paying the bills, buying clothes for Mum, and taking any phone calls from professionals. Etc Etc. All of us visit Mum regularly. My other sister visits often, and takes Mum’s greatgrandchildren when she goes, and they take Mum out. My brother also goes to visit regularly. We all are in agreement about everything to do with Mum’s care and where she lives. We are all very happy with the care home and how Mum is being looked after.
27. Mum has made friends. There is continuity of staff, who know her very well, and can cope with the ups and downs of her behaviour caused by the dementia. She says one of the carers in particular is like a son. I have the utmost admiration for them. Caring for people with dementia is so difficult on the whole, although I’m sure it has its rewards too. The care home activities team are wonderful.
28. Mum is now 91 and very frail. She has severe dementia but thankfully still recognises us. And depending on her mood, she still blames MC for where she is. But not the rest of us children. She at other times says how much she loves MC and how she has been badly treated. It depends on her mood. She remembers nothing about the court case and didn’t understand it at the time either.
29. Mum still gets distressed by people asking her official questions, as was the case at the time of the COP proceedings She still just wants to be left alone. As the court documents state she said, and as we know from knowing her all our lives, the most important things to her are her family and her faith.
30. MC receives a phone call annually about the DoLS assessment. It is a different person every year. In 2023, the Best Interests Assessor asked her if she knew Mum had been involved in a court case. Last week the new Independent BIA said that Mum was in a good mood. She also mentioned that “K” continued to visit Mum once a month.
31. This comes as a shock. We have no idea somebody is visiting Mum once a month. Nobody has ever told us.
32. When I contact the care home, they say they assumed we knew as it was ‘something to do with the court case’.
33. I want to find out who ‘K’ is and why she is visiting. And why nobody has spoken to the family about her. And why she has never spoken to MC. There is no information on the annual DoLS form and nothing in the court order about continuing visits from anybody. Nobody is named as RPR on the form.
34. I ask myself: Is this usual? Is this what should happen? And where does the official function of an LPA fit in? Has anyone recently determined that this visit by a stranger once a month is in Mum’s best interests? Especially as we know, and the court documents show, that Mum gets distressed when asked questions by officials.
35. I email the DoLS team. The Independent Best Interests Assessor comes back to me very quickly, thankfully. It seems that ‘K’ is a paid RPR. She doesn’t visit Mum monthly, but “regularly”. She says that family can take on this role. I enquire more and the DoLS team say it doesn’t cost Mum or the family anything as the Local Authority pay for it. They suggest that MC takes on the role but I want to do it. MC has dealt with so much and I know more about the role.
36. The Independent BIA confirms that I can take on this role and the paid RPR won’t be needed any more. I am delighted by this and am grateful to the DoLS team, and Independent Best Interests Assessor, for their reactivity. But disappointed that maybe I could have been doing this ever since the court case.
37. The original RPR is no longer involved. I don’t know when she stopped being involved.
And that is, currently, the end of the story.
Professionals come and go but, for the vast majority of the time, family are constant. The vast majority of families want to do the best for their loved ones and spend many hours caring for them. In my opinion, safeguarding training creates an overly suspicious attitude towards families. And once a label or suspicion is attached, it’s hard to shake off.
There have been many positive consequences for me. It has brought us as a family closer together. I have found new purpose in life. I am passionate about open justice. I also want to shine a light on what going through COP proceedings can be like for families. That’s why I’m doing a PhD which focusses on this. I hope by shining a light, it will help families, many of whom are prevented from speaking out themselves by ongoing reporting restrictions.
I hope the professionals will understand more about what it is like for families. In an ideal world we all need to work together collaboratively for the best interests of ‘P’.
There have been such negative consequences – emotionally, reputationally (especially for my sister MC), medically (the young social worker who supported us ended up going on long-term sick leave, and I’m convinced this was at least a partial consequence of our case, as it was the first time she had been involved in COP proceedings). And financially. What a huge cost to the taxpayer. Could there not be a way of avoiding going to court in this sort of situation? And the ongoing role of paid RPRs seems to be little understood.
Finally, I am writing this blog especially for my sister MC. So that all that she has done for Mum is publicised. So that she can be seen for the generous, kind and caring person she is, rather than as a suspect family member. She can’t speak about it so I want to. I hope one day soon she can.
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 is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social).
By Amanda Hill and Claire Martin (with acknowledgment of significant input and support from Celia Kitzinger)
Update 26 May 2025: The application to vary the reporting restrictions was successful and a judgment, [2025] EWCOP 16 (T3), was published on the National Archives Friday 23 May 2025. We will blog about the hearing to vary the Transparency Order later. But we are now allowed to report that this committal hearing related to COP14187074. This is a case we have blogged about previously:
A few months ago, we observed a committal hearing at the Royal Courts of Justice at which someone was found to be in contempt of court for having breached undertakings and injunctions and given a (non-custodial) sentence.
We believe that the way these proceedings were managed does not meet the judicial aspiration for transparency in the following key ways:
The public don’t know that the committal hearing even took place, because it wasn’t listed correctly as a committal: there was no public information in advance of the hearing about which public body made the committal application, and no record of the name of the person who faced being sent to prison, or fined, or having herassets seized[1].
The judgment – which does name the local authority and the defendant – has not been published. This means there is no public record of what undertakings and injunctions the defendant was found to have breached, or what sentence was handed down. There is also no public record of the applicant’s and defendant’s names: we’ve been unable to find the defendant’s name on the judicial website.
We are banned from reporting on the substantive content of the committal proceedings including, in particular, reporting on the proceedings in any way that connects the committal with the previously published fact-finding judgment in the same case, and with our blog posts and other published legal commentary about the case.
Here’s what happened in relation to each of these concerns in turn. We’ll chart the problems here and then turn, in the second part of the blog post, to what actually happened in the hearing we attended[2].
1. The hearing wasn’t listed as a committal hearing
This was not complied with. Neither the name of the applicant nor the name of the defendant were provided in the public listing on the Royal Courts of Justice public website, and nor were the words “committal to prison” used.[3]This was apparently a mistake and not as a consequence of judicial direction: “With regard to the incorrect listing of the committal (which is also acknowledged in the judgment itself), this was due to an administrative error in the listings office. The court apologises for this”[4].
We knew it was a committal hearing because people involved with the Open Justice Court of Protection Project have been following this case for a while, and we knew that a committal hearing had been planned for this case on that date with this judge and we had arranged, in advance, to attend in person. We also advertised the fact of the upcoming committal hearing on our WhatsApp group for people interested in observing hearings, and we’d supplied links to the previous blog posts and judgment: one other observer attended remotely as a result. We do not know whether the judge had alerted the Press Association to this hearing – as also required by the Practice Direction – but in any event no journalists were in court.
2. There is no published judgment
A judgment was handed down which finds the defendant in contempt of court on five grounds and imposes a (non-custodial) sentence upon her.
We have been sent a document with 50 numbered paragraphs setting out the background to the case, the grounds on which the applicant local authority claims that the defendant is in contempt of court, the judge’s views on the evidence, and her decision and sentencing. The document resembles a published judgment in its format and layout, save that it specifies on its face that the judgment is “ex tempore”, and the space where the “Neutral Citation Number” should go has been left blank. A recital at the beginning of the judgment says that it is ”PURSUANT TO the guidance in Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] EWCOP 29)” – which is the leading case law on the matter.
There is no legal requirement on the judge to publish the judgment because, although the defendant was found to be in contempt of court, she was not sentenced to prison. According to Poole J in Esper:
“If the court finds the defendant in contempt of court but does not make a committal order, then a reasoned judgment must be given in public and the defendant must be named in court and their name published on the judiciary website, but there is no requirement for a transcript of the judgment to be published on the judiciary website, although the court may choose to do so.” (§54(x)(b) in Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings) [2023] EWCOP 29)
We’ve been told that the judge “does not intend to publish her committal judgment” (email from judge’s clerk), so it will not appear on any of the usual sites (BAILLI, The National Archives, or the judicial website) where members of the public can access it.
We note that – contrary to the guidance in Esper (§54(x)(b))quoted above– there does not seem to have been any publication of the defendant’s name on the judiciary website (at least not where we’ve been able to locate it).
So, for now, only the people directly involved in the case and those of us associated with the Open Justice Court of Protection Project, are aware that a named individual has been found in contempt of court for breaching specific undertakings and injunctions, and she has been sentenced for those breaches, and what the sentence is.
3. A new reporting restriction effectively bans us from reporting the substantive content of the committal proceedings
During 2024, observers watched hearings in this case and blogged about them in compliance with the reporting restrictions imposed by the court, which were in all relevant respects those set out in the “standard” Transparency Order.
In 2025, the judge made a new Transparency Order (TO) specifically for the committal hearing. This is common practice because the “standard” Transparency Order states that the injunction “does not apply to a public hearing of, or to the listing for hearing of, any application for committal” (§9(iii) in the template, though its paragraph number may be different in any actual TO). The “standard” TO doesn’t apply to committal hearings because they are a different kind of proceeding, with rules all of their own[5].
In committal hearings, the name of the person facing a prison sentence should usually be published – even if publication of their name had previously been prohibited because they are a family member of the protected party.
Here’s the salient part of the 2025 TO.
Like the 2024 TO, the new TO in this case prohibits publication of the name of the person who is the subject of the Court of Protection proceedings and anything that is “likely” to identify her, or where she lives, or the name of her carers. But it does not specifically prohibit us from naming the family member who is the defendant in this committal hearing. The defendant’s name appears on the face of the unpublished judgment – as does the name of the applicant local authority – as well as, several times, in the body of the judgment itself.
The problem we face in writing about the case is not that we cannot name the defendant – we can! – but that the new TO (unlike the previous one) prohibits publication of information “that identifies or is likely to identify the specific relationship” between [the protected party] and the defendant – and this information is already in the public domain.
The “specific relationship” (i.e. the nature of the family connection between P and the defendant, e.g. aunt/niece; grandmother/granddaughter) is revealed in the publicly-available fact-finding judgment in this case, published in 2024 a few months before the committal hearing took place. In the opening paragraphs of that judgment, the judge says of the person who is now the defendant that she “is P’s [X]” – where X names the “specific relationship” between them – and in the course of that judgment, there are more than 100 references to this “specific relationship”[6].
Of course, at the point that judgment was published, the family member referred to in the fact-finding hearing was not yet a “defendant” in a committal hearing – but the judge helpfully says, in her 2024 judgment that there will be a committal hearing concerning this family member[7], and she names the date. So, anyone reading the 2024 fact-finding judgment –available on public websites – has unfettered access to information about the “specific relationship” between the defendant-to-be and the protected party.
We have experimented with google searches and with the search facilities in BAILLI and the National Archives to ascertain what information is “likely” (the word used in the TO) to lead people to uncover the “specific relationship” between the defendant and the protected party, as referenced repeatedly in the published judgment. Obviously, this includes any explicit link to the previous judgment (we would normally consider it good practice to provide the judgment name and an electronic link). Since (it turns out) this judge is not a prolific publisher of judgments, information “likely” to lead people to her previous judgment in this case, also includes: the judge’s name, the date of the hearing, names of counsel, and distinctive facts about the undertakings and injunctions breached by the defendant (also covered in the ‘fact finding’ judgment).[8]
The Open Justice Court of Protection Project also published blog posts over the course of 2024 making explicit the “specific relationship” between these family members – as have other legal commentators. At the time these blog posts (and legal commentaries) were published, this was not prohibited by any court orders – and it is well established that reporting restrictions cannot be imposed retrospectively (Roberts J, §109 in Re BU[2021] EWCOP 54). We would normally provide links to previous blog posts (and perhaps to legal commentaries) as part of our effort to present a case ‘in the round’. We cannot do that now without breaching the 2025 TO.
What all of this means is that we can’t report on the committal hearing in any way that relates it either to the public judgment that the (same) judge has already published about this case, or to our previous blog posts or to others’ legal commentary about the case. To do so makes it “likely” that readers would be able “to identify the specific relationship between [the protected party] and the defendant” (TO, (4)(iii)).
In effect, the reporting restrictions in the 2025 TO sever the link between the committal hearing and everything that has happened in this case previously – as reported in the judgment, blogs and legal commentary from 2024[9].
This is a very serious interference with the public’s Article 10 rights to freedom of information. Thousands of people have read our previously published blog posts about this case. There is a legitimate public interest in learning what happens when family members are found to have breached undertakings and/or injunctions in the Court of Protection. The effect of the injunction against us is that people can read about the events leading up to the committal hearing (in our blogs, in the legal commentary and in the 2024 judgment that announces the forthcoming committal proceedings) – but the trail stops there, with no public report of the committal itself.
We have submitted a formal application for variation of the Transparency Order to remove §4(3) (i.e. the prohibition on naming the “specific relationship” between the defendant and the protected party).
Why and how did the judge make the 2025 Transparency Order?
We attended this full-day committal hearing in person at the Royal Courts of Justice in London.
The hearing began without us having had sight of a Transparency Order. We’d asked counsel for the TO (and for the Position Statements) immediately before the hearing started, but it seemed there wasn’t one – not even in draft form for the judge to approve.
Consequently, the question of reporting restrictions was the first issue for the court to address.
Because – as a consequence of the “administrative error in the listings office” – the defendant’s name had not yet been made public via the committal listing as it should have been, this raised the possibility of a Transparency Order banning publication of her name altogether. The parties took different positions on this point.
Counsel for the Local Authority opened the proceedings by citing Esper and saying that the default position in committal proceedings is that the name of the defendant should be published. The court should also consider whether additional reporting restrictions were needed in view of the possibility of ‘jigsaw identification’ of the protected party once the defendant’s name was in the public domain, but “the predicament that [P] faces is already well-known to those who know her … and this is not a case where she would be placed at risk, for example from vigilante groups if the defendant’s name is published…. So the defendant’s name should be permitted to be published and the TO should be amended to permit that”.
Counsel for the Defendant submitted that the judge did have the power to make an order to prohibit reporting of the defendant’s name, and that she should do so because “the reporting of [defendant’s] name is almost bound to lead to [P’s] name being revealed” because of the specific family relationship between them.
Counsel for P (via the Official Solicitor) had not yet received instructions but took the interim position that the new Transparency Order should continue the protection afforded by the previous Order to the identities of P and her carers, and that “the only issue is whether [the defendant’s] name should be permitted to be reported”. He accepted that there is a risk of P being publicly identified as a result of identification of the defendant, who is a member of her family. The judge asked whether there was a way to prevent reporting of the specific relationship between the defendant and the protected party, and counsel said yes, “that happened in Esper – the defendant was identified only as a ‘relative’, so that may be an avenue”.
The judge decided to “see where we get to by the end of the day” before making a decision about the reporting restrictions – not least, since there would be different requirements concerning publication of a judgment depending on whether or not she handed down a custodial sentence (which would require a published judgment). She reflected out loud however that “I wouldn’t want [the defendant] to be identified as P’s [specific kinship relation]… ‘Relative’ is a better approach”.
Counsel for the Local Authority pointed out, in response, that “the only thing is, if there is a published judgment from today, is it going to have the case number on it? That is a difficulty because the case number is linked to the previous hearings and will identify [the defendant] as the [specific kinship relation] of the protected party…. It would be obvious that [the defendant] is the [specific kin]”.
The judge accepted this, remarking “the cat would be out of the bag”. Pending determination of the reporting restrictions, she ruled that we could not report at all during the hearing – including a reporting restriction on the discussion about the reporting restrictions.
The parties then focussed on the matter of the committal, of which we can provide only a minimalist account. Essentially:
The defendant admitted breaches to undertakings she’d made regarding contact with the protected party – including having unsupervised contact and behaving towards P in ways that caused P to become upset and distressed. But she did not accept that she was in breach of the two terms of an injunction (the details of which we can’t give).
In relation to breach of the injunction (not admitted), a carer was sworn in to give evidence and be cross-examined about an “incident” she witnessed at which the defendant allegedly raised matters known to be upsetting to the protected party.
The defendant exercised her right to silence and did not give oral evidence (which is apparently a choice from which – it was determined – the judge can draw adverse inferences).
Counsel for the Local Authority argued that the evidence of the witness met the criminal standard of proof for a breach; the defendant’s counsel argued that it did not; and on behalf of P, the Official Solicitor took a neutral stance.
The judge found the defendant to have disobeyed the law and to be in contempt of court on all the grounds raised (bar one that was withdrawn by the Local Authority), including breach of the injunction.
The parties made submissions about the appropriate punishment – nobody argued for a custodial sentence: the breaches were said not to meet the requisite threshold (the Local Authority), not to be in P’s best interests (the Official Solicitor) and not to be merited given the “loving” relationship between the defendant and P, and the defendant’s commitment to P’s best interests as she sees them, at a time of some personal difficulties for the defendant. The judge imposed a penalty short of a custodial sentence. There was no application for costs.
The court then returned to the matter of reporting restrictions. The focus was firmly on the matter of whether or not the defendant should be named.
Counsel for the LA: Talking about whether a defendant’s name should or should not appear in the court list, it [i.e. Esper, specifically, “Conclusions on PD 2015 and COPR r21.8(5) §54 III”)] says the defendant should be named, that anonymisation is derogation of open justice.
Judge: I assume [the defendant’s] name was listed in the court list?
Counsel for the LA: No. ((Judge shakes head)). Mr Justice Poole noted in that case [i.e. Esper) that it was not the first time it (i.e. failure to name the defendant in court lists) had happened. So, your order was not followed. I don’t know if there’s anything you can do behind the scenes in future to prevent that happening. [The defendant’s] name should have been made public prior to today’s hearing. ((He then took the judge through the relevant law and guidance, concluding that the defendant should be named in the judgment.)) We can’t say [the defendant’s] name should not be published in order to protect [P’s] identity. There’s always a risk of jigsaw identification. You’ve already anonymised the initials in the previous judgment. This is not a case where harm would come to [P] if her name was inadvertently found out, even though there would be prohibition – our understanding is that the wider family and those caring for [P] are aware of the dynamic in the family and aware of the COP proceedings […]. The interests of open justice should prevail. There is public interest in learning the identity of people who are subject to committal proceedings. In this case, this is not a high-profile case with a lot of media attention. If people do find out, they are prevented from publishing the name of [P] in any event…. Your judgment from [2024] did say that there would be contempt proceedings in the New Year…. We say there is public interest in knowing what’s happened in that application.
Counsel for the defendant returned to the problem that, in their view, identification of the defendant would “inevitably” lead to public identification of P. He suggested that “it may be that taking different initials is the approach the court takes” (i.e. using different initials for the parties in the contempt proceedings from those used in the fact-finding proceedings) in order to avoid “the two judgments [being] linked”. He said: “My instructions are to raise concerns about P being identified, and to ask the court to give consideration to ways those risks can be minimised. Of course, the obvious way is for [the defendant] not to be named at all, but the court needs to consider open justice…. I suppose my closing submission is this: if the court considers that naming [the defendant] has the inevitable impact of identifying [the protected party] as P within the Court of Protection proceedings, then if there’s no way of ameliorating that risk, we would be concernedabout that course of action, from the perspective of wishing to protect P’s identity”.
Counsel for P (via the Official Solicitor) expressed concern about naming the defendant in a context where the committal proceedings had been brought for the protection of P, and naming the defendant risks undermining the protection (of her privacy) that has been put in place for the welfare and fact-finding proceedings. He hoped that there might be “a sensible and appropriate way to name [the defendant] without risking jigsaw identification of P”.
We were asked for our views as public observers at this point[10]and took the general position that it was important for open justice to be able to name the defendant. We were not asked to consider, and did not think to address, the question of whether the defendant’s “specific relationship” with the protected party should be concealed – and, in retrospect, that was a mistake. If the judge had raised this as a possible outcome, we would have explained that not only had the previous judgment made this relationship explicit, but also that the Open Justice Court of Protection Project blog posts had too. But we are not lawyers and not accustomed to being asked to make submissions in court, and were doing so ‘on the hoof’, without having had an opportunity to prepare. On previous occasions when we’ve made submissions in court, we’ve had the TO in front on us and have been able to point to particular wording as problematic – but there didn’t seem to be any concrete proposals (other than a total ban on naming the defendant) before the court. We had simply not appreciated at the time that naming the defendant but obfuscating her relationship with the protected party was a likely outcome. Our focus was instead on ensuring, as far as possible, that publishing the name of the defendant would not be prohibited.
Counsel for the Local Authority repeated again words to the effect that the principle of open justice weighs heavily here, despite a risk of jigsaw identification, and that it’s “important that there is continuity between the judgments”so that the case can be understood in the round.
The judge concluded by saying that she would not give a ruling on the transparency issues that evening and that the existing Transparency Order would remain in effect until she had made a decision about whether or not the name of the defendant could be published. She indicated that her decision would be communicated within five days or so.
In fact, the new TO was not issued until three weeks after the hearing – and we received it only after Amanda wrote to the judge enquiring about it.
We were shocked when we read the new TO – immediately realising that it severs the link between the 2024 fact-finding judgment and the 2025 committal judgment. The prohibition relating to the “specific relationship” between defendant and protected party (combined with the changed initials for the parties) ensures that nobody except the observers and those involved in the case can know that the two judgments refer to the same case. This is not open justice.
There may be circumstances under which it is necessary and proportionate to sever the continuity of two judgments in a case and to block transparent reporting. But we have not heard any arguments in this case to indicate that P’s Article 8 privacy rights (or her right to protection from harm) would be so desperately imperilled by reporting the “specific relationship” between her and her family member as to justify this draconian restriction on the public’s Article 10 right to freedom of information.
We will report back on the application to vary the 2025 Transparency Order in due course.
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 also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin and on BlueSky as @doccmartin.bsky.social
[1] For convenience, we refer to the defendant, the protected party and the judge using feminine pronouns (she/her etc) and to all the barristers in court (representing the applicant LA, P via the Official Solicitor and the defendant) using masculine pronouns (he/his etc). Readers should not, however, draw any inferences as to the sex or gender identity of these persons.
[2] The two observers who wrote this blog post were Amanda and Claire. Celia Kitzinger was out of the country and without internet access at the time of this hearing, but as co-director of the Open Justice Court of Protection Project became involved on her return in trying to untangle the complex transparency issues involved in this case. She also took responsibility for submitting the COP 9 application to vary the 2025 Transparency Order. Thank you also to Daniel Clark for exhaustive experiments with different search terms in different search engines to determine how “likely” it was that naming the judge or giving the date of the committal hearing (for example) would lead to information about the “specific relationship” between the defendant and the protected party.
[3] In the unpublished judgment from this committal hearing, the judge says: “it was unfortunate that the court list did not show the defendant’s name but identified her by initials” (§15). This is incorrect: the initials that were published were not the initials of the defendant, but the initials of the protected party. The judge does not comment on the fact that the word “committal” was not used in the listing or on the failure to publish the name of the applicant public body in the list.
[4] Extract from an email sent by the judge’s clerk. (We’ve avoided giving the date and other details since to do so would increase the likelihood of readers becoming able to source information prohibited by the 2025 Transparency Order in this case.)
[5] See the Lord Chief Justice’s Practice Direction on committal for contempt of court and (especially) Esper v NHS NW London ICB[2023] EWCOP 29, in which Poole J offers a thorough review of the rules around contempt and transparency – including the interplay of different regulations.
[6] In the 2024 judgment, the defendant is referred to more than 30 times by reference to her “specific relationship” with P (e.g. “niece”) and the protected party is referred to more than 70 times by reference to her “specific relationship” with the defendant (e.g. “aunt”) – although, for the avoidance of doubt, we point out that this is illustrative only and that the reader should not draw from this example any inference as to the actual relationship of defendant and P. Our point is simply that the published judgment repeatedly invokes the “specific relationship” between the defendant and P in sentences such as: “She told her aunt…”….“She accepted that her aunt….” and “There was concern that her niece….”… “Her niece was observed by the social worker to….”).
[7] The judge said, in the course of the committal proceedings, that she “rather regrets” having included reference to the upcoming committal hearing in the fact-finding judgment.
[8] It would be possible to argue, in our defence, that, although naming the judge (for example) would make it easy in principle for people to identify the previous judgment in this case, and hence to identify the “specific relationship” between defendant and protected party, would anyone really bother? It would take less than 5 minutes to anyone familiar with the relevant legal archives, but the reality is (it could be argued) that very few readers of our blog posts will be sufficiently motivated to discover the “specific relationship” between the defendant and the protected party that they would enter the judge’s name into a National Archives search and open all her 2024 judgments to detect the one adumbrating an upcoming committal. People have other, more pressing, demands on their time! We don’t advance this argument for the following reasons: (1) it is a matter of principle that we should be able to link to published judgments, and this principle should not be predicated on an assumption that it’s unlikely that members of the public will click on these links; (2) in fact, in the last 12 months there have been more than 1,800 clicks on links from our blog posts to BAILLI, the National Archives, and the judicial website where judgments are published, so clearly some readers are accessing judgments from our blogs; (3) the 2025 Transparency Order is an injunction against us with a penal notice, and we don’t want to risk committal for contempt of court on the basis of an untested argument about how “likely” is it (or isn’t) that linking to a judgment will mean people (a) click on it, (b) read it, and (c) discover the “specific relationship” between the defendant and the protected party.
[9] The 2025 TO also refers to the protected party (and another family member) with different initials from the initials deployed in the 2024 judgment (which already represented a different set of initials from those used in listings for earlier hearings in the same case). This third set of initials makes it less likely that anyone casually stumbling over the fact-finding judgment will recognize it as relating to the committal judgment (which is public albeit not published) simply on the basis of the initials on the face of the judgment. The decision to create a third set of initials for the parties must be part of a deliberate strategy by the court to sever the connection between the committal and the previously published judgment. (The judge’s stated “regret” at having announced the upcoming committal hearing in her 2024 published judgment supports that interpretation.)
[10] Perhaps our position in the physical courtroom, sitting front and centre on the press bench focused attention on us. We’d asked to sit there in order to be able to hear better (and there weren’t any journalists in court competing for those seats). At one point earlier in the hearing, counsel for the Local Authority had looked over at us and said “The observers in court are responsible legal bloggers and part of the Open Justice Court of Protection Project and they won’t make it easier to identify (P)”. Another observer was watching the hearing via the video-platform, but was not asked for her views about the Transparency Order. It may also be relevant to point out that we’re not technically “legal bloggers”, as that term is used in the Family Court Transparency Pilot (Family Practice Rule 27.11). In the Family Court, “legal bloggers” is defined with reference to ‘duly authorised’ lawyers (see: Legal Blogging and the Open Reporting Provisions). We blog about legal matters and hearings we have observed but we aren’t lawyers. (The judge also refers to us as ‘legal bloggers’ in §15 of her unpublished 2025 committal judgment.) Finally, the 2025 Transparency Order has an opening recital “UPON hearing from…” which lists counsel for the applicant, counsel for the defendant and counsel for the first respondent, but (curiously) not us, despite the fact that the judge asked for our views and we provided them in court.
The person at the centre of this case, who I’ll refer to as J, is a man in his 30s with a diagnosis of schizoaffective disorder. On several occasions he has been detained in hospital pursuant to the Mental Health Act 1983, and he now resides in what sounded like a supported living type accommodation.
His counsel, Sophie Allan of King’s Chambers, explained in a very detailed opening summary that, his “presentation is quite complex but, in short, he does object to the circumstances of his residence, care, and support which constitutes a deprivation of liberty”. These proceedings (COP 20006720) are a challenge to that deprivation of liberty: “he wishes to reside more independently in the community”.
I observed this case on Thursday 3rd April 2025. It was heard before District Judge Weir who was sitting remotely (via Cloud Video Platform) at Sheffield Combined Court Centre. She stated at the start of the hearing that she was “content” for me to observe the hearing and, I hasten to add, that word was spoken warmly.
The judge also said that she was happy in principle for me to have position statements. I say “in principle” because there weren’t actually any position statements filed for this hearing. I was nevertheless grateful for her saying this. The judge could have ignored my request for them but acknowledging that I could have had them if there were any contributed to a welcoming atmosphere. In lieu of the position statements, she asked J’s counsel to give a more detailed than usual opening summary.
The respondent local authority, Sheffield City Council, was represented by Claire Farrell (unfortunately I’m not sure of her firm). The position of the local authority was that J should remain where he is for now while acknowledging that, with a combination of closer work with him and a change of medication, this position was open to change.
Counsel for the local authority didn’t actually have to say very much because J’s social worker, who was also on the link, made multiple contributions throughout the hearing. As the title of this blog states, the judge thanked her for her “enthusiasm and passion”.
In this short blog, that’s what I want to focus on. To my mind, this was very great praise indeed, and I think it deserves to be publicly known. The Transparency Order[i] prohibits me from identifying “care staff” and, while I don’t think that technically includes his social worker, there is a possibility it could. Even aside from this ambiguity, I have chosen not to identify this social worker because she may not want her name and place of work to be publicly available. Instead, I’ll refer to her as SW, which should be read as representing the words “Social Worker”, and which bears no resemblance to her actual initials.
The first time that SW spoke was during a discussion of how much debt (owed, I think, to the Department for Work and Pensions) J was currently paying off. Counsel for J wasn’t sure of the exact amount and, while she was looking for it, SW offered “an update on the financial situation”. I have to admit that I felt myself take a sharp intake of breath when this was offered. The last time I saw a social worker contribute to discussions unprompted was before District Judge Clarke, who sits at First Avenue House. On that occasion, it didn’t go well, and you can read about it here: A young man failed by NHS South West London ICB and the London Borough of Wandsworth
In the case that this blog concerns, SW was clearly knowledgeable – and was able to convey information that the court was happy to receive. She told the court that she had requested somebody, I think Citizens Advice Bureau, to have a close look at the amount of debt repayments being made because, “I think there’s something wrong”. Her passion was quite clear, and I got the strong impression that she had a wide knowledge of the benefits system.
SW also told the court that, “we want [J] to cook with staff…he really struggles to formally engage in any type of activity but he wants to cook”. It turned out that this had been on the judge’s mind, too.
The court heard that J has a good relationship with a support worker, with whom he enjoys cooking. He doesn’t like to use the ingredients provided by the place he lives, and shops for them himself. Ultimately, SW felt that more cooking would create a space to enable him to develop further skills for independent living. As she put it: “if [J] wants to do it, fantastic, let’s make it happen”.
The judge was very keen for this to happen, too. While J does not currently have a deputy for property and affairs (that issue will be before the court at the next hearing), the judge directed that he should be given £20 every fortnight in order to purchase ingredients for cooking. However, “if it goes well on a fortnightly basis [it’s possible J may stop wanting to cook], I’d like to see if it can happen more frequently”.
A little later in the hearing, the judge noted that J would like his own bathroom, which he currently does not have. SW told the court that, while she doesn’t know if there are any rooms with ensuite facilities, “I can check it out”. She then spoke about an element of J’s behaviour that she described as a way of “managing his mental health”, and which may complicate the search for another room. Not deterred, however, SW told the court she will talk to the placement about whether they have any suitable rooms “or if they have a room where [ensuite facilities] could be facilitated”.
The Open Justice Court of Protection Project has published multiple blogs about hearings in which the person at the centre of the case becomes lost amidst a sea of rules, procedures, and legal argument[ii]. It was therefore refreshing to see SW remain laser-focussed on J, using her wide-ranging knowledge, as well as some creative thinking, to identify how best to support him. It’s worth stressing that the judge also never lost sight of J.
Finally, as the discussion turned to timetabling another hearing, counsel for the local authority pointed out that SW is part-retired and is now only working a few days a week. In fact, the day of this hearing (a Thursday) was one of her non-working days, and she had given up some of that day off in order to attend court. Counsel was requesting that any future hearings are on a date where SW will be working. As the judge put it in response, this was, “another mark to your [SW’s] commitment”, and her clerk found a date and time (Monday 9th June at 11am) when SW would be working.
As the hearing came to a close, the thought at the forefront of my mind was that, in the event I need a social worker fighting my corner, I want it to be somebody like SW.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
[i]A Transparency Order will usually have effect ‘until further order’ or it will have effect ‘until the death of P’. It is not very common at all to see a Transparency Order that combines them both, as this one does. I think this approach to drafting Transparency Orders ought to be commended because it protects the privacy of J and his family while not creating open-ended, and difficult to challenge, reporting restrictions.
“This is one of the most clear-cut cases I’ve seen. You have provided support, community and love to somebody in the times they really needed it. I want to acknowledge, on behalf of this court, the job you have done and continue to do”. That’s what the judge said to Mrs G and her husband after approving a statutory will leaving them several tens of thousands of pounds. It was a lovely hearing to watch, because that seemed very much to be true!
Many people don’t know that it’s possible to apply to the Court of Protection (under s.18(1)(i) of the Mental Capacity Act 2005) for a will to be made on someone else’s behalf, once they’ve lost the mental capacity to do this for themselves. These are called “statutory wills”.
The court can authorise the making of a new will in someone’s best interests where that person (“P”) is still alive and has not made a will at all; or when they have made a purported will but it doesn’t meet the legal requirements for a valid will; or – as in the case I observed – where they’ve previously made a valid will but circumstances have changed significantly since they did so, and there is evidence that they would have wanted to change their will if they still had testamentary capacity.
In the hearing I watched (COP 14055281 before Tribunal Judge Reeder sitting at First Avenue House on 18thMarch 2025), the judge made a final determination about a statutory will for a 97-year-old woman (“P”) who has advanced dementia and is now quite frail – and may even be “end of life”. She was represented, via the Official Solicitor by Thomas Entwistle of 5 Stone Buildings.
Mrs G, who brought the application, is the sister of P’s late partner (represented by Antonida Kocharova of 3PB Barristers). She was not a beneficiary at all in P’s existing will. It had been made many years ago (I think I heard “in the 1980s”) and it seems P had not even known Mrs G, and certainly hadn’t anticipated the important role she would play in her life, at the time that will was made.
I don’t have as much detail as I would like – and am not fully confident of the facts – because the judge has so far declined to give the parties permission to release their Position Statements to me. He has also not yet released the approved order (to which I’m entitled under Civil Procedure Rule 5.9[1]). The judge tells me he intends to consider the matter on 1st April 2025 and I will update this blog post after that – if I gain access to the documents. My account of the facts is as accurate as I can make it under the circumstances.
My understanding is that Mrs G had originally made an application to the court asking for a declaration that it was in P’s best interests for her (Mrs G) to receive a life-time gift from P of £100,000. The rationale behind the gift was because (it seemed common ground among the represented parties) there had been a “mistake” in P’s partner’s will and “his intentions were frustrated”. He had intended his sister to have a legacy of £100,000 on his death – but he had failed to sever the joint tenancy on the family home he co-owned with P, which consequently passed to P by survivorship, leaving barely anything in his estate. It’s very likely that he discussed this legacy with P (they had mirror wills) and that she was in agreement with this legacy for Mrs G.
The application for a life-time gift to Mrs G was opposed by P’s daughter and P’s daughter’s husband on the grounds that P needed the money to pay for accommodation and care. Mrs G then applied instead to be a beneficiary of P’s will. This was also opposed by P’s daughter and P’s daughter’s husband on the grounds that there is “no evidence that P wished Mrs G or her husband to benefit from her estate”.
So, the matter had now moved to a contested hearing.
Unfortunately, the two unrepresented parties – P’s daughter and P’s daughter’s husband – had not joined the hearing (conducted over MS Teams). Nor had they filed reasons for their objections to the proposal agreed by the Official Solicitor and Mrs G about how to move forward – despite a direction so to do by a deadline of around a month earlier. The judge went to some trouble to establish that P’s daughter and the daughter’s husband had been made aware of today’s hearing before deciding that there was some urgency to the application due to P’s frailty. The cost of further protracting the case, and the delay and cost of another hearing, also played a part in his decision to go ahead with the hearing in the absence of these two parties. The case, he said, needed to be resolved “expeditiously” and “in a way that saves expense” (especially given that some of that expense is borne by P herself).
According to the excellent Dictionary of the Court of Protection[2], there is, in these cases, an overriding objective to resolve the matter as quickly as possible and with minimum expense to P, and the court expects the parties to adopt a co-operative approach to resolve issues. In practice, most statutory wills are agreed between the parties without the involvement of the court.
There had been an attempt to reach an agreement out of court. The Official Solicitor and Mrs G had decided that it would be fair (and pragmatically likely to reach agreement with the daughter) if the will were to say that Mrs G should get 35% of whatever remained in P’s estate when she died, and her daughter should get 65%. The funds were said to be “depleting quite quickly” with care costs and this would amount to “significantly less than £100,000” going to Mrs G. The daughter and her husband had not agreed, and had failed to comply with a court order setting out the reasons for their disagreement.
Counsel for Mrs G set out the reasons why the court should make the statutory will in the terms proposed: P’s former partner had intended to make provision for Mrs G; Mrs G and her husband are the only people who regularly visit P; and although P is not able to understand the issues and lacks capacity to make a will now, she would want – or would have wanted – to be seen to be doing the right thing by them.
The judge accepted the evidence that Mrs and Mr G had provided “comfort and assistance, community and family” to P since her husband’s death: “outside of those who are paid to care for her – which is not intended to be pejorative, they do a marvellous job! – the Gs have been there for her, and the common thread is their commitment to P – and to P’s husband when he was alive. It is entirely compelling that [P’s husband] during his life, and P now, would want to ensure provision for them”.
On screen I could see Mr and Mrs G looking overwhelmed with relief and quite emotional at this recognition of their role in P’s life. Both were wiping away tears and smiling.
The will was approved (with the 35%/65% split as proposed) and the judge turned to costs – imposing an adverse costs order against P’s daughter and her husband on the grounds they had not taken “a constructive approach”, had adopted a “a capricious position”, and that there had been “a conspicuous lack of helpful engagement” from them. Costs will be taken from P’s estate in the first instance with recovery of those costs from the daughter’s portion of the estate when P dies, so that Mrs G is not financially disadvantaged.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
[1] “Supply of documents to a non-party from court records. 5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.” (Civil Procedure Rule)
[2]Dictionary of the Court of Protection by HHJ Carolyn Hilder and others, 2025 edition, Class Legal
By Amanda Hill, with contribution from Tim Sugdenand Celia Kitzinger, 26th March 2025
The protected party in this case, “P”, is a woman in her early twenties, with diagnoses of autism, ADHD, behavioural difficulties and limited communication skills.
Her mother took her to Jamaica in February 2023 “seemingly to evade the involvement of social care professionals”, according to the Official Solicitor, representing P, as reported in an earlier blog about this case (Removing P to another country to evade the orders of the Court). I shall call P ‘Miranda’, the same as that blog.
Over two years later, in March 2025, Miranda is still missing.
There have been attempts to locate her, including via the involvement of the British High Commission in Kingston, the Foreign & Commonwealth Office, UK Border Force, the UK Police and British Airways. Nobody admits to knowing where she is – except for two family members, both believed to be with her: her mother, also a party to this case, and one of Miranda’s sisters. (Another of Miranda’s sisters remains in the UK.) Her father says that he has had no contact with his wife or with Miranda and the sister who is with her since the summer of 2023, and he does not know where they are. Emails bounce back and texts are unanswered.
Now the Local Authority, Essex County Council, has applied to conclude proceedings because, they argue “continuing proceedings would be futile and a disproportionate use of public funds”. The police would be notified if Miranda and her mother returned to the UK, because Essex Police are treating Miranda as a missing person.
In November 2024, there was a meeting between the Local Authority and Miranda’s legal representatives, and subsequent agreement to conclude proceedings. An application was made to the court dated 20th February 2025[1]. Counsel for the Local Authority also stated in his opening summary that P’s father supported the conclusion of proceedings.
A draft order was sent in the expectation that the decision would be made “on the papers” i.e. without a hearing. But this was refused by the court and a hearing in this case (COP 14027239) was listed for one hour at 10.30am on 19 March 2025, before Mr Justice McKendrick, sitting at the Royal Courts of Justice.
Two of us observed the hearing in the morning (myself and Tim Sugden) but the morning hearing was adjourned after an hour or so, until 3pm in the afternoon, and I wasn’t then available to observe it. Tim Sugden was able to do so and emailed a Hearing Feedback Form to the Open Justice Court of Protection Project which I’ve used, with his permission, to report on what happened in the afternoon.[2]. After the hearing, Celia Kitzinger requested and obtained the approved order (to which we’re entitled under Civil Procedure Rule 5.9 (“Supply of documents to a non-party from court records”, which reads: 5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.
The morning: Injunctions, penalties for contempt of court and next steps
In this remote hearing, conducted by MS Teams, the Local Authority was represented by Jim Hirschmann, Miranda’s father by Rose Harvey-Sullivan and Miranda by Keri Taylor (via the Official Solicitor). The father also attended the hearing and was on camera but he did not speak. The mother was not in court and the judge asked if she was aware of proceedings: that’s when it became obvious that nobody knew where she was or how to contact her.
The main deliberations of the morning were whether the judge would grant the application to conclude proceedings. It was clear to me from early on that he would not. Counsel for the LA made submissions in favour of concluding proceedings. During the submissions, the judge asked, to my mind, a key question: “Is it the LA’s position that it is in Miranda’s best interests to remain in Jamaica?” to which the LA replied that it was not, In the LA’s view, it is in Miranda’s best interests to return to the UK, to have a capacity assessment and for the public bodies to gather information to enable them to fill in gaps in the evidence. The judge then asked, “So, it is the LA position that Miranda should return?” – to which the answer was “yes”.
Counsel for Miranda’s father then submitted that he didn’t know where his wife and daughters were and he was unable to contact them. The judge asked counsel “what does he think Miranda’s best interests are?” to which the reply was that “he thinks that her mum will look after her…..he doesn’t agree with going against the court but he believes that Miranda is safe and cared for by her mum.”
In response to this, the judge stated that someone (meaning, the mother) has decided that Miranda should have no contact with her father and “this causes me concern”. Counsel for the father replied that it was “unusual” and the judge retorted “that’s an understatement”.
The judge wanted more information about emails and text messages that Miranda’s father had sent to his wife. This is when I started to get the impression that the judge thought the father knew more than he was letting on about where Miranda was. He asked for information about the house the father was living in and the split of ownership with his wife. The reason for these questions became apparent later on.
Counsel for Miranda via the OS submitted that the OS was in an “invidious position”. She had been appointed as Miranda’s Litigation Friend in December 2022 but had never been able to meet her. She referred to “closed material”[3] relating to Miranda’s return but “that horse has bolted”. It seems that documents had been served but the father’s counsel had been alerted despite the intention to exclude him from knowing about this. The OS was “neutral” as to whether the case should be concluded, but mainly because she couldn’t advance a positive case.
Counsel for the Official Solicitor did suggest further enquiries that could be made, including whether P had in fact returned to the UK unbeknown to the authorities. These included seeking information about whether Miranda’s mother was claiming benefits in the UK, whether she had a bank account, whether Miranda was registered with a GP, and whether estate agents had been contacted about the sale of the house Miranda’s father was living in (which he co-owned with his wife). The position statement also suggested that Miranda’s father could be directed to “file further evidence” about what he knows about their whereabouts.
The judge then set out his decision. He stated that he had only received the bundle of 700 pages at 7.30am that morning and a one-hour hearing was not enough to go through all the evidence. He raised potential safeguarding issues. Back in 2022, Miranda was found to have bruises on her body and as she is non-verbal she could not explain how she had come to have them. The judge described the family as “not co-operative” and her mother had taken her to Jamaica before an assessment as to her capacity to make decisions could be carried out.
Mr Justice McKendrick continued by saying that Miranda was a British citizen and “remains extremely vulnerable”. He was satisfied that the court retained jurisdiction. He found it “curious” that Miranda’s own Litigation Friend “does not know where she is or what steps have been taken to locate her”. He said: “I have little information regarding the up-to-date circumstances of Miranda”, including access to health care and medication and where she is living. He found that it was “inconsistent” with Miranda’s best interests to conclude the hearing today.
He directed that Miranda’s father must file a “very detailed” witness statement about the removal in January 2023 of Miranda from the court’s jurisdiction and what has happened since. He ordered that the witness statement must include a chronology of contact with Miranda’s mother, including emails and texts sent. He directed Essex County Council to make urgent further enquiries to try to locate Miranda. He would not close the proceedings when there were “clear avenues to pursue”.
Contempt of Court
Another judge at a previous hearing in this case on 15th September 2023, Mr Justice Williams, had issued an order saying that Miranda’s mother must return Miranda to the family home. He attached a penal notice meaning that if Miranda’s mother disobeys, and is found as a result to be in contempt of court, she could be imprisoned, fined, or have her assets seized.
One issue for the judge at this hearing was to establish what has happened in relation to this (and other) orders already issued in the case so far. He wants to try to establish if Miranda’s mother has been served with the order of Mr Justice Williams – and if so, and if she is in contempt of court, one possible penalty is a sequestration order against the 50% share of the property that she co-owns with Miranda’s father (the house he’s currently living in, worth several hundred thousand pounds). If the mother is found to be in contempt of court, she could lose her share of the property she owns. He stated that it is open to the court not only to send her to prison, but also that her assets could be sequestered. He said he was “not making a threat” but it was his “obligation” to point out the possible consequences of non-compliance with court orders.[4]
The judge’s view was that if Miranda’s mother was aware of the court proceedings, she should also be made aware that there were “repercussions” of not complying with judicial orders emanating from them. He was not going to say there would necessarily be an order for her to return Miranda to the UK, but the court wants to know where Miranda is and how she is living.
Next steps
The judge listed an in-person hearing at 12pm, Friday 28th March. He stated that Miranda’s father “must” attend in person as the judge may need to hear evidence from him. He asked Miranda’s father to take steps to contact Miranda’s mother because “I want [Miranda’s mother] to know that the OS must have communication with Miranda”. He wants all the parties to take steps to locate her.
The afternoon: Important transparency issues
After just about an hour, Mr Justice McKendrick adjourned the hearing until 3pm so that a draft order could be drawn up. Tim Sugden reported back on what happened when the hearing reconvened:
“When [the hearing] resumed, counsel for the applicant ran through the draft order that had been drawn up in the break, and the judge added / rephrased some sections in terms of what he expects the parties to do / write before then. That includes full details of whether (and if so, exactly how) the previous Return Orders were served on P’s mother; and the views of all parties as to whether (1) a further Return Order should be issued; (2) whether P’s mother is in contempt; and (3) whether the court has “continuing jurisdiction” in the matter, i.e. has P, by virtue of presumably residing in Jamaica for two years, become “habitually resident” there?
Then OS counsel requested that the hearing become a private one from which observers would be excluded, to discuss a particularly sensitive matter that “lay outside the terms of the TO” and which the other counsel were all aware of. The judge asked for submissions on this request – but I’m afraid I was a bit flummoxed at this sudden turn of events and didn’t know quite what to say in response, and so he went ahead and asked me (the only observer still standing by that stage, as it were) to leave, which I did. I was told that if the ‘public’ hearing resumed after the ‘private’ bit, the court staff would let me know so I could rejoin, so I hung around for a while … but heard nothing further after a half-hour or so, so disconnected and went off to do other things!”
I really don’t understand what happened here. In my opinion, if the Transparency Order was not drafted in a way to protect Miranda’s privacy, due to these “sensitive issues”, then it should have been changed. Neither Tim nor I were issued with a TO before the hearing started.
When the hearing started, there seemed to be some confusion about whether there even was a TO. But one was then located in the court “bundle” and emailed to both of us during the hearing. It was the sealed TO made by HHJ Hodges sitting in Chelmsford Justice Centre on 11th January 2023, and it’s in the standard form. The “Information” we are prohibited from reporting is set out in §6:
Tim and I are both experienced observers. We know that we could be found in contempt of court if we report matters which we are forbidden to do by the TO and we both have experience of the court going out of its way to permit us to observe hearings about sensitive matters by drawing up careful reporting restrictions to protect Miranda’s privacy and any risks of harm.[5]
In my opinion, if there are sensitive matters which should not be reported, then they should be considered in advance and the TO changed accordingly. It should not automatically mean a hearing is made private. That is not open justice. Also, Tim, like me, is not a lawyer. We are just ordinary members of the public. It is very hard for us to make “submissions”. I think this should be recognised by the court. I now know that I should be prepared more for this, for example to ask that public bodies be allowed to be named. But like Tim, I would have been “flummoxed” if I had been there too.
I don’t know whether the hearing on 28th March 2025 will be in public or not – or whether a video link for observers will be available if it is heard in public. I hope so, as I would like to observe to see what happens and be able to report on it.
Mr Justice McKendrick was clearly frustrated that more had not been done since 2023 to locate Miranda. I wonder if things will change before the next hearing.
The approved Order by Celia Kitzinger
The approved order (dated 19th March 2025) says that the mother “must attend the next hearing at 12pm on 28th March 2025” before McKendrick J (either remotely or in person) and that if she doesn’t, she may be held in contempt of court and may be imprisoned, fined, or have her assets seized.
The father, must also attend the next hearing, in person, and must serve in advance a signed witness statement providing a clear chronology of his contact with his wife – including texts, WhatsApp messages, social media, emails, written correspondence, and phone calls, and any contact details he has used, and details of any means he believes the other parties could use to contact her. He must also provide information about the ownership of the property he jointly owns with his wife (and the equity in it) and his belief as to where his daughter is currently living.
Essex County Council must also serve a witness statement setting out its belief as to where P is living, why it is in her best interests to return to the UK, and the steps it has taken to ensure that the mother has received (in such a form as to “effect service” upon her) the previous injunctive orders, the order concerning today’s hearing and the approved order resulting from it. The parties are also asked to agree a note in respect of the law relating to (i) the legal test for withdrawal of proceedings and (ii) the Court of Protection’s jurisdiction when there has been a wrongful removal of P from the jurisdiction.
The order does not record that part of today’s hearing was held in private and that a public observer had been excluded by the court. A note on the face of the order simply records “THESE PROCEEDINGS ARE IN PUBLIC BUT SUBJECT TO A TRANSPARENCY ORDER…” (capitals in original) and one of the recitals records that the parties had been given “… permission to share their position statements with observers who attended this public hearing”. This implies the whole hearing was public – but according to Tim Sugden it wasn’t. This does not seem accurate, and I’ve asked for information to whether or not there is a separate order relating to the private part of the hearing. There is no indication in the order that the next hearing will be other than public in its entirety.
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 also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)
Tim Sugden retired in 2022, after a career in children’s services, to devote his time to providing accommodation and support to refugees from Ukraine.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
This blog was edited on 31st March 2025 to correctly state that the meeting in November 2024 was between the LA and P’s representatives. It was further edited on 24th July 2025 to comply with (retrospectively) with a transparency order varying the initials to be used in reference to P and her parents.
Footnotes
[1] This information is taken from the Local Authority’s position statement. I asked the judge to grant permission to counsel to share their position statements with me, which he did after the hearing, and all three counsel shared them with me. I am grateful to both the judge and counsel for responding positively and quickly to my request.
[2] We encourage other observers, especially those who don’t want to write blogs, to complete these Hearing Observation questions too – they are massively helpful to us, as this blog post demonstrates. You can find the form on our “Observer Resources page.
[4] We have blogged about many different contempt of court hearings, including: “A committal hearing to send P’s mother to prison”; “Committal hearing struck out and dismissed for procedural defects”. It’s relatively rare for financial penalties to be imposed on people found to be in contempt of court: a recent example is the unpublished judgment in Norfolk County Council v Caroline Grady [2025] in which Arbuthnot J imposed a fine. We hope to be able to blog about this shortly.
[5] For example, I am bound by a very detailed TO forbidding the reporting of certain information about the protected party in another hearing I observed, (The patient with no friends or family: A challenge for best interests assessment) and Tim observed and participated in a hearing wholly devoted to working out reporting restrictions such as to permit public observation or and reporting on a case before HHJ Hilder, which also involves a committal hearing (ongoing – blog to follow).
I first came across this case on 9th October 2024 when I was looking for a hearing to observe. As frequently happens in the Court of Protection, the first one I found had been vacated (meaning it was no longer going to take place), so I’d requested a link for a second, and when this was also vacated, I started to feel the familiar tug between the desire to make use of the afternoon I had set aside to observe a hearing and the recognition that I was likely to be adding to the workloads of already overstretched court staff with repeated emails requesting links. I would quite possibly have given up, had not a particularly helpful court clerk in the Judicial Support and Listings Team at First Avenue House let me know that there was another that would be going ahead. That turned out to be COP 14155095 HMB – and this blog post covers two hearings: one on 9th October 2024 and another on 4thFebruary 2025.
First Hearing: 9th October 2024
I received later that day a link to the hearing and a copy of the relevant Transparency Order and was able to sign in and be admitted to the virtual waiting room shortly before 2pm when the hearing was due to begin. Counsel for the Official Solicitor representing the ‘protected party’ (referred to for the purposes of this case as ‘HMB’) – Scott Storey – and the barrister representing the Local Authority (the London Borough of Bromley) – Kristina Hopper – were also in the waiting room, along with HMB’s mum and social worker.
The hearing began with the judge (District Judge Batten) entering the courtroom at 2:11pm. She began by noting the presence of three observers – two online and one in the courtroom – and asking if there were any questions concerning the Transparency Order to which the proceedings were subject (there were none). She then asked Counsel for the Applicant (Scott Storey) to provide a brief summary of the background of the case so far.
I learned from this that HMB is a woman in her early thirties living in the South-East of England. She has a diagnosis of learning disability and is said to be probably autistic. She also has diagnoses of “possible psychotic disorder” and anxiety disorder (i.e. agoraphobia/panic attacks)[1]. When she becomes anxious, she is said to “display some challenging behaviours”. HMB communicates verbally and “is able to make her views, wishes, and aspirations known with staff on simple matters” – e.g., choosing what to eat or wear and letting staff know if she is feeling unwell, although she is said to require “support with all her daily living activities”.
The case before the court is an objection by representatives of HMB to a Standard Authorisation under the Deprivation of Liberty Safeguards (DoLS) – commonly known as a ‘s.21a challenge as it is brought under s.21a of the MCA 2005. This seems to be the culmination of a series of breakdowns in care and accommodation, which have involved HMB being moved repeatedly in a period of only a few years following a 5-month hospital stay that itself resulted from a “nervous breakdown” following a change in accommodation in late 2022. The ‘placement’[2] to which she was discharged from hospital in March 2023 broke down after only a few days as several incidents led to the home manager noting that HMB was at this time “a high risk to herself, other service users, staff, and members of the community”. A month’s notice was served in April 2023, but in what may have been a foreshadowing of challenges to come, the deadline for HMB to move out was extended by a further month “for an alternative placement to be sourced”. She then moved to her current home in July 2023.
The case is concerned with two tasks, specifically: (1) to identify appropriate accommodation and care package for HMB, and (2) relatedly – to ensure access to appropriate “care and therapeutic support” so she “doesn’t suffer” (as the judge phrased it) in her mental health and quality of life, while (1) is ongoing. The court heard evidence of ‘suffering’ in a “rough” attendance note following a visit to HMB on 3rd October 2024 by the solicitor representing her (Claire Langford). The note described HMB’s “presentation” during the visit as “not ideal” and indicated that “limited discussion” had taken place. During this discussion, HMB indicated that she is unhappy and bored, and that she wants to move – information that was received gratefully by the judge who affirmed the importance of hearing HMB’s views, “however rough” the form might be.
Progress in identifying alternative provision for HMB has been far from ideal. Investigations prior to the hearing on 9th October 2024 had included a report by an independent social worker suggesting options of residential or supported living services, or an individual flat with a package of bespoke care. A key priority was identified as being geographical location so that HMB could be near her mum. However, when the judge came to enquire as to what progress had been made in locating an appropriate housing and care, she was demonstrably less than pleased – pointing out that the case is now one year on from initial application and asking, “Why does it take so long?”. She made an Order that before the next hearing, the Director of Adult Social Care should file a witness statement outlining what care and home have been identified; and if this has not been achieved, explaining why not.
Reasons were given for these delays, which seemed to fall into two categories: 1) Counsel for the Local Authority pointed to a lack of appropriate results from the “extensive placement searches” carried out by the Local Authority placement team – who were “on it”, but unfortunately “not much has returned”; and 2) Arising from probative questioning by the judge, a lack of clarity among the parties about what sort of placement or location is in HMB’s best interests.
The judge also heard from HMB’s mum, who pointed to the impact on her daughter of the current situation. She said that she sees the judge “making things happen” (via directions) but that HMB “is the one missing out”. Her daughter used to want to go out of her home but now finds it too overwhelming and “overthinks”. HMB’s mum explained that her daughter “needs people to keep trying” when she refuses to leave the home due to anxiety, rather than simply giving up after the first failed attempt.
Second Hearing: 4th February 2025
At the second hearing, there was new counsel for each party: HMB was represented by Stephen Williams (via the Official Solicitor), with Nikita Pierpoint appearing for the ICB (which had been joined as a party following the previous hearing). I was unsure about representation for the Local Authority.
There is still no ‘placement’ identified for HMB, and her mum reports concerns about further impact of the delay and inappropriate home and support on her mental health and levels of anxiety. Williams was able to provide an “update of sorts” – as apparently HMB’s mum has been in contact with a potential new placement, which she has visited. The manager is “on Annual Leave until next week” but then an assessment can begin as to HMB’s suitability for the place.
The judge was very critical of various failures to comply with Orders made at the previous hearing. It transpired that the Director of Adult Social Care had failed to provide a witness statement in compliance with the Order made on 9th October. In response to an attempt to account for this, she responded, “That the Director of Adult Social Care is new in-post is not my concern” and “I’m making these Orders not for my own amusement but for P” – adding that any further such Orders “may have a penal notice attached”. And in response to the failure (again) of parties to hold a Round Table Meeting prior to the hearing, she exclaimed, “I’m completely at a loss to understand why a group of professional people can’t agree a date for a [meeting]”.
The ICB was also a focus of the court’s displeasure. They had been joined as a party at the previous hearing though it was clear they were dissatisfied with this and had initially asked to be discharged, with their Counsel subsequently indicating that they were “led by [other] professionals” and viewed the Local Authority as the “lead authority”. The judge admonished them, saying she expected them to be playing a “key role” rather than a “remote – ‘I’ll send you a list’ – role”. She ordered them to attend the next hearing in person.
In conclusion, an Order was made retaining the ICB as a party (with the caveat that after the next hearing they were not required to attend if there was nothing specific for them to do). The 12 months of the DoLS Standard Authorisation was confirmed as still having time to run. The court wants to see improvement in record keeping regarding HMB’s daily care and activities and the manager is to liaise with the social worker to ensure this. The inadequate explanation for lack of input by the Director of Adult Social Care was noted, with the judge emphasising that hearing from them was “urgent”. A detailed witness statement was ordered to be filed by 28th February, with HMB’s mum being permitted to file a statement in response by 7th March if she wishes. The judge also hoped that HMB’s solicitor could visit her and file a note by 7th March as HMB’s views are “crucial at this point”. A Round Table Meeting must take place during the week commencing 14th March with a date to be agreed immediately after this hearing, and “the court will not be impressed if you fail”. A further hearing will take place as soon as possible after 24th March 2025 with the court clerk notifying the parties of the date. This will be a hybrid hearing with all parties except HMB’s mum being required to attend court in-person.
Reflection
As with any member of the public who observes COP proceedings, I bring to my understanding and interpretation of any hearing relevant aspects of my own experience and identity – notably as a disabled activist with complex health needs who receives social care. In this case, the seemingly glacial slow speed of progress in identifying appropriate accommodation and care for HMB – and the related apparent lack of such resources seemed to mirror my own experiences of delayed assessments followed by lack of available services to meet assessed needs. Similarly, I have experienced the collapse of care packages as providers “couldn’t meet my needs” causing me to empathise with the reported circumstances preceding HMB’s admission to hospital. It can feel as though a care package is both the elusive pot of gold at the end of the rainbow and a house of cards just waiting to fall down at the slightest breath of wind.
What else stood out to me was how a significant part of each hearing was taken up with the judge asking probing questions to establish what each party believed was being worked towards for HMB – often revealing misunderstandings or lack of certainty among the parties and their legal representatives. It seemed as though what was going on between hearings was a game of ‘Telephone’ in which objectives became distorted over time and when passed between parties and colleagues. And the failure of “professional people” to organise a pre-hearing Round Table Meeting that so exasperated District Judge Batten seems to have exacerbated further the need to use court time for this case management function.
As someone who must also rely on such “professional people”, it was difficult to watch this play out in court. Those of us for whom health and social care services mediate access to the fundamental safety, dignity, and quality of life that many people take for granted need those professionals to work and communicate effectively, because there is so much resting on it for us. Such professionals have accepted a role in which they take on the responsibility that comes with the trust we place in them. We have no choice but to place our faith in others to facilitate fundamental aspects of our personal and social wellbeing – and that is hard enough – but to see the efforts of those individuals and organisations in whom we must place our faith falling short with such alarming regularity can be galling.
While I noted several aspects of ‘overlap’ or resonance between my own and HMB’s circumstances, observing these two hearings also prompted me to reflect on a key difference between her situation and mine – i.e., the involvement of the Court of Protection. The COP is constituted through the MCA 2005 as the arbiter of disputes regarding mental capacity and best interests, but what I saw in these two hearings led me to consider further facets of the court’s role in terms of case management and ‘advocacy’.
There were several examples across the two hearings of the court managing the ‘case’ – which importantly means not only the legal case before the court, but the health and social care circumstances out of which this legal case has developed. The use of Court Orders to compel a Director of Adult Social Care to account for a lack of progress via a witness statement (from which the title of this post is taken) was particularly powerful given the threat of a penal notice attached to future Orders in the event of (further) non-compliance. This, of course, highlights a key aspect of what makes the COP’s involvement unique – it comes with the power to hold those who fail to do what it has ordered them to do (by the deadline it has set) in Contempt of Court. I have had (and continue to face) many situations in which those involved in my care have attempted to compel “professional people” and public bodies to do what they should be doing to secure my care package but have failed to deliver. But no one advocating for me in this way has ever had the authority to promise a penal notice in the event of future non-compliance. This seems to be a distinction that differentiates health and social care cases that become ‘welfare cases’ before the COP from those that don’t.
This, in turn, points to another feature of the court’s function that I observed in these hearings: i.e., how it goes about advocating for P’s ‘best interests’ alongside determining what these should be. As well as emphasising the importance of hearing P’s views (via her solicitor’s attendance notes), the judge was repeatedly explicit about her concerns for HMB’s “quality of life” and access to therapeutic input while the search for appropriate accommodation and care is ongoing. As I’ve indicated, the judge also expressed surprise, frustration, and exasperation throughout at the lack of progress and failure of “professional people” to comply with Court Orders and to make progress in identifying appropriate accommodation and care for HMB. It may be said that no amount of angry discourse directed at public bodies during COP proceedings is of itself going to make a material difference to P’s circumstances – in HMB’s case, she still lacks the accommodation and care deemed to be in her best interests. But as I observed these hearings, I reflected on the times when I have been let down by health or social care professionals who have failed to do what they promised. In my experience of such situations, it isn’t only the material circumstances that have a deleterious impact on one’s wellbeing – it is the feelings of powerlessness, invisibility, and ‘voicelessness’ that come with such circumstances. Although the COP may not be able to compel a public body to provide facilities or services to meet the needs of a disabled person (see further: the Supreme Court case of N v ACCG & Ors [2017] UKSC 22), I observed the judge’s surprise and exasperation at the lack of progress in HMB’s case as performing a function of delegitimising and ‘calling out’ the situation. When one finds oneself repeatedly let down by those on whom one is forced to rely, it can begin to feel as though this is all one is entitled to expect – as though such experiences are to be deemed socially acceptable. While discussing my experiences with others leads me to suspect that the majority of society is simply unaware of how health and social care bureaucracy works (or doesn’t work), it can feel as though in failing to exhibit surprise or disapproval at failures of care, society legitimises the situation. Hearing such disapproval from someone exercising the authority of the court (in open court) felt like a powerful counter to such tacit social legitimisation that I wish more of society could (or would) hear.
Observing these two hearings caused me to feel empathy and deep anger that HMB is being failed by the bodies (and ultimately the State) in whom she, and those who care about her, should be able to place their trust. But I also had cause to reflect on the ‘advocacy’ potential to be found in the role of the COP in ‘welfare cases’ – and how this potential might be harnessed further in the pursuit of social justice for disabled people. Of course, I think the fact that this role is exercised in public is fundamental to its impact, and the first step is for more disabled people, and our allies and advocates, to observe COP hearings – to bear witness when the court exercises such ‘advocacy’ and to seize its momentum for social change.
Gill Loomes-Quinn is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project. She can be found on Twitter and Bluesky @GillLoomesQuinn and on LinkedIn here.
[1] In drafting this post, I have drawn on position statements in addition to my own notes from the two hearings I have observed in this case. Given the general prohibition of recording of court proceedings, any quotes included from my observations are as accurate as possible but should not be assumed to be verbatim.
[2] I noted that the term ‘placement’ was used throughout both of the hearings I observed in this case (and in the relevant position statements) to denote accommodation either assigned to or sought for HMB. I know that of course the use of such vocabulary is ubiquitous in professional discourses concerning disabled people – particularly those with learning disabilities. And some may seek to justify its use (as opposed to more ‘everyday’ terms – e.g., “home”) to indicate the ‘specialist’ nature of such accommodation. However, this brought to mind for me the ‘othering’ that is central to how disabled people and our life experiences are typically portrayed in and perceived by wider society. I had cause to wonder if/how reference to the search for a “home” for HMB (with the attendant connotations of privacy, safety, security, comfort, and family – as well as familiarity for professionals themselves), rather than a “placement” (with implications of non-domestic clinical sterility, and almost certainly distinct from the domestic arrangements of the legal, health, and social care professionals involved) may have made a difference to the case, or professional attitudes to it – both inside and outside of the courtroom. For some more examples of the harmful language used by professionals in relation to the lives of disabled people, check out this short video by Rightful Lives.
I was excited to be travelling to London to observe an in-person hearing at the Royal Courts of Justice (RCJ) as part of my research with Cardiff University.
This would be my third time observing in person at the RCJ and I was beginning to feel as though I knew what I was doing and how things worked. The evening before, when the listings were published, I’d identified an 11.30am hearing (COP 14070782 on 8 October 2024) before Mr Justice MacDonald in Court 39, which I knew was in the Queen’s Building, the newer construction behind the Gothic splendour of the old building that always appears in photographs of the RCJ.
I arrived in good time at 9.50am. It was just as well, because I ended up queueing behind a school party going through security just ahead of me. The security staff didn’t seem as ‘fierce’ as they had done the day before when I was there, and were waving people through saying “Morning” and “Have a good day” as they checked them in.
I double-checked the Daily Cause List printed out and pinned up in the glass cabinets in the middle of the impressive Grand Hall. I could see that the listing for the hearing I wanted to observe was still the same – it was in fact the printed internet page from the evening before, timed at 19.01:
I approached the enquiries desk and said that I wanted to observe the hearing in Court 39. Straight away, the member of staff helpfully gave me the map to show me where the courtroom was. There was no suggestion that it would be in private or that it wouldn’t be happening as listed.
After a leisurely coffee in the on-site café, taking in my surroundings, I walked over to the Queen’s Building.
At around 11am, there were a few people around. I looked at the Daily Cause List in front of the court room door to triple-check the hearing was going ahead in that room, but the only list on display was for hearings before Mr Justice Poole from the week before.
The lights were on in Court 39 and I could see somebody tapping away on a computer in front of the judge’s bench, so I assumed that that was the judge’s clerk. I could also see one man in a consultation room next to Court 39, with the door open. My plan was to wait and see what happened around 11.30 (when the hearing was due to start), and follow other people into the courtroom when people started to move in. There also were a couple of people just in front of the court room who I assumed were waiting for the same hearing that I wanted to observe – but they left shortly afterwards so obviously not – and as time went on there were fewer people in the lobby area in front of the court rooms.
I sat and waited.
When 11.30 came and went I assumed that the previous hearing before the same judge was running late. The list told me that there was a 10.30 “urgent” hearing (not a Court of Protection one) by MS teams. It’s not unusual for hearings to run over their allotted hour and for subsequent hearings to begin late, so I just kept an eye on what was going on inside the court room. There were no signs of an in-person hearing going ahead.
At 11.38 I checked the listing using my phone to see if the listing had changed but it hadn’t. The 11.30am hearing was still there and it still said it would be heard in open court in Court 39.
Nobody went into courtroom 39 and nobody came out of the courtroom to say what was happening with the hearing.
At 11.43 I saw the judge in there, along with the staff member. The judge was sitting at the bench looking at his computer.
By 11.46 the judge had gone ,but the staff member was still at her computer. I felt very uncertain as to what I should do. I kept looking through the glass panel window on the door. Should I go in and ask what the situation was? But I was worried that the urgent hearing from 10.30am (a private family one) might still be going on, and that the staff member would be involved with that.
At 11.50 the judge sat back down at the bench but again did not stay long.
At 12pm I decided to email the RCJ staff to tell them I was waiting to observe the Court of Protection hearing in person and asking what the situation was:
By 12.10 there was still no news or signs of movement. Nobody was around apart from the people in the consultation room nearby behind the (now) closed door. I was feeling very frustrated and a bit stupid. I wondered again whether I should go into the courtroom and ask the staff member at the desk what was happening. I knew the hearing was not likely to continue past 1pm (when the court usually breaks for lunch) and time was ticking on.
By 12.19 I hadn’t had a reply to my email, so I rang the RCJ number published on the Open Justice Court of Protection “Featured Hearings” page. The phone was answered quite quickly and I spoke to a staff member and gave her the hearing details. She checked and said ‘they should be in court’. I told her that I was sitting in front of the court room and that I couldn’t see anyone in the court apart from a member of staff sitting at her computer. She put me on hold for a few minutes and then she came back, apologizing for keeping me waiting. She said that she had contacted the court associate who had told her that the hearing had been held remotely by MS Teams that morning. I’d spent 7 minutes on the call:
So, I had missed the hearing
Having gone specifically to London to watch COP hearings, spending the whole morning at the RCJ and having sat outside the court room for an hour, I couldn’t believe it that this had happened. I felt so foolish: it was such a waste of my time and a missed opportunity for open justice.
At 12.30 I left the building without having watched a hearing, feeling very dispirited about the whole experience.
What could have been done to support transparency?
As co-director of the Open Justice Court of Protection Project, Celia Kitzinger wrote to the court afterwards to find out what had gone wrong and received the following reply:
Note: I did not (as the email says) “attend the public counter” about my concern – I’d phoned; and I think on the account given, a hearing did take place briefly to approve the agreed order (agreed orders are often approved “on the papers” and the hearing is vacated but that doesn’t seem to have been the case here). But these are issues in passing, and not the key point.
A number of things could have been done in this situation.
The online listing could have been corrected promptly, but only if someone – the judge or judge’s clerk – had checked the list, seen it was wrong, and told the listing team that it was wrong and asked them to correct it.
The paper daily cause list outside the courtroom could have been updated. By coincidence, I had booked a tour of the RCJ that same afternoon and the guide said that the printed paper notices (at least outside other courtrooms) were frequently annotated in pen so that the public were kept up-to-date. This would have required the court staff to look at the list and realise that it was wrong – which they would have known, obviously, since they were managing a remote hearing and the list said it was an in-person hearing – so court staff were in a position to do this.
A member of staff could have checked the corridor outside the court to see if anyone was waiting to observe as a consequence of the case having been wrongly listed and invited me into the courtroom, notwithstanding the fact that it was now a remote hearing (and a very brief one). This is what happened in another case we’ve blogged about: a hearing was changed from being in-person to remote and an observer who had travelled to observe the hearing in person was invited into the courtroom to observe the judge conducting the remote hearing (see Observing a remote hearing in court with the judge). In that case, it seems that the hearing had also been wrongly listed as “public” when in fact it had been intended to hear it in private. Displaying a firm commitment to transparency, the judge (HHJ Hilder) said: “Since Professor Kitzinger has taken the trouble to come to court,I made a Transparency Order and we are sitting in public” – and, “just to clarify,” she added (addressing the observer) “you would have been welcome to attend if it had been a private hearing”.
Transparency is in peril when it’s made so challenging for would-be observers to access court hearings. If errors and last-minute changes are inevitable (and perhaps some are), then at least steps should be taken to facilitate observers, either by provision of remote links to in-person hearings, or by admitting observers to otherwise empty courtrooms where judges are conducting remote hearings.
The judiciary, lawyers and HMCTS staff need to work together to avoid errors and to improve procedures to ensure that we’re not excluded and left feeling so dispirited and disempowered about open justice.
What was the hearing about?
The point of my going along to the Royal Courts of Justice that day was to observe justice being done, in person, and report back to the public on what I saw. I can’t report on the process, but I do know a bit about what happened because I asked the judge for the approved order from the hearing and eventually (two months later) received it. This means I can provide an update on what’s been happening in this case.
Another observer (Celia Kitzinger[1]) had watched – but not blogged about – a remote hearing in this same case back on 10th July 2023, also in the Royal Courts of Justice, but before a different judge (Mr Dias KC).
At that point (July 2023), the protected person, LO – described as “a 17-year-oldwith significant impairments” – needed psychological support but there were difficulties in obtaining this and the parents’ lawyer (Ben McCormack) sounded very frustrated: “Why are we sitting here time and time again to ask for directions: the psychologist left employment and it’s taken us six months to find another psychologist and get the authorities to agree to pay for one!”. He said – rehearsing a familiar refrain in the Court of Protection – “this litigation is characterised by agreement, but also by delay”.
The parents were also trying to get the authorities to plan ahead for when LO turned 18 in the course of the coming year, at which point he would transfer to adult services. Would LO qualify for Continuing Health Care? Where would LO live?
Counsel for LO’s parents said: “The agreement is that LO will live at [X Placement] in [City] and it’s likely everyone agrees he should live there after he turns 18 – but it is absolutely mission-critical that [X Placement] starts that intensive hefty process to become registered with CQC”.
So, what’s happened with the “mission-critical” CQC registration?
The approved order from the hearing I failed to observe (so three months later) says that LO’s support provider “remains unregistered with OFSTED” and that LO’s placement has “informed [the local authority] that they will not be pursuing CQC registration” and it “is therefore also unregistered with the CQC”. The landlord has also served notice. The public bodies[2] were looking for a new place for LO to live long-term.[3] This situation has serious implications for LO (and his family) and is a legitimate matter of public interest. This is exactly the kind of thing we need to be reporting from the Court of Protection.
At the hearing, the judge authorised the continuing deprivation of LO’s liberty as being in his best interests, reallocated the matter to another judge (Mr Justice Poole), and ordered the local authority to come up with a list of options for – and best interests analysis of – different care providers and placements, plus if relevant a transition plan and a care and support plan. There were also other issues relating to internet use and contact, plus the local authority was required to address “whether, and to what extent, external support may be required from a behavioural specialist and/or psychologist”.
Thematter was listed to come back to court on the first available date after 16th December 2024 before Mr Justice Poole.
The next time we spotted it in the listings was 12th February 2025, so that probably was the first available date. It appeared as “in Court as in Chambers” which is a fancy legal way of saying “in private”.
We were puzzled about why this hearing had been listed as private, given that both the hearing Celia had attended remotely, and the one I’d tried to attend in person, had been listed as “public”. When we asked about this, we were simply told this hearing had been “vacated” (i.e. it wasn’t happening), so we are none the wiser about whether (and if so why) the case is now being heard in private. It might be another mistake – or it might not.
We also don’t know why the hearing listed for February 2025 didn’t take place. It might be because everything has been done in accordance with the judge’s directions and LO is settled in his new home with the support of a psychologist, and all of the parties have agreed that a hearing isn’t needed. Or it might be because the case isn’t ready to be heard again – because (for example) the local authority hasn’t yet assembled a list of options for places where LO could live, or has not worked out agreement to funding them, in which case there would be no options for the judge to consider and make decisions about in LO’s best interests. We just don’t know. We’ll be keeping an eye out for this case coming back to court in the future.
This blog illustrates the difficulty of tracking hearings of cases we’re interested in across the months and years that they’re before the court and, in particular, the challenges we face when hearings are wrongly listed as “in person” and no steps are taken to correct this.
Transparency requires the judiciary, lawyers, and court staff to be alert to the possibility of would-be observers at their hearings and proactively to facilitate our attendance.
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’s a family member of a protected party in a Court of Protection case and acted as a Litigant in Person. Amanda is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social)
[1]Thank you to Celia Kitzinger who wrote the paragraphs about what happened in the July 2024 hearing and to Daniel Clark who raised concerns about the “private” listing of this case in February this year.
[2]Celia Kitzinger has no record of having received a Transparency Order for the hearing she observed on 10th July 2023 (despite emails asking for one). I was sent the approved order – which includes lots of names of both public bodies and individuals involved in this case – but no Transparency Order. So this blog post has been written without any injunction concerning reporting restrictions having been served on us at any point. In accordance with the standard restrictions imposed by these Orders, we have not published P’s name, the name of his family members, anyone’s contact details, or anything likely to identify any of these people or where they live. We have also – to be on the safe side – chosen not to name the applicant local authority or the respondent integrated care board – those these should be (and normally are) in the public domain. We have asked for a Transparency Order and will amend this blog post as necessary if or when we receive it.
[3]The blog post cited earlier (Observing a remote hearing in court with the judge) is also about lack of progress in finding an adult placement for a young person transitioning to adult care and – coincidently – raises remarkably similar concerns.
Some mistakes can be inconsequential: a typo, a bit of grammar that doesn’t make sense, paragraphs wrongly numbered. I’m not complaining about mistakes like that, what someone on X described (in response to my complaints) as “dotting the ‘i’s and crossing the ‘t’s”. Obviously it would be better if judges did pay attention to details like this – and goodness knows they are often enough described as “pedantic” and obsessed with precision of language – but I have better things to do with my time than correct these sorts of errors.
The mistakes that really matter include, for example, breaching the privacy rights of the person at the centre of the case. Or mistakenly banning observers from naming public bodies, paid for with our taxes and accountable to the public. Or not making it clear who is being referred to when injunctions say we can (or cannot) name someone under certain circumstances (it does needs to be clear which person exactly!).
Transparency orders are injunctions from the court that come with penal notices. It says on the face of the order that if we disobey them, we may be found guilty of contempt of court, and then sent to prison, or fined, or have our assets seized. That means I want to be very sure I understand what it is that the court is telling me I must not do. You’d think the court would want to be sure too – and that they’d make these orders as clear as possible. But in practice, they’re written in complex legal language that make them difficult for most ordinary members of the public to understand. Worse still, they’re often riddled with errors – as we’ve documented many times before.
For example, some orders say we can’t name public bodies – and in our experience that’s a mistake about 90% of the time. But there’s that other 10% or so when the judge has decided that there are good reasons for a public body not to be named (e.g. to protect P’s privacy) – so even if it is a mistake (and we know it probably is) -if it’s in a court Order, then we can’t just go ahead and name the public body and then say if the court objects: “oh I assumed it was a mistake in the order, as it usually is”. The consequences (both for us and for the person at the centre of the case) are too serious if we get it wrong. If the order says we can’t name a public body, then we can’t name the public body: our Project won’t publish a blog post that names the public body if the Transparency Order forbids it – however unlikely it is that the judge actually intended to stop us from doing so (see: What to do if the Transparency Order prevents you from naming a public body).
So, we’re constantly emailing court staff asking them please to check with the judge whether that’s a mistake, and please could the judge correct that mistake if it’s wrong. Sometimes corrections are done quickly – especially if the judge is able to deal with it right away, orally, in the course of a hearing – but even then it can take an hour or so of our time to write a formal letter explaining the mistake and citing the relevant law. Sometimes it can take weeks or months to get obvious mistakes corrected – especially if we’re required to fill in a formal application form (a so-called COP 9) and then, sometimes, go to court ourselves to defend our position. I describe one case where it took four months here: Prohibition on identifying Public Guardian is “mistake not conspiracy”, says Judge.
Five mistakes in one transparency order: COP 14225316 (HHJ Robertshaw) – and listing errors for good measure
This blog illustrates the problem with transparency orders by showing five mistakes in one of them. This transparency order was made by HHJ Robertshaw sitting at Bristol Civil and Family court on 18th March 2024. Her order was kept on file and used for subsequent hearings in the same case. The hearing I attended was nearly a year later, before a different judge, District Judge Mark Tait, sitting in the County and Family Court at Gloucester and Cheltenham on 28th February 2025. That’s the first time I saw this transparency order – sent in response to my request to observe the hearing – though I’m pretty sure there must have been several other hearings in the same case, with the same transparency order in the bundle each time, and nobody noticing the mistakes.
In fact, the mistakes with this case began before I even received the transparency order. Here’s how it was listed in Courtel/CourtServe, which is the only way members of the public normally learn about cases.
Obvious errors here: the word “restricted” shouldn’t be used for Court of Protection hearings (I think it’s intended to refer to the fact that there is a transparency order, which is what it should actually say). There’s no information as to what the case is about (there’s a drop-down list of menu options (e.g.”deprivation of liberty”, “section 21A”, “capacity for internet use” etc) that hasn’t been deployed; and it doesn’t say that it’s public. There’s also no case name. The case name that should, I learnt later, have appeared in the listing was: “Gloucester County Council v TD“.
And then I was sent the transparency order (it had been “approved” by the judge, and “sealed” by the court) – and my heart sank. I got out a red pen and started correcting it.
Mistake Number 1
Look at the face of the order: I’ve photographed it below. The applicant is listed as “GCC” (which I quickly figured out must be Gloucester County Council, since the case was being heard in Gloucester – but this should have been properly spelled out on the face of the order). The respondent is the protected party at the centre of the case – by his accredited legal representative (ALR as they are routinely referred to in COP jargon, all explained here: “Accredited legal representatives in the Court of Protection“). Contrary to all the guidance, his full name is displayed on the face of the order. Instead the court should have assigned initials – and in fact, it had: in this case, I later learnt, the initials chosen were TD. (Obviously I’ve concealed his name in the image below).
Mistake Number 2
The name of the protected party also appeared (twice) in the body of the order itself. That shouldn’t have happened. The assigned initials should have been used instead.
Mistake Number 3
Then there’s a paragraph where some initials are used – but they aren’t the initials the court has assigned to the protected party in this case (TD) but someone else’s initials (“CB”) – and CB is described as “the subject of these proceedings” – which they clearly are NOT. Was someone perhaps using a previous template and forgot to delete the last person’s initials?
Mistake Number 4
Having put the protected party’s name on the face of the transparency order, and referred to him (twice) by his name in the body of the order – and failed adequately to protect him since 6(a) above protects someone called “CB” instead – the order finally does belatedly provide P with some possible protection by preventing us from publishing anything that identifies or is likely to identify “anyone who is a party to these proceedings” (though we’ve been told in 6(i)(a) this is “CB” not “TD”).
Unfortunately, the formulation in 6(i)(c) can be read as covering all parties, including the public body – which isn’t named on the injunction but is referred to by its initials on the face of the order as GCC. So, another order apparently banning us from naming a public body. (Oh, and the words “or that” at the end of (6)(i)(c) make no sense – I suspect because there are missing initials for another person which should have been at the beginning of (d).)
Mistake number 5
Then there’s an order that information can be released “for the purposes of caring for […..]” 9(i)(e) – and who is that? No initials fill the blank. I presume that is where TD’s initials should have gone.
Correcting the mistakes
Once I’d looked through the transparency order and marked up the mistakes in red ink, I wrote a careful, detailed respectful email to the judge who was hearing the case (who wasn’t the judge who’d made this transparency order) asking him please to correct the errors. I sent this to the court staff, by replying to the email address from which I’d received the transparency order. It took me about an hour to make sure I’d spotted all the mistakes and write the email explaining to the judge what they were and why they needed correcting.
The formal process for making changes to a transparency order involves filling in a form (with all sorts of information extraneous to requirements for this purpose) and then sending it to the court, waiting for it to be “issued”, and then for a judge to look at it and make a decision about where the matter should go from there. It can take months! I said in the email that I hoped to circumvent this process: “I know I can make a formal COP 9 application to vary the TO, but I wonder if it might be more efficient (and less costly of court time) if I simply note the following points, which I would be grateful if you could raise with the judge before the 2pm hearing“. And then I listed the corrections required.
It was frustrating to get a response from the court staff saying: “Thank you for your email. I understand that you are trying to save some time by not submitting a COP9 application however an application needs to be filed for a Judge to review and/or amend the transparency order“. I know that’s not true in practice. Judges have often reviewed and/or amended transparency orders without my filing a formal COP 9 application – on the basis of either an email, or my oral submissions in court. In an email forwarding this response to senior HMCTS staff I commented: “this is nuts!” (for which intemperate language I subsequently apologised). I was surprised that senior staff too confirmed that “The process to amend the transparency order provided for by the Judge is as mentioned to file a COP9, the Judge will need to consider the points formally and any amendments required, and therefore a COP9 should be submitted, this is the process as set out within the Courts procedures.”
By now it was 12.14 and the hearing was at 2pm, and my hope that the judge would deal with it swiftly at the beginning of the hearing was fading fast. I spent the next 45 minutes cutting and pasting my email onto a COP 9 form, wrestling the form into submission (it didn’t want to take as many characters per text box as I’d written) and filling in extraneous information required. It did not feel like a productive use of my time to do this, nor did I think it a good use of the court staff’s time to have to process a formal application this way.
Depressed by the COP 9 response, and envisioning this as another episode that was going to drag on for months, I asked three other members of the public to request the link and come along to the hearing to see how it was dealt with. It was fairly shocking to me that after I’d already informed the court about the problems with the transparency order (especially the risks posed by circulating a document with TD’s full name on it), all three of the additional observers were sent the transparency order, uncorrected.
A happy ending?
I received a response to my original email (not to the COP 9 form submission) saying the judge could see no difficulty with my requests for variations to the transparency order. Then right at the beginning of the hearing, after everyone had been introduced, DJ Tait said “The transparency order was made by HHJ Robertshaw and issued on 2nd April 2024. I’m grateful to Professor Kitzinger, who raised issues with the order, and I’m minded to adopt every recommendation that she makes. It’s important to get it right.” Then he went through the order, instructing counsel to make all the changes I’d pointed to, saying again that he was “grateful”. So, that was good.
But it had taken hours of my time – and involved other observers and court staff, and also occupied about five minutes of court time during the hearing, plus the time the lawyers would now have to spend correcting the mistakes on the order. And, several weeks later, I’ve not received the corrected version of the order. It would all be so much better if they could get it right first time around.
There’s another cost too. It turned out that TD is a young man who’s in an unregulated placement which isn’t suitable for him. The local authority has located an alternative placement, but is unable to identify a registered manager to manage the placement. They’d offered the job to one person, but then had to withdraw the offer after that person tried to change the conditions of employment. TD’s mother was in court and quite distressed by what was going on. She said it was “overwhelming“. She felt “frustrated, disappointed – all this is taking so long. I feel quite emotional“. She wasn’t blaming anyone and nobody seemed to think it was anyone’s fault, and everyone seemed to be working very hard to try to solve the problem of TD’s placement. But it was obviously an upsetting time for TD and his mother. It’s unfortunate that the judge’s attention was diverted, at the beginning of the hearing, onto the transparency order instead of being able to address, right away, the substantive business of the case. It was also unfortunate that nobody had prepared TD’s mother for the possibility of observers in court. I don’t know if she minded us being there (one observer thought she did; I thought her focus was on her son and we were no more than a peripheral irritation) – but I wish the corrections hadn’t been necessary.
Here’s what two of the other observers said:
“My overall impression is one of sorrow for ordinary people involved and how little they will probably be aware of the impact of these types of errors. Clearly privacy was important to Mum, upset that no notice was given about observers being present – and she kept her camera off the whole time. The system needs appropriate controls and accountability when errors keep being repeated. In my opinion, it’s sloppy, harmful and unneccesary. Goodness knows there are enough well-remunerated people in these processes who should be preventing this occurring.” (Angela Killeavy, public observer)
“From my experience, I suspect they involve cutting and pasting of previous Transparency Orders and they often seem to be an afterthought, a supplementary part of the process of preparing for a hearing. I just don’t think that those involved in drafting them have any idea of their impact” (Amanda Hill, public observer)
I know that, in the real world, it’s not judges who literally compose these transparency orders. Someone else (paralegals, or solicitors?) tries to paste the relevant information into a template and puts it before the judge. But judges are approving them (surely, sometimes, without reading them?!) and off they go to be sealed by the court. In my view, the buck stops with the judge. It’s their order.
Everyone makes mistakes – even judges! But it takes all of about 3 minutes to spot mistakes in transparency orders (if only someone would check them before sending them out to observers) – and it’s surely not that hard to get them right in the first place? And when observers do spot mistakes and proffer corrections, we really appreciate the swift and courteous response of judges like DJ Tait.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
This is an expanded and updated version of part of the submission I made on behalf of the Open Justice Court of Protection Project to the Ministry of Justice Law Commission Consultation on contempt of court. I plan to publish the other parts of my submission in a separate blog post. The consultation closed on 29 November 2024 (although a supplementary consultation not germane to the matters raised in this submission was subsequently launched). There is more information about the Ministry of Justice consultation (click here), and their consultation paper can be downloaded here: Ministry of Justice Contempt of Court Consultation Paper.
The proposals put forward in the Ministry of Justice Contempt of Court Consultation Paper involve four broad lines of reform, the second of which is described as “a move towards transparency and accountability”. In my view, the suggestions on this front do not go nearly far enough and do not address the practical barriers to transparency and accountability as they (repeatedly) manifest in the Court of Protection.
In my response to this aspect of the Consultation Paper, I draw on the experience of the Open Justice Court of Protection Project to document the extent to which the court – in practice – fails to ensure that contempt of court proceedings are transparent. In practice, the conduct of these proceedings often fails to comply either with the (updated) Lord Chief Justice’s Practice Direction on committal for contempt of court or with recent guidance in case law, notably the guidance in Esper v NHS NW London ICB[2023] EWCOP 29, in which Poole J offers a thorough review of the rules around contempt and transparency – including the interplay of different regulations. In addition, I suggest the rules and guidance need developing to further support transparency, in ways that go beyond the proposals in the Consultation Paper.
This blog post has five sections:
(1) Non-publication of contempt of court judgments
(2) Lack of comprehensive data about contempt proceedings
(3) Recurrent listing failures
(4) Access difficulties for members of the public both in obtaining remote links and in locating courtrooms in physical buildings where contempt of court hearings are taking place in person
(5) Derogations from transparency to protect P’s identity without appropriately or transparently balancing Article 8 with Article 10.
It seems unlikely that these problems are unique to the Court of Protection: they certainly extend to the Family Court as well. In the text box below, the (then) Press Association journalist Brian Farmer sets out his experience of seven contempt of court hearings over a seven-week period at the end of 2022 and beginning of 2023 in the Court of Protection and in the Family Court.
As I’ll document below, there’s been repeated failure to apply the proper procedures in relation to contempt hearings throughout the time that I’ve been intensively observing Court of Protection hearings (so, since early 2020), and this has persisted over the course of 2024 and into 2025 despite the Esper judgment and the various summaries of its recommendations (e.g. the useful summary in the Court of Protection Handbook, by Alex Ruck Keene KC, albeit written in in language most likely to be best appreciated by legal professionals, here). My experience is that, no, with some notable exceptions, contempt of court proceedings in the Court of Protection rarely meet even the minimum qualifications for ‘transparency’.
1. Non-publication of judgments
Judgments from contempt hearings in the Court of Protection are very commonly not published at all – or not published in a timely fashion or not published anywhere I find it possible to locate them. In my view, judgments should all be published – and published swiftly – on The National Archives and BAILLI (and not solely on the judiciary.uk website where they are difficult to find and seem not to be permanent).
In one case, a custodial sentence of 168 days was handed down on 9 December 2024 (I watched the hearing) but no judgment was published – that I could find – until early March, by which time the contemnor had served five weeks of her prison sentence (ICB v Sophia Hindley[2024] EWCOP 79 (T2)). The judge had alerted me to the likelihood of delay due to challenges with transcribing services over the Christmas period, but I was personally sent transcripts of the judgments many weeks before publication. There are other cases (described below) – at least one of which I am fairly confident concerns a custodial sentence – which have still not been published months or years after judgment was handed down.
My understanding is that judges in the Court of Protection don’t have to publish judgments in contempt proceedings unless they make an order to send someone to prison. That’s what it says in Practice Direction 21A: Contempt of Court which specifies that the relevant rule on publication of judgments “does not require the court to publish a transcript of every judgment, but only in a case where the court makes an order for committal“.
The Consultation Paper proposes that publication should be required in all cases resulting in custodial sentences – whether immediate or suspended. This seems already to be a requirement in the Court of Protection and is self-evidently an important part of transparency in the court. People should not be sentenced to prison without a published record of the reasons.
In my view, the requirement to publish judgments should extend to cover those judgments that do not lead to custodial sentences as well as those that do, not least since custodial sentences are likely to become less common if the Ministry of Justice proposals for alternative sanctions (as described in the Consultation Paper) are implemented. Moreover, it is the threat of a custodial sentence (whether or not one is actually imposed) that does a lot of the ‘heavy lifting’ in these cases. People should not face the risk of being sentenced to prison without a published record of the reasons – whatever the eventual sanction imposed, and even (as in Esper) in the absence of any sanctions.
I suggest that publication of judgments (or orders/declarations – whatever marks the outcome or ‘final decision’ in relation to a case) should be required in relation to all committal hearings – including those where a defendant is not found to have breached court orders, those where a non-custodial penalty (or no penalty at all) is applied, and those that are abandoned. Contempt of court hearings represent a very small proportion of Court of Protection hearings (lawyers keep telling me they are “rare”), so this should not be an onerous requirement.
Contempt of court is a matter of legitimate public interest and these hearings are hugely important for public understanding of the authority of the court and what happens when we disobey its orders. The public should not have to rely solely on the reports of journalists and members of the public for their understanding of these matters. Both public reporting and public understanding would be greatly improved by the provision of authoritative published judgments or formal records of judicial decisions. Lawyers would find judgments useful too. Given the level of confusion and misunderstanding that currently prevails among legal professionals (including some judges), publication of all judgments and ‘final decisions’ in committal cases would also help to safeguard and enhance the administration of justice.
Here are two examples of committal cases I’ve observed for which there’s no published judgment – and no legal requirement to publish one. In both cases I believe publication is in the public interest, and would support understanding of contempt of court procedures for the public and for legal professionals alike.
Norfolk County Council v Caroline Grady(unpublished) is the only case I’m aware of from the Court of Protection where a penalty was imposed in the form of a fine rather than a custodial sentence. Since it’s not published (though I have read the unpublished judgment), the reasons for imposing a fine for contempt of court are not publicly available. The unpublished judgment refers to two arguments that are often raised in committal hearings and which represented the local authority’s position in this case: that the breaches did not meet the custody thresholds and that it would be contrary to the protected party’s best interests for her relative to be imprisoned. The mitigating factors referred to by the judge in deciding against a custodial sentence include the defendant’s admission of contempt on four of the six grounds and an apology for that behaviour. Publication of the full judgment in this case would provide a helpful public record of judicial reasoning in relation to non-custodial penalties for contempt. (UPDATE: We made a formal application for publication of this judgment (see Norfolk County Council v CA & Ors [2025] EWCOP 16 (T3)) and were successful. The judgment is here: Norfolk County Council v CA [2024] EWCOP 64 (T3))
Barnsley Metropolitan Borough Council v DB (unpublished) is a hearing that collapsed due to procedural defects that were spelled out in the judge’s decision to “strike out and dismiss” the application to bring contempt of court proceedings against DB. I don’t have a formal record of this decision from the court and have relied on my contemporaneous touch-typed notes from the hearing to capture the judge’s decision. (There’s more information in my blog post about the case here: Committal hearing: Struck out and dismissed for procedural defects). This is what the judge said:
“Firstly, Rule 21.8(5) states that the defendant’s name will appear on the court list unless the court makes a rule that their name should not appear. I have for the first time this morning had the opportunity to read Esper (Esper v NHS NW London ICB (Appeal : Anonymity in Committal Proceedings)[2023] EWCOP 29). The defendant has never been informed of his right to have rule 21.8(5) considered, or to make any representations about that. It may be that if an application were made, there would be no merit to it, but I have not considered the merits of it. The procedural irregularity is that he’s not had that opportunity.
Secondly, the form that purports to be the application for the committal is wrong. The local authority has not lodged a COP 9. They have borrowed a form, M600 from another jurisdiction. It is the wrong form.
Thirdly, this court directed the defendant should be personally served with a notice of contempt by 19 January 2023, setting out the evidence relied on by the local authority, with a separate list of allegations numbered and identified separately to make it clear what it was being said he’d done, and when, and why it breached the order. This was not done by 19th January, and no application to extend the time was ever made. It was filed and served on Tuesday this week, less than 24 hours ago. The notice of contempt filed on Tuesday has information presented in a manner which I consider to be confusing, using an “and/or” format which is insufficient to enable someone to identify which order they breached and when.
Finally DB has not participated in the proceedings but at no point has there been any consideration of a summons.
I have considered all of those defects and have had regard to Rule 20 of the Court of Protection Rules on appeals which states “The appeal judge shall allow an appeal where the decision of the first instance judge was […] unjust, because of a serious procedural or other irregularity in the proceedings before the first instance judge” (§20.14(3)(b)). I am satisfied there are procedural irregularities and any decision I may made is likely to be successful on appeal, so I am going to strike out and dismiss this application for its procedural defects. I am aware I can waive defects if I am satisfied this would cause no injustice, but I am not so satisfied. I therefore dismiss the application that is before me today.
I do not criticise parties for those defects in a context where there is, in my view, a need – an urgent need – for committal templates in the Court of Protection. Without them, the parties and the court are challenged by everyone’s best endeavour to comply with the rules. Clear templates are need to assist everyone.
Barnsley Metropolitan Borough Council v DB (unpublished) Note: This is not an official court transcript
It might have been useful to the Ministry of Justice consultation exercise on contempt of court if this decision had been published other than in my blog post. The judge raises important points – and in my experience procedural defects are very common in committal hearings (though often waived by judges). Procedural deficits might be averted if more lawyers were aware of the proper procedures.
Publication of judgments should be timely if they are to make an effective contribution to transparency. Here are two examples where they were not (in addition to the concern raised earlier). I’ve referenced these two cases with the judges’ names and case numbers because both were wrongly listed (as described in section 3 below) and did not include the names of applicants and defendants (though I have since been provided with some of this information).
HHJ Searle (Exeter) COP 12991351 This case concerns a contemnor who – the court tells me – can be named as “Tia Bench” and it seems there is an intention to publish a judgment. I was told by HMCTS staff: “the name of the person with the committal hearing 12991351 is Tia Bench and Her Honour Judge Searle’s judgment for the Committal hearing of 28 June 2023 will be published in accordance with the rules”. That was 19 months ago. I’ve received no replies to my multiple requests in late July and August 2023, or to my renewed enquiries in early 2025 (copied to senior HMCTS staff) in anticipation of writing this report. I’ve not been sent the judgment and I’ve been unable to locate a published version on any of the usual websites. I don’t know what orders Tia Bench is alleged to have breached, or why, or what penalties were imposed, or whether she’s purged her contempt, or appealed, or even whether she is serving a prison sentence. (See the update on this case in the Postscript, added 10th March 2025)
DJ Taylor (Truro)COP 14097158 I asked for a link to observe this hearing which was listed as committal hearing, in public, for 25 October 2024. I was told it had been vacated. I raised a concern with the listing (it was not compliant with the Practice Direction) and asked for the names of applicant and defendant: I was told Cornwall County Council v. David Orange. I then asked for the judgment and was told it “will be transcribed” and “published through the appropriate channels”. Having subsequently chased this, I received a response on 28 February 2025 (so four months later) to the effect that the transcript has not yet been received, but that it would be sent on to me when it arrived with HMCTS. Concerned that Mr Orange may have been given a prison sentence that members of the public don’t yet know anything about – so effectively jailed in secret – I replied asking to know whether a finding of contempt was made and if so what the penalty was. So far, no reply.
I suspect that the delay in publishing judgments in these two cases is due to administrative issues and general muddle and confusion: “cock-up, not conspiracy” as I am regularly told. It may also have been caused by uncertainty and anxiety about the legal requirements, e.g. whether a member of the public must (or alternatively may) be given the information and on what basis – especially if the outcome for either Tia Bench or David Orange was something other than a prison sentence (I’ve not been told one way or the other). I recognise that efforts to achieve transparency via publication of judgments add to the burden of just trying to keep the justice system functioning in the context of chronic under-resourcing. Nonetheless, whatever the reasons, the judgments have not been published, and I don’t know anything substantive about these two contempt of court cases – resulting in a derogation from transparency, a principle to which (as I’m also regularly told) the judiciary aspire.
One further example of failure to publish judgments in a timely fashion relates to appeals. It is an extraordinary disheartening experience to attend appeal hearings as a public observer, only to be told that the “public” judgment being appealed is not yet published and not yet approved by the judge and so cannot yet be released to observers: this has happened to me several times both in the High Court and in the Court of Appeal (and I’ve seen judges in the Court of Appeal raise their own concerns about how close to the time of the hearing they sometimes receive transcript of judgments). Obviously, if a judgment is being appealed in open court, the public should have timely access to that judgment so that we can properly understand the basis of the appeal and the arguments being made for and against it.
Judgments reporting on ‘final decisions’ (including but not limited to custodial sentences) should in my view be published as rapidly as possible. I would also like to see publication of more of the judgments made over the months or years preceding those final decisions. I am not sure what position the judiciary take on the publication of judgments that form part of what are often very extended committal proceedings during which there are (more often than not) many separate hearings, and separate judgments made – all of which could properly be understood as part of the committal process. These include decisions like: fact-finding about breaches; findings relating to contempt; decisions about penalties; judgments relating to subsequent breaches and activation of suspended sentences; decisions relating to applications to adjourn committal hearings or to appeal findings or decisions; appeal hearings and applications to purge contempt. Publication of a single judgment on its own can give a partial or even misleading impression of the trajectory and outcome of the case. I’m particularly concerned that – in two separate cases I’m aware of – published judgments report information that was dismissed or criticised as unreliable by the judges in their own oral judgments at subsequent hearings – judgments that the judges concerned have declined to publish.
One exemplary instance of publication of judgments as a case unfolds is the case of James Grundy, heard by DJ Davies (sitting in Derby). There are now several published judgments for this case, covering James Grundy’s sentencing (a suspended 28-day prison sentence) on 22 August 2023; then the raising of questions as to Mr Grundy’s capacity in relation to the injunctive order and/or in relation to conducting the proceedings, and then the eventual finding of capacity and on 29 January 2025 he was sentenced to 28 days in prison (Derbyshire County Council v Grundy [2025] EWCOP 1 (T1; Derbyshire County Council v James Grundy). Given this judge’s excellent track record on transparency, I would expect any appeal to the sentencing decision or application to purge to be properly transparent in terms of listing and publication as well. This series of hearings, and the judgments emerging from them, is one of the few examples of (largely) properly transparent practice in relation to contempt of court hearings. It’s been lauded by legal professionals as “a landmark case in Court of Protection enforcement, setting a rare precedent for committal to prison in contempt cases” (see: “Capacity, Contempt, and Custody: What Lawyers Need to Know from DCC v Grundy”). In fact, it’s far from “rare” that the Court of Protection commits someone to prison (its apparent “rarity” is a notion fostered by non-publication of judgments) but what establishes it as a “rare precedent” (from a District Judge!) is the fact that the judgments are published and the reasoning relating to committal made public. Clearly, legal professionals – as well as member of the public – value this transparency. Other (more senior) judges have a lot to learn from DJ Davies. We need more judgments like these.
2. Lack of comprehensive data
There is no systematic data collection about contempt of court proceedings, and no “Transparency Data”[1] is published in relation to contempt of court in any part of the court system. The Ministry of Justice Contempt of Court Consultation paper (July 2024) reports starkly that “no data is published in relation to contempt” (§7.182).
So, nobody – not the Ministry of Justice, not HMCTS, not the judiciary, not members of the public – has any idea how many people have been subject to contempt proceedings in the Court of Protection in any given year, what their alleged offences were, what the outcome was, or even whether or not they received custodial sentences[2]. This is clearly a problem for a court with aspirations to transparency and should be remedied immediately.
3. Recurrent listing errors
Contempt of court proceedings are not ‘transparent’ if members of the public do not know that they are taking place.
It is our routine experience that daily court listings are neither comprehensive nor reliable. It is common to find Court of Protection listings missing essential information and/or hidden away in the wrong section of Courtel/Courtserve, apparently as a result of “innocent human error” (“Court of Protection listing mishap leaves observers in the dark”). I regularly stumble over hearings that do not appear in the listings at all: when I’m alerted to an upcoming hearing by a party involved in a case, there’s only a 50:50 chance that I’ll be able to locate it in public court lists, and I’ve attended at least a dozen hearings that have never been publicly listed. So have other public observers – as described in this report about a Family Court committal hearing that seems never to have appeared in any public list: “East London Family Court holds ‘secret’ public hearing”.
When committal hearings are listed, they rarely comply with the relevant Practice Direction, which requires (except in exceptional circumstances justifying derogation from the general rule of open justice) the following format:
It is in fact RARE to find Court of Protection committal hearings listed in this format. Here is a sample of listings which illustrate how very far normal practice departs from the Practice Direction (see Figures A – H and the explanatory text for each).
Figure A shows a listing at Coventry Family Court from which it is impossible to know that it is a hearing concerning contempt of court and the possible committal of an alleged contemnor to prison. It doesn’t use any of the required wording: it doesn’t say it’s a committal hearing and doesn’t name either an applicant or an alleged contemnor. I only discovered that’s what it was when I got the link to observe.
Figure B is composed of two listings for hearings before the same judge in the same case, three months apart. It’s impossible on the basis of the way they’ve been listed – which bears no resemblance at all to the format mandated in the Practice Direction – to recognise that they are dealing with contempt of court. I attended the first of these two hearings (B(i)) remotely. having been alerted to its existence by another member of the public. On being sent unpublished judgments from earlier in the case, I discovered that there had been several earlier committal hearings as well: presumably they, too, had been wrongly listed, so I’d not aware of them and had been unable to observe them, as I would have wished. The hearing in B(i) turned out in fact to be a sentencing hearing at which the judge handed down an immediate custodial sentence of 168 days to one Sophia Hindley, on the application of NHS Humber and North Yorkshire ICB. In written correspondence, I expressed my concern about the way the hearing had been listed. Nonetheless, the next hearing in the case was also incorrectly listed – as a s.21A hearing and not as a committal (see Figure B(ii)). Again, I wouldn’t have known it was a contempt of court hearing had I not been so informed by a member of the public. So, even after drawing a judge’s attention to mistakes in listings – and even with a judge clearly disposed to be supportive of transparency in other ways – those mistakes can persist.
Figure C is yet another listing for an ‘invisible’ committal hearing, this time before a Tier 3 judge, Poole J, sitting in Newcastle County Court. Again, it is not identified as a committal hearing at all in this list: I only knew that’s what it was because the alleged contemnor (who was subsequently handed a custodial sentence) had told me about it. I understand that the judge had ordered non-disclosure of the defendant’s name. I do not know whether he also ordered that it should not be listed as a “committal” hearings and that the local authority should not be named.
Figure D shows a committal hearing incorrectly listed by the Royal Courts of Justice. There is no indication at all in Figure D that this is a committal hearing. As in the listings displayed in Figures A to C, the word “committal” is not used and nor are the applicant and defendant named.
Figure E below shows two committal hearings listed at Exeter County Court. These two listings improve on those in Figures A-D because they do at least contain the words “Committal Hearing”. However, the hearing before HHJ Searle appeared twice in the listings – in identical form except that the start time was listed as 12.00 in one version and 1.30 in the other (the version displayed below) with no indication of which was correct. Neither of the two versions of HHJ Searle’s case, nor the one before DJ Ireland, provides the name of the applicant or the name of the person alleged to be in contempt. In response to my enquiry about the hearing before DJ Ireland, I was given contradictory information including a one-sentence email to the effect that it was not in fact a committal hearing but a hearing about “capacity” – despite what it says on the listing: I have tried to follow this up with no success. In response to my enquiries about the hearing before HHJ Searle, I was provided on request with the name of the alleged contemnor – which indicates to me that it should in fact have been published on the public listings since it seems there was no judicial order to the contrary. I also received information that the case before HHJ Searle had been correctly listed in accordance with the Practice Direction on the paper version of the list in Exeter County Court.
Figure F shows listings for committal hearings before DJ Taylor in Truro and HHJ Marson in Sheffield. I believe the hearing before DJ Taylor is wrongly listed because it does not name the applicant or the defendant – and I subsequently requested and was told the name of both, leading me to deduce that the judge had not made any exceptional arrangements for applicant or defendant to be anonymised in the listing and that both names should have been on the public listing. As far as I can tell, though, HHJ Marson’s hearing is correctly listed because she had made an order that the defendant’s name should not be listed. I do not know whether she so informed the Press Association about this (as required by the Practice Direction) in advance of the hearing.
Figure G shows an almost correctly listed hearing before DJ Davies in Derby. But even with a judge whose commitment to transparency is exemplary and extended to permitting me to observe the in-person attended hearing via video-link, there were problems relating to transparency. At the beginning of the hearing, the judge expressed concerns about the way the listing had appeared on the door of the courtroom (not in accordance with the Practice Direction apparently, although I didn’t see it since I was watching the hearing remotely) and also pointed out that the non-disclosure order had not been served on the Press Association as per the Practice Direction. So, even when judges are fully aware of what the procedure should be, things don’t always go according to plan (see: Committal and sentencing with a possibly incapacitous contemnor). My red sticker in the image below obscures the initials of the protected person which should not have appeared on this listing: she was not a party to the committal application and is referred to as “P” in the published judgments. There is generally no need to use P’s initials in listing a contempt hearing – and it may be inadvisable to do so in terms of protecting their Article 8 privacy rights. The case number provides all that is needed in terms of connecting the committal with proceedings up to that point.
These listing errors are clearly consequential for open justice. They mean we don’t know that committal hearings are taking place, and we don’t know the names of the applicant public bodies or the defendants. Furthermore, the fact that this information is not – as it should be – in the public domain via the lists, has consequences for what happens in hearings because listing errors are often seized upon by parties to advance arguments for suppressing the information that should have been in the listings, wasting a good deal of court time in the process with arguments and counter-arguments that would have been redundant if the proper procedure had been followed such that this information was already in the public domain.
Finally, listing errors for committal hearings also sometimes constitute – in and of themselves – breaches of P’s privacy rights. I’ve seen many times the use of P’s initials (sometimes their real initials) in public lists for committal hearings. One family member said in court she and P were “mortified” by this. Another family member (Luba Macpherson) is – justifiably – angry that her daughter’s initials were used in both in the Court of Appeal list and in subsequent High Court lists in place of the correct naming of the case (i.e. her own name and that of the public body). The red sticker conceals the erroneously printed initials in Figure H below. The defendant has said publicly on social media, that errors like this reek of “hypocrisy” since the courts themselves have risked public identification of her daughter – the very offence for which she has been given a prison sentence.
It’s ironic, in view of the efforts the court undertakes via Transparency Orders to prevent publication of P’s identity by P’s family and by the public, that it should so often publish information prohibited by its own orders: we’ve seen P’s full name on public lists dozens of times, and on a couple of occasions, the names of the care home where they are resident. (We can’t show these, obviously, but we’ve sent some of them, with expressions of concern, to HMCTS staff, and previously published our concern here: A review of transparency and open justice in the Court of Protection ) It’s ironic that P’s name sometimes appears (wrongly) on listings and defendants’ names are (wrongly) omitted; and that P’s initials are used on committal listings where the defendant’s name (and that of the applicant) should be used instead. The work needed on listings clearly goes beyond simply the need to ensure that committal hearings are correctly listed – but what I’ve illustrated in this section is that the lists for committal hearings, in particular, can be very spectacularly wrong.
4. Access difficulties for members of the public both in obtaining remote links and in locating courtrooms in physical buildings where contempt of court hearings are taking place in person
Members of the public regularly experience difficulties in gaining access to Court of Protection hearings: like listing errors, this is not a problem specific to contempt of court hearings. We’ve raised concerns about access issues more broadly in our response to the Transparency and Open Justice Board consultation exercise on key objectives (also published as a blog post here) and we regularly blog about the challenges of trying to get access to observe hearings. These generic access problems impact equally on access to committal hearings.
In brief, public cause lists are published late in the afternoon the day before a hearing, leaving little time for staff to arrange remote access the following day, and making it hard to us to make travel plans to attend in person. I have missed the opportunity to observe some committal hearings because I discovered that they were happening too late to travel to the court; other observers have missed hearings because they were listed as “remote” but were actually held in person, or vice versa.
It can take persistence to gain admission to remote hearings because there are delays in sending the link. In relation to the committal hearing listed in Figure A (above) for a 10am hearing (which at the time I was not even aware was a committal hearing!), I asked for the link the previous evening (19.22 on 4 December 2024), resent the request at 09.19am the following morning, and finally received the link at 10.30am for the 10.00 am hearing, which of course had already started. I gather it started around 15 minutes before I joined. So, a significant proportion of this “public” committal hearing was actually held in private.
Lists in physical court buildings are frequently missing or wrong and staff are sometimes not able to direct us to the right courtrooms. Sometimes, there is no notice on the outside of the courtroom communicating the correct information (in fact, sometimes a notice on the courtroom door even says that proceedings are “private”).
I observed the whole of one in-person committal hearing in Newcastle before Poole J (Figure C above) with some difficulty. There was no public list displayed in Newcastle court showing the committal hearing I’d come to observe, and staff were unable to tell us which courtroom it was in (see:A committal hearing to send P’s mother to prison – and the challenges of an in-person hearing). A journalist seeking to attend another hearing in this same case “… was told by a security guard at the Newcastle Civil and Family Courts Centre that the hearing was a family court matter, was in private, and that he had no right to attend a private family court hearing” (see: “Committal hearings and open justice in the Court of Protection”.
Another member of the public asked for the link to observe a committal hearing before Mr Justice Hayden that was publicly listed as “remote”. On asking for the link, he was told that in fact the court would be sitting in person at 2pm that day, and so he made his way to the Royal Courts of Justice, where the printed list on display still showed a ‘remote’ hearing, which initially stymied the attempts of staff to assist with finding the right courtroom. Eventually – after multiple phone calls and two protracted conversations with staff at different “enquiry desks” – he discovered which courtroom the judge was sitting in, only to find a notice on the courtroom door reading“NO ENTRY TO THE PUBLIC SAVE FOR ACCREDITED PRESS/MEDIA REPRESENTATIVES”. Daniel Cloake is an unusually persistent observer – many others would have given up long before this. He eventually gained entry to this “public” hearing by attracting the attention of the judge’s clerk through the window in the courtroom door, but only eight minutes before the hearing finished. (‘No Entry’ – A committal hearing at the RCJ).
These access difficulties show the real world consequences of listing errors. They effectively prevent members of the public from attending hearings in open court – obviously not limited to, but most certainly including, hearings for contempt of court.
5. Derogations from transparency to protect P’s identity without appropriately or transparently balancing Article 8 with Article 10
According to Nicklin J, Chair of the judiciary’s new Transparency and Open Justice Board, it is a “fundamental component” of open justice that there should be “open reporting“ and “ … that any restrictions imposed by the court preventing (or postponing) reports of proceedings (including anonymity orders) must (1) have a statutory basis … ; and (2) fulfil a legitimate aim, be necessary, proportionate, and convincingly established by clear and cogent evidence”. (Nicklin, J, Newcastle-upon-Tyne Law Society Annual Lecture 2024, 9th May 2024, Newcastle Law School)
In my experience, the reporting restrictions relating to contempt of court hearings are often not (or not transparently) “necessary, proportionate, and convincingly established by clear and cogent evidence”.
Some contempt hearings in the Court of Protection are listed as private – sometimes, it seems, incorrectly due to listing error (a problem in itself) – but others by order of the court because (I was told on one occasion) the judge had decided that this was the best way of protecting P’s identity.
Parties sometimes arrive in the courtroom apparently assuming that the ‘standard’ Transparency Order for Court of Protection hearings that has covered the case up to that point remains in place – and that’s the one I’ve often been sent in advance of the contempt hearing. But the standard order includes the statement that it “does not apply to a public hearing of, or to the listing for hearing of, any application for committal” (9(3)). When I’ve pointed this out, it feels like a last-minute scramble by lawyers unprepared for this eventuality to draft an appropriate order.
The previous order – the one that “does not apply” to the committal application now about to be heard – almost invariably protects P’s identity and that of their family members. It is almost always one of those family members who is now before the court accused of contempt. Lawyers and the judiciary display a protective impulse and are attracted to the idea of a new order which duplicates or extends the existing one – including the prohibition on naming not just P, but also the family member now risking a prison sentence, the defendant. This is not, according to Poole J’s judgment in Esper the correct way to go. The Court of Protection Handbook summarises the situation as follows:
COPR r21.8(5) is not triggered to prevent the disclosure of the identity of the defendant if the sole purpose is to protect the interests of P. It must be the interests of the defendant that need protecting. In the event of a committal order it will be exceptionally rare for the court to find that the r 21.8(5) conditions are met in respect of the defendant. In the event of a finding of no contempt of court, it will be relatively more likely that the court will find that the r 21.8(5) conditions are met in respect of the defendant, but it will still be an exception for the identity of a defendant to committal proceedings not to be disclosed.
Despite this clear guidance, I have listened many times to counsel advancing the argument that publishing the name of the defendant is not in the best interests of P because it risks P becoming publicly identified. Sometimes this argument is advanced as part of a case for prohibiting publication of the name of the defendant. Alternatively, it’s sometimes advanced to point to the increased risk to P created by publicly naming the defendant, and as an invitation to the court to consider what further protection might be needed via enhanced restrictions in the Transparency Order to prevent jigsaw identification.
Protecting P’s right to privacy, and protecting P from harm that might result from public identification, are legitimate aims that have been long been widely accepted as justifications for derogations from open justice in the Court of Protection. That’s why (except in exceptional circumstances) we are routinely prohibited from publishing the names of P and their family members, or their contact details, or anything “likely” to enable them to be publicly identified.
I have never seen an application to name P (during their lifetime) in committal proceedings. I have never made such an application myself and cannot imagine the circumstances under which I would wish to do so.
In the context of committal hearings, in which the contemnor (often P’s family member) is named (which post-Esper seems to be more common), there needs to be a realistic assessment of the risks of this for P. The key issue is not whether naming the defendant increases the theoretical possibility of someone being able to identify P (whose name they are in any case prevented by the Transparency Order from publishing) but whether, in reality, this is “likely”, whether it might cause harm, and what additional safeguards involving derogations from transparency are “necessary, proportionate and convincingly established by clear and cogent evidence“. Essentially, the judge is back in what should be familiar territory (from drafting the previous Transparency Order): she is carrying out an Article 8/Article 10 balancing exercise – but with different law and facts to consider in the new context of committal proceedings and in relation to what is already (or should be, or will be) in the public domain, including, now, the defendant’s name.
Former PA journalist Brian Farmer addresses some pertinent issues relating to the Article 8/Article 10 balance in a letter he wrote to Poole J in response to the judge’s decision, at an early stage in the committal hearing, to withhold the name of the defendant from the public court lists. Brian Farmer and I made an application for the defendant (subsequently identified as Lioubov [Luba] Macpherson) to be publicly identified, along with the applicant (Sunderland City Council). (We did not apply to publish the name of the protected party, her daughter.). Post-Esper I think it’s increasingly clear that naming the defendant is no longer viewed as discretionary (as Poole J saw it then) but must comply with strict tests of necessity – but Brian Farmer’s points about the real world implications of naming a defendant family member and the likelihood of P being publicly identified (or harmed) as a consequence are of continuing relevance.
Extracts from letter from Brian Farmer (then Press Association journalist), to Mr Justice Poole
We would say people have a fundamental right to know the names of members of the public who are facing jail sentences, and the names of people or bodies “prosecuting” them – and that right should prevail here.
I’d also urge you to step into the real world and consider how much harm P is really likely to suffer if her mother is named.
The vast majority of people won’t read your published judgment, they’ll find out about the case through the media. In reality, how many passengers on the Seaburn omnibus are going to read a report in the Sunderland Echo then try to piece together an information jigsaw? Dr Kitzinger and I might have the inclination and ability to track down your earlier anonymised judgment on BAILLI, but will the average person really even try? Will they really start searching for the mother’s Facebook and Twitter accounts? Why would they? People have a lot on their minds at the moment. They’re struggling to heat their homes, struggling to pay food bills, war is raging, Prince Harry is on the front pages, Sunderland look like they’re going to miss out on promotion. In reality, this case isn’t big news and I suspect the vast majority will glance at any report, think how sad life is and how lucky they are, then turn to the back page to check the league table.
Likewise, how many people are really keeping track of what the mother is putting into the public domain? She’s not the BBC, she’s not Prince Harry. This case hasn’t been the focus of enormous media attention.
[…]
My proposal [to name the defendant] will obviously create a risk of jigsaw identification; however, I think you can take steps to greatly limit that risk.
Someone always knows the identity of the child, or P. Social workers know, court ushers know, friends of families know, neighbours know. Any report will identify the child, or P, to someone. We’d argue that the test must be “will the passenger on the omnibus, the average person, identify the child, or P?” The test should not be “will anyone identify the child, or P.” If the test is “will anyone identify…?” then the media can never report any family case, or Court of Protection case, because someone will always be able to work it out.
[…]
I suspect that, in reality, only the people who know the family will know the identity of the P, and they must already know. I also suspect that, in reality, relatives, friends, neighbours etc will already know what has happened in this case – and will probably learn of the outcome regardless of whether or not there are media reports.
[…]
I think in any weighing of the Article 8 rights of P, and P’s mother, against the Article 10 rights of the media and the public, the balance here falls on the 10 side. Naming the applicant and respondent would create a limited risk to P: not naming would effectively be secret justice.
So, Brian Farmer’s argument is that not naming the applicant and defendant in committal proceedings is “effectively secret justice” and that naming them creates only “a limited risk to P”, such that the Article 8/Article 10 balance comes down on the side of publication. In this case, Mr Justice Poole agreed. Brian Farmer also makes the important point that identification of P is actually rather unlikely to result from naming a defendant in committal proceedings, because that’s not how it works in “the real world”.
I am struck that in Luba Macpherson’s case there’s been no indication either that P has been publicly identified (other than, obviously, by Luba Macpherson herself); or that P has been harmed as a consequence of publication of the name of their mother. (I’m also not aware of publication of P’s identity or harm to P arising out of identification of a contemnor in any other Court of Protection case.)
Each case has a distinctive set of facts relevant to assessing the likely risks to P: for example whether P and the defendant have the same last name, whether they live together, whether there is already media publicity about the case, the use of social media by P and their family members, and what information has been published in previous judgments in the same case. There can be “clear and cogent evidence” of risks to P and these risks may be based on facts not known to observers, who have always a necessarily partial understanding of a case. Equally, the “solutions” proposed to deal with those risks – the enhanced protections provided by new reporting restrictions – may impose impossible burdens on transparency in ways the court does not appreciate since it is bloggers and journalists (and not judges) who have the hands-on experience of publishing information about court hearings.
Given increasing acceptance in the wake of Esper that publicly naming an alleged contemnor is likely to be an inescapable consequence of launching contempt hearings, judges seem now to be less likely to entertain arguments about prohibiting public identification of the defendant, and more likely to be concerned with approaches designed to manage what they see as the resulting risks to the person at the centre of the case. Attempts to identify and manage the risks of jigsaw identification needs to be approached very carefully in these cases, considering the realistic (not merely hypothetic) risks to P, and with a view to necessity and proportionality in creating further reporting restrictions, and their practical ‘real world’ consequences.
We are alarmed by one particular strategy – a strategy we’d characterise as an attempt to sever committal proceedings from previously published judgments (and blog posts) about the same case. We’ve been sent one unpublished contempt judgment which does name the defendant (albeit with no benefit to transparency since we’ve been informed that there is no intention to publish the judgment), along with a draconian new Transparency Order. The new Transparency Order bans publication of the “specific relationship” between P and the contemnor – information already published both in a previous judgment, and in Open Justice Court of Protection Project blog posts which are compliant with the Transparency Order in force up until the date on which the contempt hearing took place. In court, the judge made clear that she was concerned to manage a perceived risk of jigsaw identification if the contempt judgment were to be connected with her own previous judgment in the case. This means, inter alia, that we cannot publish the case number, or the name of the judge or the date of the contempt hearing – all of which are (very) “likely” (in the words of the Transparency Order) to lead readers to the earlier judgment which includes the newly-prohibited information. This is effectively secret justice. We are in the course of making an application for this Transparency Order to be varied and will blog about this separately.
Conclusion
The pilot transparency project in the Court of Protection – which, at least in theory, threw open the courtroom doors to the public and journalists – was launched in 2016. It followed a Daily Mail campaign against committal hearings allegedly held in secret, starting with Wanda Maddocks “the first person known to be imprisoned by the Court of Protection” who was sentenced to five months in prison. The Mail reports that Wanda Maddocks “was initially not allowed to be named after the hearing and was identified only by her initials WM” (a reporting restriction the Mail says was lifted only when P died) “[a]nd the court’s ruling containing details of her sentence was not published”. I checked this out, and there’s a published judgment dated 31 August 2012, which states that the order for committal was made on 10 July (I assume of the same year) (§14 Stoke City Council v Maddocks & Ors [2012] EWCOP B31 (31 August 2012)), so publication of the judgment seems to have been delayed by about two months from the date of sentencing: it’s a short and sketchy judgment, but it does include the length of the sentence.
There have been many really positive changes in the direction of transparency and open justice in the Court of Protection over the course of the last decade. But the evidence I’ve reported here suggests that many committal hearings are still held effectively in secret – if not by design, because they are not listed correctly so we don’t know they’re happening, or because there is no practical means for us to gain access. If we can’t get to hearings and their judgments aren’t published, then even if there’s no court-ordered reporting restriction, the names of the people who received prison sentences, or risked doing so whatever the eventual outcome, are effectively secret. Few people are motivated, as I have been, to pursue the courts to name people (like Tia Bench and David Orange) whose hearings we haven’t been able to attend – and still, despite all my enquiries, I have no idea what either of these defendants was alleged to have done, which orders they disobeyed, whether or not they were found guilty, and what penalties were imposed. And now, post-Esper, the “price” of transparency (in the sense of an increased likelihood that defendants’ names will be published) seems to be that we find ourselves up against draconian reporting restrictions relating to material already in the public domain, severely limiting what we can publish about the case.
So, are contempt of court proceedings now transparent? I’d say, clearly not.
Is the Court of Protection still sending family members to prison in secret? I don’t know for sure. But I suspect the answer is ‘yes’.
Postscript: Good news on transparency (finally) Re: COP 12991351
On 10th March 2025, within 24 hours of publishing this blog post, I received an email from HMCTS responding to my enquiry about the committal judgment handed down in relation to the (incorrectly listed) contempt of court hearing before HHJ Searle. I’m told that a transcript had been requested but not received, and is now being progressed urgently.
Ever since 28th June 2023 (the date the contempt hearing took place), I’ve been raising concerns about the listing of this case, asking about publication of the judgment, and checking BAILLI and The National Archives in hope of finding the judgment. The email trail includes earlier messages from:
HHJ Searle in person (noting my concerns, and saying she’ll respond in due course, 28 June 2023 – followed on 2August 2023 by a message from the Bristol office telling me the contemnor’s name and instructing me not to contact the judge directly again);
the clerk to the Vice President of the Court of Protection (“I have forwarded to Theis J to consider”, 29 June 2023)
HIVE – an internal Court of Protection group set up during the Covid-19 lockdown to advise on policy matters (“I’ll see what I can find out. Please bear with me“, 11 July 2023) – with a senior HMCTS staff member copied into the email to whom I have been told to direct enquiries
Bristol HMCTS court staff (“Just to let you know we are awaiting the directions“, 25 August 2023).
Finally, on 26th February 2025, in the course of preparing this blog post, I emailed senior HMCTS staff saying that I’d sent a submission to the Ministry of Justice (which I was now reworking for a blog post), in which I referred to this missing judgment “as evidence of the (sadly, typical) lack of transparency associated with hearings for contempt of court in the Court of Protection”. I wondered if they might be able to pursue what had happened, The 10th March 2025 message saying that no transcript of the judgment had ever been received was the response.
I am baffled and dismayed that neither the judge concerned, nor her “lead judge” (to whom she told me she would refer the matter), nor the Vice President of the Court of Protection, nor HMCTS staff, all of whom I had made aware of this missing committal judgment, were able or willing to pursue this matter until now. It reflects very badly on the Court of Protection’s approach to transparency that my enquiry about a judgment concerning a prison sentence for breaching court orders simply disappeared into a void, with each contact sending me a holding message and then not following up with any action. It’s a devastating derogation from open justice and transparency.
I will blog about the judgment if or when I receive it, and post a link to that future blog post here.
Finally, sadly – but as you might perhaps expect – my experience is shared by other court observers in other courts. Inspired by this blog post, Daniel Cloake (aka Mouse in the Court) posted a blog the day after mine (see “A fight for a contempt of court judgment”). He describes how, when trying to track down a judgment from a contempt hearing in the High Court, he was variously told over a (mere!) six-week period in 2022 that (1) the judgment didn’t exist (30th May); (2) “there is no judgment as such on the file, although it looks like Judgment is in the form of an order” (1st June); (3) that the interlocutor “didn’t really know as this is not something I normally deal with” (1st June); (4) that he’d have to pay for a transcript – likely several hundred pounds (6th July); before finally – (5) “After speaking to the Judge’s then clerk, I have been able to obtain a transcript of Arnold J’s judgment” (6th July).
The courts urgently need to consider how better to manage the publication of committal judgments.
UPDATE
The judgment has finally been published: Torbay Council v Tia Bench & Anor [2023] EWCOP 75 (T2).
Tia Bench was given a suspended custodial sentence on 28th June 2023. The judgment publicly reporting this custodial sentence was published about 22 months after sentencing.
There’s a note at the beginning of the published judgment saying: “This judgment was handed down orally at the end of the Committal hearing.Theapproved order of 28 06 2023 directed a transcript and publication of this judgement. Publication until now has not taken place.” I can’t see any date on the judgment indicating what date it was published (i.e. when “now” was), but on 23rd June 2025 I received an email from a Court of Protection Operations Manager sending me the link to the judgment and telling me, in response to my latest email (dated 18th June 2024) chasing this judgment, that: “The judge was informed on 24.04.2025 that the judgment “Torbay Council v Tia Bench & Anor”, reference TDR-2025-CRMS, has been published on Find Case Law“, so it sounds as though it was published by the end of April 2025. Nobody thought to inform me although I have been chasing this judgment for nearly two years.
The delay of 22 months in publishing a committal judgment is obviously unacceptable. It is all the more shocking because (as documented above) I was repeatedly asking judges and HMCTS staff for the judgment over that time span. My multiple requests were largely ignored I published my submission to the Ministry of Justice Law Commission Consultation on contempt of court, which referred to this case. It should not be necessary to involve the Ministry of Justice, or to publicly blog about the court’s failings, before a committal judgment is finally published.
Part of the delay in publication was also occasioned by a judicial decision (reported in an email with attached order on 3rd April 2025) to consult counsel (and me) about naming the contemnor, Tia Bench, in the published judgment. I had already publicly named her in this blog post and on social media posts, in accordance with the reporting restrictions in force at the time I did so. Since I was not provided with any information about Tia Bench, the actions she had committed that constituted contempt of court, or her sentence, I informed the judge that I was unable to see any reason why the usual rules (i.e. that a contemnor should be named) would apply. I also informed the judge that, in the event that any party made submissions that the contemnor should be anonymised in the published judgment, I wanted the opportunity to make an application for naming the contemnor. Despite subsequently asking (on 16 May 2025, 3rd June 2025 and 18th June 2025) whether whether further submissions were needed from me, and what decision the judge had made, I heard nothing more, until the email of 23rd June 2025 telling me that the judgment was now published. This lack of communication is also unhelpful for those of us seeking to support transparency in the court.
From reading the judgment, this sounds a very sad case – for the protected party, obviously, but also for Tia Bench. We have blogged recently about a couple of different cases of contempt of court where there have been concerns that the contemnor lacks capacity either to understand and comply with a court order, or to litigate the contempt proceedings. There is no suggestion of lack of capacity in this judgment, but it does record that: “Ms Bench has done her best to inform the court of her own vulnerability. The court has been told that she will do anything to avoid going into prison and having a sentence activated. The court understands that her own evidence is that she has a borderline personality disorder which has not helped her react appropriately to the injunction and to the suspended sentence“. (§16 Torbay Council v Tia Bench & Anor [2023] EWCOP 75 (T2)). Ms Bench – who was on benefits – asked to be fined rather than sent to prison (§10): she recognised that she should not have breached the injunctions (§10) and sought to reassure the court that she would not breach the injunctions (preventing her from spending time with the protected party) in future (§17). The court considered the possibility that these were “crocodile tears” and that she was merely “trying to convince the court of the fact that she will now turn over a new leaf” (§18), but the judge was willing to give her the benefit of the doubt. Instead of activating the suspended sentence of 14-days imprisonment (which must have been imposed in an earlier committal hearing of which I was previously unaware), the court re-sentenced her to a further 4 days, making a total of 21 days suspended for 12 months (§19). The judge warned: “I want Ms Bench to be absolutely clear that if she, in any way, associates with [the protected party] and continues to breach the injunction which will continue, that it is almost inevitable that she will now go to prison and the sentence will be activated. I am prepared to give her a second chance, but I want her to be absolutely clear that it is most unlikely that there will be a third chance”. (§20).
Those sentencing remarks, only recently published, were made on 28th June 2023. I wish I could be sure that any subsequent committal hearings concerning Tia Bench had been properly listed and any committal decisions published. Obviously, given the history of this case, I cannot be confident that this is so. I have now asked for confirmation that there have been no further committal hearings in this case since June 2023. (I received a same-day response to my enquiry on 24th June 2025: “There have been no further committal applications in this matter.”)
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 600 hearings since May 2020 and written more than 100 blog posts.She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
[1] According to the MOJ consultation paper: “Transparency data” is the term generally used to describe data that is published on the government websites pertaining to the work of different government departments. A wide range of information is published for the purposes of enhancing transparency, for example, prison population figures, spending for services for government departments, data about senior civil servants in the Cabinet Office, as well as more specific data such as outcomes of unduly lenient sentence referrals by the AG.’ (footnote 7, Chapter 7, p. 170).
[2] Ministry of Justice data on prison receptions records that over 100 people were imprisoned for contempt from 2020-2022 (quoted in footnote 3 on p. 1, Ministry of Justice Contempt of Court Consultation paper (July 2024). Based on my observations of custodial sentences handed down in the Court of Protection this is a surprisingly low number, even allowing for successful appeals – unless perhaps custodial sentences for contempt of court are disproportionally frequent in the Court of Protection compared with other courts.
Promoting Open Justice in the Court of Protection 