Authenticity of a “Living Will”

By Celia Kitzinger, 20th September 2025

Note: The protected party died on 8th July 2025.  I offer my condolences to his fiancée, his family, and his friends.

A document labelled a “Living Will” was at the centre of this case (COP 20006397) heard before Mr Justice Poole in the Royal Courts of Justice.

The family of the protected party (AB) claimed that this document was not valid, not applicable to his current situation, and not a genuine document produced by him of his own free will[1]. The hearing I observed on 30th June 2025 was supposed to be about the authenticity of the “Living Will” .

The issues of validity and applicability had already been dealt with in earlier hearings: the judge had ruled that the advance decision to refuse treatment (ADRT) contained within the “Living Will” was, if authentic, both valid and applicable (AB (ADRT: Validity and Applicability), Re [2025] EWCOP 20 (T3) (10 June 2025)).  So now the question was, is it authentic?

The family said it was not an authentic document. They alleged fraud (that it wasn’t AB who had written or signed the document) and undue influence (that someone  – unspecified – had persuaded or coerced him into writing or signing it). If the document was inauthentic, then neither the ADRT it contains, nor the expressions of wishes and preferences (e.g. in relation to contact with family) that are part of the document, could properly be taken into account in making decisions about his treatment and care. I haven’t seen the whole document, but a significant part of the Living Will is helpfully reproduced in the judgement cited above.

In the most recent blog post about this case, another observer and core team member of the OJCOP Project, Claire Martin summarised what’s happened so far:

The story is terribly sad. AB is a 43-year-old man who is being given medical treatment to keep him alive in a minimally conscious state.  There’s a document that AB made not long before his brain injury, that he called a “Living Will”  (not a legal term, but one which is commonly used), which includes refusals of life-sustaining treatments, including clinically assisted nutrition and hydration (i.e. the feeding tube, which is the main treatment currently keeping him alive).  There’s been a dispute about whether these treatment refusals constitute a legally binding valid and applicable Advance Decision to Refuse Treatment (ss. 24-26 MCA 2005).  That’s been resolved: the court has now ruled that they do.  But the family also says that the document is fraudulent (that it’s not his signature on it) or, if it is his signature, then it was made under duress or undue influence.  Meanwhile, the Trust continues to give him medical treatment which is quite possibly contrary to his legally binding instructions, and may also be contrary to his best interests – although these seem not  to have been properly addressed.  There is a bitter dispute between AB’s birth family and fiancée that is likely to be aired in court at the next hearing on 30th June-3rd July 2025. (Claire Martin, “Preparing for possible future lack of capacity: My advance decision to refuse treatment and the case before Poole J”). 

It was listed as a four-day fact-finding hearing, and because ADRTs are a particular interest of mine (both personally and on public interests grounds), I went along to observe in person.

In the event,  the case was concluded by the end of the first day.  The family decided not to pursue their allegations of inauthenticity.  The upshot of that was that the “Living Will” – including both the ADRT and the statements of wishes and preferences –  was treated as genuine. 

The authenticity of the “Living Will” document has different implications for the two elements within it. One part, the advance decision to refuse medical treatment (ADRT) is legally binding, as if the patient were making a contemporaneous capacitous refusal of treatment – and the court cannot interfere with that decision. The other part, stating wishes, feelings, and preferences, has legal standing and should properly be taken into account in making best interests decisions about the patient, but is not determinative. 

In a second published judgment about this case, Poole J writes:

There being no challenge to its authenticity, the ADRT within the Living Will is binding in that it has effect as if AB were now refusing consent to the identified treatment, namely CANH. However, other parts of the Living Will which addressed contact with family members in the event that AB were to lose capacity, which he has, are not binding under the Mental Capacity Act 2005 but are highly relevant to a best interests decision about contact. I was invited to resolve outstanding disagreements about AB’s contact with the Third Respondent, his fiancée, and with members of his family whilst AB is cared for at a hospice. I made determinations about contact in his best interests. (Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3))

I will deal with the two parts of the Living Will separately.

1. Advance decision to refuse treatment (ADRT)

Since the judge had already handed down a judgment confirming the validity and applicability of the advance decision to refuse treatment (Re AB (ADRT): Validity and Applicability) [2025] EWCOP 20 (T3), the court’s acceptance that it was authentic as well meant that the ADRT was now constituted as AB’s own legally binding decision.  This meant that it was not open to the court to make a ‘best interests’ decision about life-sustaining treatment – because AB had already made his own advance decision in accordance with §§24-26 Mental Capacity Act 2005.  A valid, applicable, and authentic ADRT means that it is unlawful to continue any treatment that has been refused – and that included, in AB’s case, clinically assisted nutrition and hydration. 

The judge made a short declaration that it was lawful to continue clinically assisted nutrition and hydration until AB could be moved to a hospice, but that transfer must take place within the next seven days.  During the period prior to transfer, there must be no escalation of treatment – no cardiopulmonary resuscitation and no antibiotic treatment.  At the hospice, he must be provided with palliative care and all life-sustaining treatment withdrawn, in accordance with his own binding advance decision.

It was a sombre and moving experience to hear this in court.  It was profoundly sad to understand that AB’s life would now come to an end. It was also (for me) empowering to hear the judge recognise the limits of his authority over AB and to witness how the decision-making power of clinicians and the court was blocked by AB’s autonomous and capacitous decision.

2. Contact – a statement of wishes and preferences

The issue of contact between the family and the patient was more complicated. The Mental Capacity Act 2005 permits us to make legally binding refusals of medical treatment in advance of losing capacity – and AB had done so.  But we can’t make legally binding refusals to allow people to visit us after we lose capacity; all we can do is express our wishes and preferences on the matter, and these should be taken into account (alongside any apparent current wishes and feelings) at the point at which best interests decisions need to be made about who visits us. In this case, AB had expressed a strong preference that members of his family should not visit him if he were to lose capacity – and he also explained why that was, expressing some very negative views about them.   Not surprisingly, the family were upset about what he’d said about them, and they did want to be at his bedside as he lay dying in the hospice. 

As it turned out, AB’s fiancée was content for his family to visit him (as they had been doing frequently ever since his brain injury). This was in part because he was unconscious and not objecting or showing any distress when family were at the bedside.

The Official Solicitor (represented by Katie Scott) made the point that “even if [his fiancée] and the family were able to come to an agreement on contact, it may be that the Official Solicitor will say, ‘well we can’t agree to that because of what he’s said in the Living Will’”.  I was pleased to hear this – it gave appropriate weight to his written views, and affirmed for me the value of advance statements of wishes and feelings, even though they’re not legally binding.

The Official Solicitor eventually decided “not to stand in the way of that agreement” between AB’s fiancée and his family. The reasons given were that the patient would be in ‘calm coma’ at the hospice and not in any way aware of his visitors, and – crucially I thought – that a key motivation in not wanting family visits was that AB had wanted to “protect [his fiancée] from the treatment that he perceives she will receive at the hands of his family” (i.e. they’d be unpleasant towards her).  The Official Solicitor’s view was that “what this court could do is provide her with that protection – set up ways of them visiting and [his fiancée] visiting with no chance of them meeting”. The parties agreed, and the judge approved, a “contact schedule” with buffer times to avert the risk of family and fiancée running into each other because “regrettably, that would be prone to result in conflict” (as the judge put it).

Implications for everyone planning ahead for future lack of capacity

This case is really significant for all of us concerned to plan ahead for a future when we may lack the mental capacity to make our own decisions about medical treatment, or indeed about anything else.  We will publish some more blog posts exploring this in more detail. 

For now, it is obvious that we need to ensure, as has always been the case, that our refusals of medical treatment comply with the statutory requirements for an Advance Decision as set out in ss. 24-26 of the Mental Capacity Act 2005.  In addition, the most striking lesson from this case is that we also need to pre-emptively protect ourselves against possible claims of inauthenticity on the grounds that we didn’t actually write or sign the document ourselves, or that we were coerced or manipulated into doing so. 

Compliance with the statute is not too difficult for anyone using one of the templates produced by competent charities in England and Wales.  (These tend to be much better in practice than those I’ve seen produced by solicitors. And they’re free!).  I recommend Compassion in Dying.  Beware – because there are bad templates out there and I’ve seen many poorly composed ADRTs as a result. I’ve also been dismayed by reliance on templates from other jurisdictions, including American “advance directives” (presumably the result of a google search) and templates produced by Swiss assisted dying organisations: these rarely comply with statutory requirements in England and Wales.

It’s less obvious how to protect ourselves against claims of fraud and undue influence.

In his judgment dated 10th June 2025 Mr Justice Poole summarises the main strands to the family’s argument explaining why he considered it necessary and proportionate to hear the family’s case that the ADRT is a fake document, or was signed under undue influence. He says:

51. Mere assertion of such a case without any grounds might well result in the Court exercising its case management powers to avoid a substantial hearing on those assertions. Here, however, I am satisfied that the Fourth Respondent’s [ i.e. the family’s] contentions merit proper, but proportionate, consideration by the Court:

51.1 There is evidence from the family that the style of language used in the ADRT […]  is not at all typical of AB.

51.2 The family has provided evidence that there are plain errors in the documents which suggest that they were not made by AB, for example in the pet-name he gave his grandmother.

51.3 The family has given evidence that some of the assertions made in the documents are at odds with AB’s communications with them at the time.

51.4 The documents were produced so late after AB’s brain injury. It is a legitimate question to ask why those who knew he had made the ADRT would not produce it if it had indeed been made before he lost capacity.

51.5 The document was produced after a significant falling out between [AB’s fiancée]  and the family and was relied upon by [AB’s fiancée] to seek to exclude the family from involvement in AB’s life and decision-making about his treatment.

Re AB (ADRT: Validity and Applicability) EWCOP 20 (T3)

Because the family decided, at the eleventh hour, on the first day of the projected four-day hearing, not to pursue their case that the Living Will was a fake or the product of undue influence, I don’t know how these arguments would have played out in court.  The two people who witnessed the signature to the Living Will were in court ready to give evidence, but they were never called on to do so – not least because there were concerns that there could have been potential criminal charges against them that had not been spelt out, and they hadn’t been given the opportunity to get legal advice.

The position statement from AB’s fiancée (represented in court on that day by Victoria Butler Cole KC[2])  helps me to understand how she had  planned to counter the allegations of fraud and undue influence. She says:  “There is no obligation on any person inviting a medical professional to rely on an ADRT to establish in the Court of Protection that it is a genuine document”.  So, the starting assumption must be that a legal document (such as an ADRT) is genuine, and allegations of fraud and dishonesty in relation to such documents must be proved on the balance of probabilities, based on evidence and not mere speculation. 

In this case, the evidence in support of the fiancee’s position that the ‘Living Will’ is a genuine document, freely created, and reflecting AB’s actual wishes and values includes:

  • the court has sworn witness statements from the two men who signed the living will as witnesses to AB’s signature
  • these two witnesses are close friends of AB’s, they don’t stand to gain anything by making fraudulent claims about his living will
  • the reason why the fiancée was not aware of the living will until August 2024 was because AB didn’t tell her he was making it as he didn’t want to “upset” or “worry” her
  • AB’s friends were not surprised that he produced a living will – they gave witness evidence that he’d told them that he had “got his affairs in order in case the worst were to happen”.  This followed a series of serious health issues (leading to several A&E visits due to breathing problems) in the run up to his cardiac arrest on 4th May 2025.
  • The advance decision to refuse treatment is consistent with AB’s views as expressed to those of his friends who submitted witness evidence (in writing) to the court, and with a tattoo he has which reads “Death is not the greatest loss in life. The greatest loss is what dies inside us while we live”. This is consistent with views expressed in the living will that prioritise quality of life over quantity.

The fiancee’s position statement counters the concerns raised by the family, saying (for example) that AB wrote formal professional documents as part of his work and was perfectly competent to do so (and this was testified to by a colleague); that he used different pet names interchangeably for his grandmother; and that the reason why the living will wasn’t brought to the attention of the doctors before August 2025 was because she was not aware of its existence and the two witnesses were not aware of the severity of AB’s brain injury (as borne out by contemporaneous text messages e.g. between one of the witness’ mother – an advanced health care practitioner – and AB’s fiancée, one of which reads “Thank GOD No Brain damage they will check his cognition when they wake him up”).

The fiancée points out, too, that she has nothing to gain from AB’s death: he has no property, no savings and no life insurance: there is no motive for her alleged dishonesty.

Finally, in relation to the allegation of undue influence, it would be odd (as Poole J observed in his judgment) to manipulate AB into signing the Living Will when he had capacity, and then to fail to bring the document to anyone’s attention for four months after his brain injury.

In any event, these arguments were not tested in court because the family did not pursue the allegations. But it worries me that the circumstances surrounding the Living Will, and the content of the Living Will itself, raised sufficient concerns to the judge that he considered it necessary and proportionate to hear the family’s case. The judge’s decision to hear the family’s evidence caused a significant delay in implementation of (what turned out to be) AB’s properly-made valid and applicable ADRT – a delay of many months during which he was subjected to medical treatments he had lawfully refused. I would want to guard against my own ADRT being vulnerable to this kind of scrutiny by the court. If anyone were to try to question the authenticity of my ADRT in future, I would very much hope that the court would “exercise its case management powers to avoid a substantial hearing“.

None of us would want our loved ones to be placed (like AB’s fiancee) in the position of having to defend the authenticity of our written documents after we’ve lost capacity.  We want to produce documents that are sufficiently robust to avoid this kind of challenge. The best I can come up with for now are these three suggestions.

1. Tell everyone about your ADRT and any other statements you’ve made about what you want to happen if you lose capacity to make decisions for yourself.  Tell your GP, and your family and friends – including people you really don’t want to “upset” or “worry” – because if things go wrong later, they will be much more upset and worried than if you’d told them at the time. Tell people who you know or suspect will disagree with what you want for yourself, because those are the people who might challenge the document and plant doubts in the minds of clinicians and the courts. 

2. Record, in writing, who you have told and what their views are.  It’s can be helpful to write (for example) “I’ve told my daughter that I don’t want cardio-pulmonary resuscitation and I’ve got my GP to formally record this in a DNACPR form. My daughter’s very upset about this – she wants me to live forever, but this is my decision and I’ve explained to her why I don’t want anyone to try to get my heart beating again if I have a cardiac arrest.  She doesn’t agree with me – so if you’re reading this in a situation where I’ve lost capacity, please give my daughter the emotional support she needs to cope with this, but please respect my wishes and don’t let them be over-ruled by what she wants”.  There’s no need to be hostile or angry with people who might disagree with you – but you do want to protect your right to make your own decisions, irrespective of their opinions on the matter.

3.  Tell people where your documents are stored. Give copies to people, including your GP and any professionals treating you. Take them to hospital with you. Make clear that people who know about them must produce them immediately in any medical emergency or if you’re found to lack capacity to make your own decisions (even temporarily). You may need to find ways of engaging with health care professionals who are uncomfortable with being informed about your decisions and may be dismissive or cavalier about your documents (e.g. refusing to look at them and stating airily, “I’m sure it won’t come to that”, in my own experience!).

There may well be other lessons to be learnt from this case – and from another very similar case which I’m currently following in a regional court, in which there are also allegations that P was subject to undue influence in making her Advance Decision to Refuse Treatment. 

The case continues after AB’s death

Finally, there have also been two further developments in this case since AB’s death. 

One relates to the duration of the reporting restrictions.  The family applied to extend the Transparency Order, which prohibits anyone from naming or doing anything likely to identify them, AB and AB’s fiancée, as the people involved in this case. It was due to expire at the end of August 2025. It was extended pending a judicial decision on this, after the family applied for the Transparency Order to be extended for a further 10 years. The family’s application is opposed by AB’s fiancée: she does not want to be subject to a court injunction preventing her from identifying her partner and herself as having been involved in a Court of Protection case. I was joined to that case as an intervenor, and support the fiancée’s position and the principle of open justice.

The other development relates to Poole J’s decision to direct disclosure of Position Statements, and to the very helpful guidelines about disclosure of Position Statements to observers, as set out in his second judgment in this case (Re AB, (Disclosure of Position Statements) [2025] EWCOP 25 (T3)). The family has applied for permission to appeal in the Court of Appeal.

We’ll be reporting on both developments in upcoming blogs.

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)

Footnotes

[1] For previous blog posts about this case see: “Determining the legal status of a ‘Living Will’: Personal reflections on a case before Poole J” and “Validity and applicability of an Advance Decision to Refuse Treatment: A pre-trial review” (both by Celia Kitzinger), and “Preparing for possible future lack of capacity: My advance decision to refuse treatment and the case before Poole J”, by Claire Martin.

[2] Alexis Hearnden and Catherine Dobson, also both of 39 Essex Chambers acted as counsel for the fiancée as well as Victoria Butler-Cole, and all three counsel were instructed through Advocate.  All three barristers were representing her because none of them was free for all four days of the hearing (as listed), so they decided to overlap instead, since it wasn’t realistic to expect to be able to find new pro bono counsel who was available for the entire period.

[3] I am grateful to all parties for disclosure of their position statements in relation to this hearing.

[4] Information about the position of the (biological) family is assembled from what was said in court and from the position statements of the other parties and from published judgments.  It does not come directly from the family’s position statement since I do not have permission to publish that document.

Should surgery be delayed while the legal framework relating to capacity is established?

By Sandra Preston and Amanda Hill, 15th September 2025

We observed this remote hearing (COP 13630253) before Senior Judge Hilder at First Avenue House in London on Wednesday 3rd September 2025.

It was Sandra’s first time observing a remote hearing, but Amanda has observed scores. We have divided this blog into two parts. First Sandra describes the hearing and highlights what she found most interesting, and then Amanda outlines the key points she took from it.

The protected party (P) is a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism. She can communicate using Makaton. Amanda observed a previous hearing about this case on 25th July 2024. At that time, P had been in hospital for a long time and was awaiting discharge to a specially adapted bungalow. It became apparent during this hearing that care and residence have broken down.  Now P is back in hospital and awaiting an urgent surgical procedure. The hearing became about authorising that. But where P should live and who should care for her after she left hospital is the long-term substantive matter before the court.

This was a fully remote hearing: the judge was in an empty courtroom. In all there were 15 people on the screen, which is a lot of people.

  • The protected party was represented by Ian Brownhill (via the Official Solicitor, her litigation friend).
  • Ulele Burnham represented the local authority, Suffolk County Council;
  • Samantha Paxman (with two hats on) was representing both Norfolk and Suffolk NHS Foundation Trust and NHS Suffolk and North East Essex ICB; at times SJ Hilder asked Counsel which hat she had on when she was speaking and if the other hat agreed;
  • Anna Bicarregui, was representing P’s sister and brother pro bono. (P’s sister and brother were also present in court.)

There were also solicitors and professionals representing the Trust, ICB and County Council on the link.

Summary of the hearing – By Sandra Preston

The real issues between the parties at this hearing, as I understood them, were what medical treatment P should receive, when and on what legal basis, and whether a suitable package of care and support could be provided for her in the community once she was fit for discharge from hospital.

After requesting and receiving the link and a copy of the Transparency Order from the Court staff, I also submitted requests to each of the four parties asking them to share their Position Statements.  Three of my requests were granted: the notable exception was the Official Solicitor, from whom I received the standard template refusal.  Following the guidance in Re AB (Poole J) I wrote to ask SJ Hilder to direct the Official Solicitor (OS) to disclose their PS, which the judge did in her no-nonsense way at the start of the hearing.  Fifteen minutes later all the observers had the necessary Position Statements and the hearing got underway.

We learned that P had resided for some time in an acute hospital setting where previously there had been concerns about her capacity to make decisions about her hydration and nutrition.  It appeared that her treating clinicians had now decided she had capacity in this regard and she was consenting to a nasogastric feeding regime.  She required gallbladder surgery, having had a drain fitted as a temporary measure to ease her pain and to buy time while the various parties deliberated over the legal basis for the operation to go ahead.  It was unclear whether this would necessitate an application to the court, or whether P was being treated as capacitous in this regard.  Her family members were concerned that surgery, which had been planned for a specific date, and which was considered to be in P’s best interests, should not be delayed unnecessarily.  They also wanted the surgery to proceed while P was still in a hospital setting.

The OS’s overriding concern appeared to be how this matter was being litigated. P was being deprived of her liberty in a hospital setting where, if she was not being treated as capacitous, she was effectively in hospital without a DoLS.  It was a matter for the acute hospital Trust to decide under what legal basis they could proceed or whether they would need to apply to the court.  But they had less than two weeks until the date planned for surgery.

SJ Hilder’s view was that it would be wrong for planned surgery to be delayed while legal framework issues were resolved.  She instructed P’s representatives to make express representations to the acute hospital Trust seeking answers to the list of questions that had been drafted for the clinicians and warning them about the need for a proper legal framework.  She also wanted confirmation as to whether the insertion of the nasogastric feeding tube had been a capacitous decision or a best interests one.  She set out a clear timetable of the steps that needed to be taken and by when, so that the surgery could proceed as planned. 

SJ Hilder then moved on to address the main issue which was what progress had been made in identifying a community setting to which P could be discharged following surgery.  The primary position of all parties, including family members, was that if and when an appropriate care package could be identified, P’s needs would be better served in a community setting.  The LA put forward their concerns about the identification of appropriately skilled carers, the absence of which could cause the community placement to fail.  No options were immediately available but three potential care providers were currently under consideration.  SJ Hilder set some firm deadlines for when these providers would need to put their cards on the table in terms of being able to meet P’s post-surgery assessed needs.

SJ Hilder set the date of the next two-hour hearing for 2pm on 14th November (coincidentally the date on which one of the family members was due to give birth) and again gave directions as to what she expected to happen in the interim.  This included an update from the surgeon as soon as practicable after the operation had taken place, which she considered it was the responsibility of the parties to obtain.  If P was considered clinically fit for discharge from hospital following the operation and if the parties could agree on a community care package/placement, she would accept a COP9 application from any of the parties to vacate the 14th November hearing.  If she had not received this by 4pm on 29th October, the hearing would go ahead.

Reflections I – By Sandra Preston

For an observer coming to this case for the first time, it was no easy task to establish who everyone was on the screen and what their roles and issues were.  The Position Statements helped greatly in this respect.


The judge ran this hearing with clinical precision, setting out clearly what her expectations were and fixing firm deadlines by which actions needed to have been completed, and making it evident to representatives when she was less than pleased with their response (eg “it’s not helpful to be told a party has not yet made its mind up”). It left me feeling confident that if the various representatives did what she required of them within the timescales set, progress would be made on the next occasion that would be beneficial for P.

One thing I noticed was that SJ Hilder sought permission from the representatives before addressing family members.  The family members were clearly much more closely involved and better placed to answer her questions (which is more often than not the case) and it made sense to me for her to direct her questions to them rather than via their representatives.

It was disappointing that Counsel for the Local Authority did not know the name of one family member and had to be corrected after continued use of the name of a well-known actor rather than the person’s actual name.  The eye-rolling of that family member concerned each time it happened suggested she felt the same way.

Reflections II – By Amanda Hill

I found it interesting reading Sandra’s reflections, as she picked up something that I had noticed too – the etiquette or unwritten rules of the courtroom and the impact this can have on family members and proceedings as a whole – particularly the matter of the judge speaking directly, or not, to family members.

Court etiquette is that a judge speaks to a party through their legal representatives. Represented parties do not normally get to speak (unless they do so as witnesses), only their barrister does. At this hearing, it was clear that P’s sister in particular had enormous knowledge to be able to help the judge make her decisions. To me it felt an unnecessary step for the judge repeatedly to ask Counsel for permission to speak to her clients. On at least three occasions that I noted, P’s sister put her ‘yellow hand’ up and the judge asked her Counsel if she could speak to her client directly (with ‘yes’ being the answer each time).

Would the ceiling of the court come crashing down if court etiquette was suspended with agreement at the start of a hearing, in suitable circumstances such as I think this one was? There have been previous hearings when these family members have been present and addressed the court, so it wasn’t the first time they were in court.  It was already a bit of a strange hearing protocol-wise, as yellow ‘MS Teams’ hands were often popping up as the judge was speaking.  Just as family members knew more about P than did Counsel, so too the professionals had more knowledge of what was happening on the ground than did their Counsel, as it was a fast-moving situation.

I understand that this etiquette has developed over time but nothing formal is written down. Reasons for organising speakership in this way are:

  • A person has chosen to be represented, so it’s about protecting their rights – and they may not wish to speak in court
  • A party may unintentionally mislead the court in what they say, which could get them into trouble
  • The judge has to deal with both evidence and submissions, and contributions from an individual unaware of the distinction can cross that boundary  
  • It’s a hearing and not a meeting and so only one representative per party speaking prevents chaos.

These are of course valid reasons. But I just wonder whether the unwritten rules could be bent more when it makes sense.

Moving to the interventions by the family in this hearing, the family members were concerned that P needed the gallbladder surgery urgently, and after extensive discussions with the clinician, in P’s sister’s opinion, it was the right thing to do for her sister. (Her brother didn’t speak but I know from their position statement that he agreed). There was discussion during the hearing about whether a less drastic solution was possible. P’s sister asked to address the court (via putting her yellow hand up) and I’m reporting the gist of the conversation (I don’t touch type, so my notes won’t be completely verbatim).

P’s Sister: I am thinking that people are getting muddled …the drain was a short-term measure as surgery was not possible after infection …I went through the risks and benefits with (the senior surgeon) and he is happy that it is in her best interests to have surgery as soon as possible …. The only way he can stop the pain and infection is removing her gallbladder, and, like an appendix, we can live without it.  

The Judge’s reply to her: Yes, the order reflects confusion….. So I want the order changed to say that P has not had surgery and you say that you support it. This is an area that lawyers get irate (about) as P has to give her own views. (They) are not trying to delay (surgery) but (we) are trying to ensure that there is a lawful framework for surgery.

I found the judge’s choice of words interesting: “lawyers get irate as P has to give her own views” (that is via her Litigation Friend, the Official Solicitor). This can be confusing to family members – many of whom don’t fully understand (or don’t accept) that it’s not them who represent a person who does not have capacity, but rather the Official Solicitor.  However, it was clear in this case that P’s sister knew more than the Official Solicitor. This exchange reflects the in-depth knowledge of her sister and how she was trying to get the best treatment for P. She was worried that surgery would be delayed. But the procedure has to be properly authorised by the court – and P’s sister isn’t the one who can give approval, that’s the judge.

The judge was on top of things, listened to P’s sister, and recognised that the order needed to be changed. P had been asked herself but had said that the decision was “too big” for her. But she had not been assessed as lacking capacity. So, the use of the term ‘best interests’ by the surgeon to P’s sister was also problematic for the court.

I suspect that the outcome will be that the surgery does go ahead, once the court is satisfied as to the legal framework and has the appropriate answers from the surgeon.

There was a similar exchange towards the end of the hearing. Counsel for P (via her Litigation Friend the OS) was concerned about the nature of the surgery and whether it would be the least invasive option, and what that meant for recovery time. Again, P’s sister asked to intervene. She stated that the surgery would be keyhole and that the surgeon hadn’t done any other type of surgery for this issue in six years. At this point I saw Counsel for P do a physical ‘thumbs up’ (with his real hand) on screen.

The third intervention from P’s sister that I want to highlight was towards the end of the hearing. She is playing a vital role on the ground as she is effectively acting as interpreter for P, using Makaton (and having to fit this in with a full-time job). Hopefully the Trust can find personnel who know Makaton to reduce the reliance on P’s sister.

During the discussions about future hearing dates, it became apparent that Ian Brownhill had stepped in at fairly short notice for another barrister. He said that he would not be available for the November hearing. But the judge did ask if, for continuity, he could be available for an urgent hearing about the proposed medical treatment if one was needed. This exchange shows how much juggling legal teams and the court have to manage, and how family can provide some continuity.

At the time of publication, the surgery should be done and we wish P a good recovery. We hope to be able to report on how the case is progressing if the 14th November hearing goes ahead.

Sandra Preston is the daughter-in-law of a P who was involved in Court of Protection proceedings, as she describes in her earlier blog post, written jointly with her husband, P’s son, Joe Preston. You can read it here:  A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest. Sandra can be contacted through the project email on openjustice@yahoo.com.

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).

An emergency statutory will for a dying man

By Jenny Kitzinger, 11th September 2025

Mr R is a 72-year-old man who has a psychiatric illness and appears to have an (unidentified) underlying neurological condition which has contributed to rapid mental and physical decline over the last two years. He is in end-of-life care and expected to die within days. He was the protected party at a hearing (COP 20020839) I observed remotely on 2nd September 2025 at First Avenue House before DJ Mullins. It was listed as a directions hearing about a statutory will.

A statutory will is a last will and testament authorised by a judge in the Court of Protection when the protected party lacks capacity to make a will themselves, and when it is in their best interests for the will to be made. There’s more information in a blog post by a lawyer: “Statutory Wills: A barrister explains” and a blog about a different case here: “Judge approves statutory will in contested hearing”. For an example of academic analysis of statutory wills and discussion of case law see “Doing the right thing under the Mental Capacity Act 2005”

I’m personally interested in wills as I’ve just completed an arduous process of being executor for the will my father wrote, and I’m particularly interested in statutory wills because I’m a lay Deputy for Property and Finance for my brain-injured sister, Polly Kitzinger. My deputy role means that I have responsibility for ensuring that decisions Polly’s unable to make for herself are made in her best interests. A Deputy cannot make a will for the person they act for, but they can make an application for the court to do so, and they (or anyone concerned for the person’s welfare) can draw up a draft will for the court to consider.

Most statutory wills are approved by the court without a hearing. They are not problematic – nobody contests them. So there are not very many opportunities to observe hearings and I was pleased to be able to get to this one.

Background

Despite the fact that Mr R has been found to lack capacity to make a will, he is still able to communicate his views about the sort of will he wants. He used to be married (now divorced). He has a son and daughter from that marriage who he’d like to be executors of his will and to inherit everything.

He also has an ex-partner who used to live with him. He’s told his children, and separately also said to an independent social worker and a solicitor, that he does not wish his ex-partner to receive any benefit from his estate. (His main asset is a relatively modest house).

The problem is that Mr R’s existing will, drawn up in 2014, makes his then-partner co-executor (along with his son) and doesn’t name his daughter as executor. The 2014 will may also still give his ex-partner some claim to live in his house (as she was doing when he wrote the 2014 will). This claim may be (at least theoretically) possible despite the fact that the relationship ended soon after Mr R first became unwell. A few months after he was admitted to hospital (in Autumn 2023), she moved out of his house, ended the relationship and returned to live in a house she owns. They’ve not seen each other at all now for well over a year, and Mr R is clear that he does not want to see her.

Many people in this situation might make a new will – but Mr R cannot do that because he now lacks ‘testamentary capacity’. He understands the nature of his relationships (e.g. that his ex-partner is no longer in his life, and the importance of his children to him) and he’s clear about what he wants to happen in terms of inheritance. However, when visited in hospital and subject to a formal capacity assessment, he said that he thought his assets were “worth nothing” and that his house was “gone”- so it has been determined that he does not understand the nature and extent of his estate, which is one of the key tests for ‘testamentary capacity’. (See Box 1)

This is the context in which an urgent application to the Court of Protection has been made by his children for a ‘statutory will’ – a will authorised by the court in the best interests of a protected party.

The statutory will they propose would remove Mr R’s ex-partner as co-executor and also take out any reference to her rights of occupancy. This would allow Mr R’s children to inherit the house, as they would have done anyway, but ensure this was free from any potential claim from the ex-partner in regards to living in the property.

I do not know the views of the ex-partner on all this as she was not represented in court, and had submitted no response since being notified of the hearing and served with the relevant papers. Her sister had sent a text message to Mr R’s son saying that no response could be expected from the ex-partner until she’d had time to seek legal advice.

This was an upsetting set of circumstances for all concerned – with time, money and stress being devoted to the issue of inheritance as a man lay dying, and it was clear that the case was very urgent indeed.

The hearing

Counsel for the applicant son and daughter was Jennifer Lee, Pump Court Chambers (and Mr R’s daughter was also present online, sitting with her solicitor.)

Counsel for Mr R, by his litigation friend the Official Solicitor was Georgia Bedworth of Ten Old Square

There were very clear and helpful position statements (written the day before), which I’d been sent in advance along with the Transparency Order (in compliance with the guidance from Mr Justice Poole in Re AB).

The position statement from applicants sought an order for authority to execute the Statutory Will for Mr R emphasising that the state of his health made the matter urgent. If the Court was unable to do that (e.g if the ex-partner submitted objections that left the judge of the view that there was doubt about Mr R’s best interests), they wanted an interim order authorising execution of the proposed statutory will (as a holding position) to be followed by an urgent contested hearing.

The OS agreed with the applicants that it was in Mr R’s best interests to authorise a statutory will in the terms proposed. In her position statement the OS noted that as yet no response had been received from the ex-partner – and that it was possible that she might dispute some of the facts – but that Mr R’s wishes and feelings, “which were expressed in the absence of either of the Applicants” were “a factor of magnetic importance in assessing Mr R’s best interests”.

At the hearing there was still no information from the ex-partner and she did not attend.

A draft order agreed between the applicants and the OS had been shared prior to the hearing and the judge said the final approved version would be sent to me when it was ready. (I’ve not yet received it.)

The hearing lasted just over an hour and this included breaks for counsel to read the draft order and consult with one another about minor amendments.

Part of the hearing involved what information Mr R’s ex-partner been given and the opportunity she’d had to respond.

The ex-partner’s (non) involvement in the case – notification and serving

When applying for a statutory will it’s important that people who might be affected by it (e.g. might have expectations as beneficiaries) are informed about the application.

At a previous directions hearing the judge had (as is pretty standard in these cases) ordered that the OS be invited to represent Mr R and also that the ex-partner be notified of the application.

The judge explained that he’d had some reservations (prior to being able to consult the OS) about going so far as to ‘direct full service’ on the ex-partner as this meant revealing extensive details of Mr R’s medical and financial situation to her.

However, the OS has subsequently gone on to accept the invitation to represent Mr R and, after discussion with the applicant’s counsel, the decision had been made to ‘serve’ rather than simply ‘notify’ her.

In retrospect, this seemed significant not least because the only response to the paperwork being delivered to the ex-partner’s house had been a message from her sister to Mr R’s son suggesting that only a covering letter had been delivered and saying “As this was so late in reaching us you can’t expect a response from [ex-partner] until she’s taken legal advice”.

Some time was spent clarifying the implications of this message. The photograph accompanying the text actually showed a set of paperwork beneath the cover letter which the solicitor charged with serving the paperwork had confirmed ‘accord in size to the paperwork I served’ – and the court also had the signed statement from this solicitor that he had served the paperwork.

The Judge concluded that it would be correct to say that the ex-partner had indeed been ‘served’ (rather than just notified) and he noted that the text message from the ex-partner’s sister simply gave ‘a reason for not responding’. He recorded the fact that there had been no response from the ex-partner (such as indicating that she opposed the application and giving her version of the facts and why she thought the statutory will was not in Mr R’s best interests).

Why authorising the statutory will is in Mr R’s best interests

The rest of the hearing was spent on the substance of why all parties in court (i.e. the applicants and the OS) believed that a statutory will was in Mr R’s best interests.

The OS supported removing the ex-partner as executor and replacing her with Mr R’s daughter (to become co-executor with Mr R’s son) because Mr R had (in early 2024) “when capacitous” given his son and daughter Lasting Power of Attorney (for property and affairs & for health and welfare) and his current expressed views now (even though incapacitous) were that he trusted his children.

The OS believed it was also in Mr R’s best interests to remove the statement referring to the ex-partner’s right of occupancy that was present in the 2014 will.

Mr R’s current wishes were “a factor of magnetic importance” – and as far as ‘past wishes’ were concerned the removal of the statement about his then-partner in the proposed statutory will could be consistent with Mr R’s wishes at that time too. The 2014 will stated that his children should inherit his house but that his then-partner, should have the right to live there unless she wanted to leave or got married to someone else. The OS’s position was that, arguably, the fact that she had already ended the relationship and moved out meant that, even under the terms of the 2014 will, her right to occupy had ended. But the problem was that these caveats in the will were directed to the period after Mr R’s death. It is not clear how the will applied if his then-partner had broken up with him and had moved out while he was alive. This option seems not to have been considered at the time, and the will was written in an ambiguous way that could leave the door open for potential litigation on this point.

The OS’s position was that the rights intended to be granted in the 2014 will were “conditional rights” founded on having a close relationship financially and emotionally – and this was no longer the case

The judge accepted this position, noting that the clause in the 2014 will was: “understandable in the context that he wanted to protect his partner”, but that:

 “There was perhaps a gap in matters considered – it doesn’t address what happens if the relationship ends before Mr R’s own death. But if he HAD been asked about that it’s not much of a stretch to suggest it is very likely that he’d have thought her right to occupy should end.”

The OS’s position was that it was in Mr R’s best interests for the statutory will to reflect the significant change of circumstances (that the ex-partner was no longer in a relationship with Mr R, and the property was no longer her home) and made the point that removing any reference to right of occupancy for the ex-partner was practical, since she did not live there, and the house had actually been put on the market (and an offer accepted by his LPAs), and there were no tenancy rights under the housing act. The OS’s position was also that, if Mr R were able, he’d take into account the consequences of NOT making a statutory will – which would carry a (possibly small) risk of the ex-partner coming forward to make a claim, which leaves scope for expense and distress for his children in fighting the case.

The hearing concluded with some discussion of minor amendments to the order – but with the judge executing the order authorising the statutory will.

Reflections

This is a situation that could confront any of us – and our partners, ex-partners, family and friends.

Rights of occupancy are an interesting feature of wills that have come up in discussion with several of my friends – where, for example, their mother has died and their elderly father now has an (often younger) partner who has moved in with him. I suspect that a right of occupancy clause for the new partner or setting up a ‘life-time interest’ trust is a common feature in wills where an individual wants both to take care of his current partner and also to provide an inheritance for his children/grandchildren (by a previous marriage). Even when the (relatively new) relationship lasts until the death of the home-owner and they retain mental capacity to the end, the situation has its complexities – but I’d never thought about the implications of such a will after a break-up and how this is further complicated if the testator loses capacity (before or after the breakdown of the relationship). I suspect this gap in considering such implications is also common among people writing wills – and perhaps even some lawyers who help people draw up wills. (I would welcome correction on this last point.)

The case I watched highlights the importance of ensuring that wills are written very clearly and different changes of circumstances are considered.

This case also shows how quickly and efficiently the Court of Protection can act when needed.

Delays in bringing cases to court, or delays once they reach the court, are a common problem: many of the Open Justice Court of Protection Project blog posts highlight the glacial slowness with which cases can reach and progress through the courts.

Sometimes, of course, delay can be purposive and constructive – e.g., when it gives times for mediation. In this case, though, the unpredictable but imminent prospect of Mr’s R death meant the urgency was self-evident and there was no time for mediation. As the judge commented

“Many applications for statutory wills have due consideration over 3 to 4 months with the OS helpfully guiding applicants to a mutually agreed resolution but this one was urgent and I am grateful to the OS and the applicants working together on this.”

It is also clear that the urgency of the case increased even during the course of the application being made because Mr R’s feeding tube came out after his children had completed the CoP application form for a statutory will, but before the first directions hearing (see timeline in Box 2).

In this case, I think that (on the basis of the evidence available at the time) the Court has come to a timely and pragmatic solution that tried to consider and conform to Mr R’s wishes as much as possible. I hope that the hearing has helped to avoid the mess that could have been left if no statutory will had been approved. It is, however, unfortunate that court intervention for Mr R was needed, especially at such a difficult time for anyone who cared about him (or, indeed, had cared about him and shared a life with him in the past – however difficult the end of that relationship might have been).

I do not know the ex-partner’s views on the decision or what her expectations of Mr R were. I do think, though, that there is an argument for trying to ensure provision (for ourselves or others) during our lifetimes that cannot be withdrawn when a will is changed. It is not uncommon for someone who has been a main carer for many years and ‘promised’ certain benefits in a will to find those promises have not been realised in the final will and testament because the person who’s died simply changed their mind. But under those circumstances the potential legatee will have no grounds for challenging a will unless for example, they can prove undue influence or a failure to make ‘reasonable financial provision’ for certain types of dependents.

Anyone can change their will at any time when they have capacity to do so: that’s one of the reasons so many murder mysteries revolve around will making – and why wills can result in family conflict and expensive litigation.

Another lesson from this case is the need to keep wills under review. One option open to Mr R when he still had testamentary capacity may have been either to change, re-affirm or clarify his will after his partner ended their relationship.

It’s possible that Mr R might have had testamentary capacity in early 2024 after his partner had moved out (he apparently had the motivation and relevant mental capacity to appoint his children as his LPAs in that same year). It is also perhaps possible that he knew (or could have been informed by a clinician) that he might lose testamentary capacity in the near future. For me, then, this case is a reminder that carefully writing or rewriting a will should be one potential priority not just because we think we might die (which is inevitable) but because we might lose testamentary capacity – which, of course, a significant proportion of us are going to sometime before we die.

Jenny Kitzinger is co-director of the Coma & Disorders of Consciousness Research Centre and Emeritus Professor at Cardiff University. She has developed an online training course on law and ethics around PDoC and is on both X and BlueSky as @JennyKitzinger 

Decision to remove a professional deputy (without a fact-finding hearing): DJ Clarke in action

By Celia Kitzinger, 9th September 2025

Almost exactly four years ago, Ms H was appointed as a Court of Protection Deputy for the protected party in this case (COP 11126846). It’s not been an easy role.

The protected party (P) is a young man who sustained a brain injury as a child and has, in adulthood, been assessed as lacking capacity to manage his property and affairs.  Following  the childhood brain injury, he was awarded several hundred thousand pounds of financial compensation, which is in a court account now managed by his Deputy. (For information about the role of a Deputy, take a look at this very readable and engaging blog post: What does a Deputy for finances do? by Ruth Meyer, who is herself a professional Deputy).

Initially, P’s sister acted as his Deputy – but after five years or so, she resigned.  She was replaced by another relative.  That second Deputyship broke down as well.  A professional (panel) Deputy was then appointed by the court, but that Deputy then requested to be discharged due to accusations from P about the management of his finances.  The current replacement Deputy is another professional Deputy, Ms H, appointed by court order on 20th August 2021.

According to the judge, “it’s fair to say that Deputyship is not without its challenges”. 

Ms H  says (diplomatically) that “communication with [P] has … been difficult throughout my time as Deputy”, and she charts a history of problems, beginning soon after she took up the role.

In 2022, when P moved to a supported living setting where he would be responsible for paying his own utility bills, his support network – including the social worker – agreed that the Deputy should take over management of his Personal Independence Payments (PIP) to ensure his utility bills were paid.  P objected and ever since then has made repeated requests for his PIP to be returned to him (or to a member of his family). He’s now living with his mother and contributing to household bills – but despite the Deputy’s repeated requests has never sent a breakdown of his household contributions.  He’s also occasionally requested large amounts of money from the Deputy including for holiday flights, and a new car for his brother.

Then, in June 2023, P himself filed an application inviting the court to revoke the Deputyship as he believed he’d regained capacity and was finding the Deputy “overly controlling and restrictive”.  (Although this case began with P as the applicant, he was subsequently replaced by three family members – his mother, brother and sister – who are the current applicants.)

In response to P’s application to discharge her as Deputy, Ms H filed a COP 5 objection to being removed as P’s Deputy but unfortunately the court considered the capacity evidence without having the COP 5 objection in front of them (the Deputy not having been informed of the application until the end of October 2023), and made the decision to discharge the Deputy.

In June 2024 the Discharge Order was set aside, following receipt of a letter to the court from the social worker who’d given the capacity evidence filed by P.  She retracted her evidence as having been based on incomplete information.  Ms H was reappointed on an interim basis.

Alongside his application to dismiss the Deputy, P had also completed some Lasting Powers of Attorney forms, purporting to appoint family members to act in the event he lost capacity in the future.  Separate proceedings were brought by the Public Guardian and the court found P lacked both the capacity to manage his finances and also lacked capacity to execute the Powers of Attorney.  This means a Deputy is still needed.

There was a Dispute Resolution Hearing (DRH) in July 2024, which was attended by P and some of his family members (including his mum), a legal representative for the Deputy, and by the person who was Deputy before Ms H had been appointed. The DRH did not resolve the issues.

There were some ineffective listings and delays  – at least one hearing was postponed because the Special Visitor report had not been provided by the date specified in the order- and over this period Ms H continues to report that P and his family are refusing to meet with her, and that she’s not received any response to a proposed “working together” agreement.

I’ll describe what I saw in court across two hearings I observed, both in person, before DJ Lisa Clarke at First Avenue House in London: one on 8th May 2025 and the next on 8th August 2025, which concluded the proceedings.

May hearing

This hearing was supposed to consider the question of who should be P’s Deputy.

The judge, DJ Clarke, said in her opening summary that “On the occasion of the last hearing P attended with his mother, brother and sister, and we had a remote interpreter assisting the mother.  There was little engagement with Ms H despite her presence at the hearing.  P and all his family members chose to leave before the hearing concluded”. 

This was a pertinent observation to make at the beginning of the hearing on 8th May 2025 because neither P nor any of his family members were present. They’d submitted an application for the hearing to be adjourned, saying that they were “experiencing health issues” and that “the person most able to represent [P] is feeling emotionally drained”. 

The judge released the interpreter who had come to court to assist P’s mother, and then said to Ms H (attending remotely due to her own health issues that day): “I have not made a decision as to whether to adjourn this hearing […] Before I make a decision, I’d like to hear from you as to what you think has been going on, and what course you think I should take”. 

Ms H said that at the last hearing she’d had no objection to a change of Deputy “but I’ve changed my mind now.  He’s not going to engage with any Deputy, so I think it should be me at present”.

The judge ran through what she had done to progress this case, which included making it clear that “it is in [P’s] best interests to have as much engagement as possible [with the Deputy] to find a viable working relationship”.  She had also made directions that the court bundle should be provided to the applicant family members and that Ms H should write offering dates for a meeting and that the family should respond agreeing to a date, or offering alternative dates, or explaining why they would not meet with her.  Ms H had offered some meeting dates but the family had declined them, failed to offer alternative dates, and not given any reasons beyond not wanting to work with Ms H. There had also been no response to the proposed “working together” agreement. 

The judge said that the application to adjourn the hearing was “poorly and improperly constituted – it is not clear who is making it, it is not signed or dated, and there are no supporting documents”.  She also commented on the family’s “wholesale failure to comply with directions” and “correspondence which suggests resistance”.  On the other hand, “they are applicants in person, not legally qualified or represented”, and one of the accompanying documents mentioned that a family member had been hospitalised.  She was also “mindful that at the hearing on 6th February, it was abundantly clear that there was resistance from family members and from P himself to your continuing as Deputy”.

DJ Clarke reflected on the “over-riding objective” (of enabling the court to deal with cases justly and at proportionate cost, Civil Procedure Rule 1.1) and considered herself to be in a “finely balanced position”. She said:  “Either I simply dismiss the application and continue your appointment either as interim Deputy or convert it back to a full Deputyship; or I make a Directions hearing, with directions expressing the need for medical evidence for non-attendance and non-compliance – and if there is no medical evidence, what the outcome will be: dismissal of the application to dismiss the Deputy.  I am conscious there have been numerous previous Deputies and relationship breakdowns.  It is unlikely to be in [P]’s best interests to repeat this in the future.  There are limited resources of this court and a need to apportion them appropriately.  On balance, and with a degree of reluctance, I’m going to adjourn.  If I do not, there will be further applications to the court that will lead us back to the same place we are now.  There will be one more go.”  (For a different case in which the judge did not adjourn a hearing and went on to appoint a professional deputy in the absence of the parties, take a look at this blog post: “ When parties don’t appear in court and judge goes ahead anyway: Appointing a professional deputy”).

The next hearing was listed for 12 noon on 8th August 2025 (“the earliest date I have”) – with effectively the same directions as last time, but with a form of ‘unless’ order (i.e. “an order directing that a specified sanction will be imposed unless the party concerned takes a specified step before a given date. The sanction specified occurs automatically on a failure of the party to comply with the unless order; no further order is required: CPR Rule 3.8” LexisNexis definition).  The judge said:  “The terms of the ‘unless’ order will be that if the applicant doesn’t comply with the order to file by 27th June, the application will be dismissed and the court will make an order converting the interim Deputyship to a full Deputyship”.

I didn’t see what else the judge could realistically do under the circumstances.  I know how hard judges work – this judge in particular – and how crowded their lists are.  It’s dispiriting to list hearings that people don’t engage with.  It wastes court time – and it wastes public money. 

It also really can’t be in the interests of the protected party to have a Deputy he declines to engage with, and a judge trying to figure out what’s in his best interests in the absence of the family members, who clearly have views too.

August hearing

The start of the hearing was delayed. I found myself seated next to the family in the waiting room, so I introduced myself and gave one of them (she turned out to be P’s sister) my business card, with a link to the Open Justice Court of Protection Project website on it, so that they could find out more about the Project and what we do. I think one of them used a mobile phone to check us out.

The family did not seem perturbed by my role – although they did talk among themselves in their native language (which I don’t speak or understand), and at one point I think I was being pointed out to P himself, who seemed unworried by my presence as far as I could tell. The family seemed well-disposed towards me: when the hearing ran over the lunch hour – it didn’t end until 2.45pm – P’s sister kindly gave me a packet of crisps during a short adjournment to keep me going! (Reminder to self: always take a snack when court-watching!)

The judge opened the hearing with a comprehensive summary of proceedings so far, including information I’d not known before about P’s finances: the amount remaining from his compensation pay out, how much he receives in PIP (which the Deputy manages), and the approximate amount of Universal Credit (which P receives direct).  It seems his expenditure results in a regular monthly deficit.

Family failure to follow directions to date

The judge then asked whether any of the applicant family members had filed medical evidence relating to their failure to attend the last hearing. They shook their heads.  The sister said, “it was very personal – I’ll keep it to myself”. There was mention of the mother’s brother having been hospitalised – but no evidence or further details were provided.

The judge moved on to ask about whether there had been a meeting with the Deputy (no) and why not: “We said right at the beginning, we just felt really disrespected by her and her team, and that we are not going to be engaging with her in any way whatsoever. We don’t want to be engaging with someone who is so hostile to my brother”. The judge responded: “You made your position clear before, and I directed that you must respond to her.  Did you?”

“No.” the sister replied.  “Because as I said before in court, no way can we repair the relationship between us and her”.  The Deputy confirmed that “I received nothing from them”.

The issues today

The judge then summarised the situation, and the issues before her today.

There is clearly a dispute between the family, and [P], and the Deputy about difficulties in relation to the Deputyship from 2021 onwards.  In order to understand what happened, I would have to have a detailed fact-finding hearing.  On its face, that would appear disproportionate and not necessary to resolve the matter, which is about the Deputyship going forward.  I clearly understand the family’s position is that Ms H should not continue to be Deputy.  That is also [P’s] view.  They would all prefer if [P’s sister] was appointed as his Deputy going forward.  If I am not minded to appoint [P’s sister], I am asked to appoint an alternative panel Deputy.  Ms H’s position is that there are likely to be similar problems with any Deputy, and that continuing to change the Deputy is not in [P’s] best interests, and that she continues to wish to try to work with the family. And as I understand it, she maintains that she should remain as the Deputy, but that in the alternative a panel Deputy should be appointed in preference to a family member.

Should there be a fact-finding hearing?

The judge said she would canvass everyone’s views as to whether or not she should hold a fact-finding hearing – which would be a 3-4 day hearing.  There was a short adjournment for family members to step outside the court and see if they could resolve the question between them. 

Despite the judge’s best efforts to explain, it  wasn’t clear that the family members all understood what would be involved in a fact-finding hearing, as became apparent when the hearing resumed. (The mother spoke in her native language: I’ve quoted the interpreter’s version of her words).

Judge:     Ms H?

Ms H: I think a fact-finding hearing would be long, costly and not in [P’s] best interests. Resolving the issue of who is to be Deputy today would be in his best interests.

Brother: I would like a fact-finding hearing, but my sister doesn’t.

Judge:    Why?

Brother:   There are a lot of things we haven’t addressed in this court.  My sister has shown professionalism in managing his money in the past.

Judge:   That doesn’t tell me why you need a fact-finding hearing. A fact-finding hearing would be considering the questions that are unresolved at present about how this Deputy has managed his finances in the past.

Brother:   That’s what I want.

Sister: It’s not what we want. It would take too long – it could take years. I don’t think we need one.

Judge:   Mrs X? [P’s mum]

Mother:   (inaudible – as is the interpreter)

Judge:    I’m not sure I can explain to you more than I’ve done already what a fact-finding hearing is.  If you don’t want to express a view, that’s fine. But if you do, now is your opportunity to tell me.

Mother:     [speaks to interpreter]

Interpreter:     She is asking me for my opinion, which I’m not allowed to do.

Judge:             So you don’t have an opinion at the moment?

Mother:          Of course I have an opinion.

Judge:             Well what is it?

Mother:          Yes.

Judge:             You’d like a fact-finding hearing?

[Mother doesn’t answer. Brother and sister are talking to each other in their native language.  Sister says to judge: “She doesn’t understand”.]

Judge:              I can either finish the proceedings today – in which case I will hear from you about who should be the Deputy and make a decision, OR put it off, for what is likely to be a long period of time, for a lengthier hearing to examine what exactly was done in the past with the Deputyship by Ms H, which will involve a longer hearing and more cost.  Then I’ll make some findings about the facts about how the Deputy has acted, or not acted, and why.  And after that, we’ll have to look at the question of who should be the Deputy.  And if you want to have a fact-finding hearing, you’ll have to explain to me why it’s necessary, proportionate, and in P’s best interests for that to happen.  So what would you like to say to me about that?

Mother:          After all the trouble the Deputy has given me, I don’t want the same person.  P is distressed by the Deputy.

Judge:             This isn’t addressing the question I asked you.  I’m going to make it very simple. Do you want me to decide today or another day?

Mother:          I want it to finish today.

Judge:              So it’s only you, [Brother], who wants a fact-find, and you’re not pressing very hard.

Brother:          No – no, I retract what I said.

Judge:             Okay.  There’s an obvious dispute about how the Deputy has acted and why, but there is no doubt that there have been disagreements over the last few years – and I don’t consider that it’s necessary to make findings of fact as to the exact reasons for those difficulties. […] So I am now going to hear briefly from each of you about who you think should be the Deputy going forward, and why.  The three options are: Ms H remains; P’s sister be appointed in her stead; or an alternative professional deputy from the panel is appointed instead of either of those two.  (Addressing P). When I have heard from all the parties, P, I will give you an opportunity to tell me what you want.

Who should be Deputy?

The judge asked each of the parties in turn who they thought should be Deputy. 

Ms H (current Deputy)

Ms H reiterated the view she’d expressed in her Position Statement that “[P] is trying to remove me as Deputy as neither he nor his family fully understand the role and obligations of the Deputy. It appears that [P] expects any requests to be agreed, without providing the information required for me to fulfil my role of Deputy. […]. I feel that [P] needs to learn to work with his Deputy and that continually changing Deputy would not be in his best interests.”.  She said she would be “happy to remain as panel Deputy” but that in the event the judge decided she should not do so, then “I don’t think there’s a clear understanding in the family of what the Deputy does, and so I do think an alternative panel Deputy, and not a family member, would be in P’s best interests”.

P’s sister

The sister said: “I’m really involved in his life, even though I don’t live with him any more.  I’m in contact with him every day.  In the past few years that I’ve not been living with him, I’ve developed a better relationship with him and can work for him.  After my mum, I am the person who understands him the best.  I know he can get paranoid and angry, but when he comes down, he always regrets it.  It will save him money if I do it. I’m willing to do it again.  I have a background in accounting as well – I was doing it before and I gave a report to the Public Guardian every year with no complaints.”  The judge asked about the sister’s personal circumstances since she’d indicated that she was on long-term sick leave and hadn’t attended the previous hearing due to health concerns. The sister said she was on the waiting list for surgery but didn’t think it would impact on her ability to fulfil her duties as a Deputy and that she would “fulfil my job according to the requirements”.  The interaction continued:

Judge: You’ve just told me that you understand you have to follow rules and guidance.  Tell me how I can have confidence in that when you’ve failed to comply with directions from this court.

Sister:  When there is a deadline, when someone is dependent on me, I would always respect their autonomy and dignity.

Judge:  It doesn’t give me confidence that you’ll follow the rules when you don’t follow what I have told you to do in a carefully worded direction.

Sister: It was a family decision. Not just me.

Judge: It was on you as an individual, with the greatest respect.

Sister: As a Deputy it’s all on me. I’m the one responsible.

Judge: And what is your view about a panel deputy if I am not minded to appoint you?

Sister:  Ms H doesn’t know anything about his needs. He wasn’t being listened to by Ms H or her team.  He was just being ignored. She’s never met him once.

P’s brother

Brother:  Following on from my sister, in terms of how she was previously managing the Deputyship, she had more of a relationship with P. He was able to express what his needs were.  He gets very distressed at times and has outbursts but his family is able to contain that.  It’s very concerning that P doesn’t have a lot of money and I don’t understand why he has a professional deputy when my sister is willing to do it. I don’t know how much the Deputy gets, how much is taken from his money to pay her.  Yes, the court needs to know where his money is going, but he should have some elements of choice.  Back in 2022 he told the Deputy he wanted to go on holiday and because money was not released to him, we had to pay for it. As a family, we are having to support P financially as well as emotionally.  There are emails from Ms H saying she wants to meet with P, and he’s traumatised when I say, “do you want to speak to the Deputy”.  I don’t know how to resolve this, mentally or emotionally. He has a learning disability – you can’t expect him to communicate by emails. He needs to be able to build up a relationship. My sister is willing to do this for free and he hasn’t got a lot of money, and it’s not in his best interests to have a professional deputy

There followed a somewhat cross-purpose conversation about sourcing an external deputy, but it was clear that the brother had nobody else to nominate for the post today.

Mother

P has been in distress for so many years. I do not want it continued.  I do not want the current Deputy to continue.  I’m P’s mum, and what I saw so far, my heart isn’t accepting it.  I want the Deputyship to come back to my family.  I want my daughter to be doing it as she was previously and for it to remain as it was before.

Protected party

P:  After my mum, my sister and I are very close. I want my sister to be my Deputy.  I’ve been begging money off my sister and my brother. I need all my money to return back to me, and I don’t want Ms H as my Deputy.  Since my money was taken over-  We went on holiday to Egypt last year and my brother paid for it.  We did ask Ms H for money, but she refused to give it to us.

Judge: I hear that it’s important to have your sister as Deputy because you’re close to her. Alright, thank you.

Having heard everyone’s views, the judge called a short adjournment.  She said she was very conscious that the hearing had overrun (it was by now 1.40pm) and that it had gone over the lunch hour.  She wanted to review what she had heard from everyone before making a decision, and suggested returning at 2.30pm.  There was a problem with the interpreter (he was only paid until 1.15pm) so the break was attenuated to 15 minutes, with the intention of being finished by 2.30pm (although it actually took until 2.42pm).

Judgment

The judge referred early in her judgment to the decision in Kambli v The Public Guardian [2021] EWCOP 53  – which I heard and wrote down as Camberley v the PG, and couldn’t find at the time, but have subsequently located: locating case law mentioned in court (when it’s not written down in position statements) is always challenging.

The Kambli case, I discovered, is often cited as an authority for the position that “when a deputyship encounters difficulties, the response of the Court should not be to change the appointment as default response. Changing deputy inevitably incurs costs which could otherwise be avoided and risks being perceived as ‘rewarding’ negative behaviour, which in turn undermines the prospects of future stability. Rather the Court should probe the actual circumstances, with a view to salvaging working relationships if possible” (§39, Kambli). 

In Kambli, salvaging working relationships turned out not to be possible.  The case was heard by Senior Judge Hilder.  Mr Kambli, the Deputy, was finding it impossible to work with P and his family – saying that there had been an irretrievable breakdown in the relationship between his firm and P’s family.  He said that P’s father in particular was “rude, obstructive and undermines my authority as Deputy” and was “intent on breaking down any relationship he has with a Deputy by ‘Deputy shopping’ until he finds a Deputy that will accede to his demands“.  The judge decided to appoint some distant relatives proposed by P’s father in place of Mr Kambli, subject to heavy restrictions and supervision, in the hope of breaking the cycle of P being repeatedly subject to the cost of new deputies being brought in.

In this case, DJ Clarke cited Kambli to remind herself that changing a Deputy is not a default option. It has financial implications for P and may also have “wider repercussions”, e.g., she said it “can be perceived as rewarding a lack of engagement or poor behaviour”.  But in the end, she came to the conclusion that “the current arrangements are not working. Despite Ms H’s laudable willingness to try to make this Deputyship work, I have concluded it has reached the end of the road”.

DJ Clarke then considered the only two alternative possibilities for the Deputyship before her that day: P’s sister, and a new panel deputy.

Concerning the sister, the judge said: “There are several reasons why this might be considered to be in P’s best interests. His estate, though not minimal, is not extremely substantial, and it is widely accepted that the costs to an individual’s estate of a family member being appointed over those that would be incurred by a professional Deputy would favour the appointment of the family member, if all else was equal.  There are other reasons why family members are often considered preferable.  Those include: the relationship between the family member and the person who requires a Deputy and the fact that family members are often already familiar with the protected person’s affairs and have personal knowledge of them, and perhaps have a better and more in-depth understanding of their wishes and feelings, and also of how to make the relationship work, and how best to communicate with that individual.  There are also difficulties with appointing family members, who may find it hard to make decisions in the person’s best interests if that conflicts with the protected person’s wishes and feelings.  In this particular case, [Sister] has previously acted as P’s Deputy for a period for a period of some five and a half years, and to the best of my knowledge there were no concerns raised about her management of his finances during that period.  She did not continue after March 2015, citing personal circumstances, and I have only the very briefest understanding of what those circumstances are.  She has shown a reluctance, which is understandable, to disclose the private details of her life, but she has indicated that she has an underlying but treatable health condition, that she expects to undergo surgery for that, perhaps next year, and she is currently on long-term sickness absence from work. I have some concerns which – despite my giving her the opportunity to address – I don’t feel have been fully allayed, as to whether her health would impact on her ability to manage the Deputyship, at least until she has recovered from her future surgery. I also have concerns as to whether she fully understands the role of a Deputy and what is required of her.  These concerns are particularly pressing in view of the fact that this is not someone who has never acted as a Deputy but acted previously for five and a half years, and should therefore be very clear about the Deputy’s role.  I raised with her my concern about some of the comments she made in her Witness Statement [I haven’t seen this] and both those comments and her response to them did not allay my concerns, or persuade me that she understands the role, or is capable of making decisions in P’s best interests, having regard to whether or not he has capacity to make certain decisions himself, and keep a regular and appropriate oversight of his affairs. I note from her correspondence with the Deputy that she was either unwilling or unable to provide the Deputy with details necessary for any Deputy to undertake the role, by giving an understanding of what obligations P has. I have little confidence that she will undertake a rigorous examination of any of those matters if appointed as Deputy today.  That is underlined by the fact that she has on several occasions failed to comply with directions of this court.  She explained she believed they were family decisions – whereas she was clearly directed as an applicant in her own right, and should have complied with them as she was clearly directed to do.  In light of those factors, and other concerns that I have, I am not satisfied that she is a suitable person to be appointed to act as P’s Deputy.”

The judge addressed the sister directly: “As I have little confidence that you will prioritise the obligations of a Deputy over your own, P’s, or other family members’ wishes and feelings, I don’t consider it to be in P’s best interests to appoint you as a Deputy going forward.  And I have reached the conclusion that the best solution is to appoint an alternative panel deputy who will be sourced by the court following this hearing”.

A fresh start?

The judge hoped (somewhat optimistically in my view) that the new Deputy would signal a “fresh start” for the family going forward.

“I want to say a few words to the family in particular in relation to this course of action. I understand there have been problems, and I would ask you all to keep an open mind about any new professional Deputy, and to engage with and work with them to promote P’s best interests, because what is clearly NOT in his BI is for there to be further dispute and further costs incurred in having repeatedly to consider the question of whether there should be a different Deputy. In light of history of this matter, is seems to me it would be helpful to ensure there is a structured relationships between P and the family and the future Deputy, so what I propose to do is to include, in an order, a requirement that the new Deputy produce a “Working Together” agreement, which clearly sets out the expectations on both sides – from the Deputy what can be expected by P and the family, and also what the Deputy can expect from the family and P. And that agreement should cover the means of communication and the frequency, timeframes for responses to correspondence, on both sides, who will manage what finances, the points of contact between the family, P and the Deputy, how decisions will be made, and how any disputes between P and the Deputy –  or between the family and the Deputy  – will be resolved.  It will take some time for the Deputy to be able to put that document together. The final document should be lodged with both the court and the Public Guardian. I hope this will assist everyone to understand the role of the Deputy and to manage expectations in a way that gives the new relationship a better prospect of working than the existing one. I urge you all to consider this a fresh start.”

The judge also addressed P directly:

“I understand, P, that this is not what you wanted – that you would have preferred your sister to be your Deputy. Sometimes I have to make very difficult decisions. I’ve taken into account what you want – but for reasons I’ve explained,  I don’t think your sister acting a Deputy is in your best interests.   I’ve taken into account that your family is very important to you.  But the person managing your money in your best interests may not always make the decisions you would like them to make. That money may sound like a substantial amount but it has to last you for the rest of your life. Your needs may be greater in future.  Your money has to be carefully managed so that you have what you need and what it’s in your best interests to have.  The Deputy I appoint will be greatly assisted in making decisions that are in your best interests  if you communicate with that Deputy and provide them with information they request. And while I understand it’s onerous, the Deputy has duties to the Public Guardian who has oversight of  their activities, and that means they have to account for every penny of your money. They will need invoices, accounts, receipts, so I would be grateful if your family will support you to provide them with information they need so they can do their job properly. I appreciate it’s intrusive but I’m afraid it’s necessary.”

P replied: “I’m very disappointed.  I wanted my sister. For the last 12, 15 years we’ve been so close”.  “I understand that,” said the judge. “But I’m not going to appoint your sister. I’m going to appoint a professional”.

And with that the hearing ended.

Reflections

I’ve now observed eight hearings before DJ Lisa Clarke – some on line, some in person – and in every one of them I’ve found her to be conscientious, thorough, and personable. 

She’s alert to the challenges of open justice: she’s been helpful in making sure that I have the relevant background information, providing me with summaries and ensuring I have Position Statements where possible. She’s made explicit to counsel when it’s been necessary (which, unfortunately, it has) that she has no editorial control over my reporting. She’s treated everyone in court (lawyers, interpreters, family members and P) with respect and consideration.

I am always uncomfortably aware that transparency can be a time-consuming matter for the courts.  Judges routinely check that I have the Transparency Order and ensure that I’m provided with an opening summary, and I always ask for position statements. (And sometimes we have concerns with the Transparency Orders and ask for variations – including once, laying arguments for transparency out in a Position Statement in a case before DJ Clarke observed by Daniel Clark.). None of this is cost-free for the court. Position statements can be a time-consuming matter since lately the Official Solicitor has taken the blanket position that they will not disclose position statements unless ordered to do so by a judge – so there is a ritual performance of my request, followed by their refusal, followed by a judicial order which (depending on the actors) can take anything up to 20 minutes of court time.  This has played itself out in a couple of the recent hearings before DJ Clarke – with the added complication that (contrary to the guidance in Re AB (Disclosure of position statements), parties had not prepared anonymised versions (she described that as “disappointing” in COP 14226400) and/or were unable to detach position statements from the court bundle.  The judge has sometimes anticipated problems with provision of position statements: on one occasion, after the ritual interaction with the Official Solicitor, she produced a copy she’d personally asked staff to prepare earlier for me.

I’ve never seen her show signs of impatience or take short-cuts. Hearings I’ve observed have often run over their allotted time slot (frequently through the lunch break)  but she never seems to be trying to hurry people or to make rushed decisions.  “You must be very hungry by now!”, said one finance professional as we trailed into the courtroom at 1.15pm (for a case listed to be heard at noon), moments after the participants from an earlier hearing had left: “that need not concern the court” the judge said – nicely, with a small laugh ((COP 1307949T).  This is a judge who does work extremely hard – I’ve not seen her concentration or ability to function impaired by her dedication or lack of breaks, but I do worry for her well-being.  She’s clearly concerned for the well-being of others: she closed another hearing by saying  “Apologies that I’ve eaten into your lunch hour as well as mine. Thank you all for continuing to work together”; and she remembered that in the course of a discussion about dates and deadlines, one the lawyers had said he’d be on holiday, adding “I trust you’ll have a lovely break!” (COP 20006344).

In my experience, DJ Clarke is always well-prepared.  At every hearing I’ve seen, it’s obvious she’s read the bundle and is on top of the paperwork (she sometimes delays the start of hearings to read Position Statements that are submitted late, e.g. COP 20006344).  I’ve been impressed by her grasp of details and by her ability to ask pertinent questions that cut through some of the morass of information to issues at the heart of the case. 

Whenever I’ve seen her, DJ Clarke has been calm and focussed in her manner. She is courteous but firm with everyone. She drew attention at the end of one hearing to the fact that counsel had submitted their position statement very late “which is in part why we are still in court half an hour after this hearing is supposed to have ended”. She responded to counsel’s apology by saying: “I’m grateful for the apology but I’m more concerned to make sure position statements are filed in a timely manner in future” (said very nicely with a smile) – so that I heard her not as “complaining” about counsel’s past actions (which is how counsel had treated it, by apologising) but rather as trying to ensure an effective hearing at the listed time on the next occasion the case was before her, i.e. a positive and future-focussed approach.

I’ve also heard this judge be firm and clear with family members, but never in a way I heard as inappropriate or unfair.   In a case heard in the morning before the Deputy case in the afternoon, P’s daughter told the judge that other family members have stolen money from her: the judge replied, “I’m very sorry that’s something you’re experiencing, but it’s not something I can do anything about”.  The daughter also said she’s being evicted and will “probably be homeless” by the date the judge suggests for the next hearing: the judge responded, “While I have every sympathy with that in relation to you, your homelessness doesn’t necessarily mean this court should adjourn” (COP 14226400). 

The care DJ Clarke takes with her cases, and her commitment to making life better for the protected party, is apparent across reports of her hearings from other observers  (“Navigating engagement in capacity assessment”; “DJ Clarke calls time on public body delay”;  “A young man failed by NHS South West London ICB and the London Borough of Wandsworth”).  What’s also clear from these earlier blog posts is that DJ Clarke can also be very sharp with public bodies who seem not to be acting in P’s best interests – and in one disturbing report, also with family members (“Perhaps the most contentious matter is the question of his social media and internet access.”  But who is the decision-maker?). Observers in this last case said they were shocked by the way DJ Clarke behaved towards the family – both through their counsel and to P’s mother in person. For Daniel Clark, one of the observers, DJ Clarke is “an impressive judge who was clearly frustrated with the lack of progress” in this case – but her behaviour typified a display of “asymmetric power dynamics”, quite unlike what he’d seen in two previous hearings of the same case.  Nothing remotely similar occurred in any of the hearings I’ve watched. 

I’ve observed a lot of different judges in a lot of different hearings.  If I were P, or a member of P’s family, DJ Clarke is a judge I’d be very happy to have hearing my case.

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)

Safeguarding Mum: The “vile” judgment and the daughter’s story

By Celia Kitzinger and Claire Martin, 5th September 2025

At a fact-finding hearing at the end of last year, Mrs Justice Arbuthnot found Caroline Grady[1], anonymised in the judgment (Norfolk County Council v CA & Ors [2024] EWCOP 64 (T3)) as “DA”, had acted abusively towards her mother.

 The judge said: “There is no doubt in my mind that mother and daughter love each other deeply and DA has certainly cared for her mother as much as she is able to” (§63) – but, she said, Caroline has “personality issues” (§66) – including lack of self-control (§66) – which have led her to bully her mother. “It is a dysfunctional, volatile relationship with a mother and daughter who are enmeshed and depend on each other emotionally” (§66).

Although Caroline’s mother (we’re referring to her as “Mrs P” since the judge changed the initials she used for people across judgments) was found to have capacity to make her own decisions about contact, the judge found her to be a “vulnerable adult” in need of protection from the “undue influence” exercised over her by her daughter.  This means that contact between mother and daughter can be regulated and supervised under the inherent jurisdiction (see §128-§151 of the judgment, for anyone unclear about how the inherent jurisdiction works).  Supervised contact arrangements were initially given by way of an “undertaking”, and later imposed by the court via an order with a penal notice. Caroline breached both the undertaking and the court order concerning contact with her mother. 

In February 2025, there was a committal hearing for contempt of court (Norfolk County Council v Caroline Grady [2025] EWCOP 15 (T3)). We’d blogged previous hearings in this case several times before[2], but we weren’t able to report properly on the committal due to reporting restrictions – and the judge said that she did not intend to publish a committal judgment.  We wrote about the committal hearing in the only way we could, while complying with reporting restrictions. It was pretty opaque, as you can see here: “Draconian reporting restrictions in a contempt of court case: Severing continuity between judgments”. 

We subsequently made a successful application to the court for the reporting restrictions to be varied and for the committal judgment to be published – and there’s a published judgment about the transparency application too (Norfolk County Council v CA & Ors [2025] EWCOP 16 (T3) in April 2025).  We plan to publish a separate blog post about the transparency issues relating to the committal proceedings.

So effectively, the situation now is that certain “facts” are on public record about Caroline’s behaviour towards her mother – some of which were breaches of undertakings and orders resulting in fines against her – and the court is now trying to find a way forward to support contact between mother and daughter in ways that don’t expose the mother to further “abuse”. 

Caroline does not accept that the findings of the court are all actually “facts”  – and in truth the “balance of probabilities” test used in this civil court means up to a 49% chance that these “facts” never happened.  Even when Caroline agrees that the thing the judge says happened did in fact happen, there is a world of difference between how Caroline and the judge understand and interpret it. 

Despite the proven “facts”, some unsupervised contact (initially 15 minutes in person) was introduced in Spring 2025 and the intention of the court is that this should be gradually increased (if things go well).  Caroline is concerned that the increase in unsupervised contact will leave her vulnerable to accusations of further “abuse” and will also mean reductions in her mother’s care provision.  This is likely to be a matter before the court at a hearing in October 2025.

In this blog post, we report on the case by connecting the fact-finding hearing and the committal (which we were previously prohibited from doing) and expressing some opinions about the fact-finding hearing.  We have delayed this blog post a few months because Caroline Grady had opposed Celia Kitzinger’s application to vary the transparency order (variation was essential for publication) and was opposed to publicity about the fact finding and committal. She described it as being “publicly disgraced” and worried about its implications for her job.  Caroline’s father also opposed the application, He said in court: “It’s a private affair. It shouldn’t be mentioned in public.  The whole thing has been a big misunderstanding …. We’ve been dragged through the courts for a year and a half – we don’t want our names published”. 

At that same transparency hearing (on 11th April 2025), Caroline Grady raised her “right to reply” and to “defend herself” against the “vile judgment” that would now be published.  The judge (wisely I think) pointed out that “sometimes it’s better to step back and things go away more quickly” – in effect, suggesting that by contributing her own version of events, Caroline might simply add more fuel to the fire of publicity. But I was asked by the court to address Caroline’s “right to reply” and  I said that “I take the point that this might fuel publicity and you need to think carefully about whether you want to do that or not, and discuss it with your family” – but I also said that if my application (which she opposed) was successful, then yes, she would be able to write a response and give her account of her experience in the Court of Protection, as had other litigants in person before her, including Amanda Hill who was in court observing that day.

We left it with Caroline and after some e-mail exchanges and a first video-chat (and my reminder of the judge’s suggestion that it might be better not to add to the publicity by contributing her voice), Caroline expressed the strong view that she did want to contribute to the blog post from her own perspective.

So, there are three sections here. 

First some more detail about the background and history of the case – the contact restrictions and the committal (by Celia Kitzinger). 

Second, reflections from an observer who watched three of the court hearings, including the committal (by Claire Martin).

Third, a conversation between Caroline Grady and Celia Kitzinger, which was sent to Caroline for checking and which she has given us permission to publish. 

1. Background – Celia Kitzinger

I’ll address first the contact restrictions as they were applied under the inherent jurisdiction, and then summarise the issues at the contempt of court hearing.

1.1 Contact restrictions and the inherent jurisdiction

In Spring 2023, Mrs P, in her late 70s, was in hospital with a chest infection.  While she was there, hospital staff and a hospital social worker became concerned about the mother/daughter relationship. It’s since been described in judgments as “volatile”, “fiery”, “tempestuous”, “tumultuous”, with “loud arguments” between the two of them. 

According to the hospital, Mrs P’s daughter, Caroline Grady, had made her mother walk around the ward when she was reluctant to, told her she was not drinking enough, was verbally aggressive, and called her “a senile old woman”. Caroline later accepted that she’d behaved in this way, explaining that she was trying to keep her mother alive. What the hospital saw as abuse was (she said) typical banter between mother and daughter that had been part of their relationship for decades. The hospital made a safeguarding referral to the local authority, Norfolk County Council. 

On 18th December 2023, Norfolk County Council made an application to the Court of Protection after an alleged “lasagne-throwing” incident  – which had seen the daughter arrested and released on bail on condition that she had no contact with her mother for the next three months. And that was the beginning of a long and painful saga in the Court of Protection that we’ve been following for some time.

The first hearing of this case (COP 14187074) was before HHJ Beckley on 17th January 2024 (and we blogged about it here: “When two legal teams turn up in court to represent P”).  By the time of that first court hearing, the bail conditions had expired, but the judge (HHJ Beckley) asked Caroline and two male family members, to give a formal undertaking that they would only have contact with Caroline’s mother (who lived in her own home not far from her daughter) with a carer present. They made the undertaking with reluctance and some indignation.

There was disagreement in court about whether the next stage should be a “fact finding” hearing (i.e. to determine whether or not Caroline and the two male family members coercively controlled and abused Mrs P), or whether it should focus on “capacity determination” (does Mrs P have capacity to choose for herself where she lives and receives care, who she has contact with – and indeed to litigate this case through her own legal team rather than having the Official Solicitor act on her behalf, as she claimed at the first hearing).  The judge decided that capacity determination should take priority. 

There was contradictory evidence about Mrs P’s capacity before the court at this point, and resolving it was important, because if Mrs P had capacity to decide for herself whether or not to have contact with her daughter, then the Court of Protection had no right to make those decisions on Mrs P’s behalf.

In the meantime, the local authority made clear that even if Mrs P were to be found to have capacity to decide for herself about contact with her family, they would continue to try to protect her from her family members. On 25th April 2024 they made a parallel application under the inherent jurisdiction[3] instead of under the Mental Capacity Act 2005.  That requires a High Court judge (more senior to HHJ Beckley).  The case was therefore transferred from HHJ Beckley (who would not be able to impose contact restrictions on a capacitous Mrs P) to Mrs Justice Arbuthnot (who would be able to impose contact restrictions under the inherent jurisdiction).

As it turned out, Mrs Justice Arbuthnot found that Mrs P does have mental capacity to make her own decision on contact with her family members.  After careful consideration of competing (and in the case of the expert witness, revised) assessments of Mrs P’s capacity across different areas, the judge found that Mrs P lacks capacity to conduct the court proceedings, to make decisions about her care and to manage her property and affairs – but that she has capacity to make decisions about contact with her daughter, and also has capacity to enter into or revoke an LPA. 

In relation to mother/daughter contact, the judge said: “[Mrs P] was making unwise but capacitous decisions about contact with [her daughter]. It is a relationship that is of great importance emotionally to [Mrs P] and although [her daughter] is as [Mrs P] says ‘brutish’ and ‘bullish’ she is doing her best to keep her mother alive and as healthy as she can persuade her to be. [Mrs P] recognised the relationship had negatives but considered the positives outweighed these. I found in this finely balanced case that she had capacity to decide on unsupervised contact.” (§124 Norfolk County Council v CA & Ors  [2024] EWCOP 64 (T3)).

Over the course of the same multi-day hearing (between 2nd and 7th October 2024), the judge also made some fact-finding decisions (and she made them first[4]).  She found that allegations against Caroline (plus two against Mrs P’s ex-husband) were proved on the balance of probabilities: they included Caroline shouting at her mother, calling her a drug addict, force-feeding her pizza, forcing her to exercise and walk around when she was in pain, threatening that she’ll be moved to a care home, making references to Dignitas (the Swiss assisted dying clinic) – and pouring lasagne over the mother’s head and then smearing it into her face and hair.  Caroline partially accepts some of these allegations (though her view of them is very different – she’s trying to keep her mother up, moving around, and alive). She totally rejects other allegations, including both the pizza and the lasagne incidents as being entirely untrue – “set up” by the carers as part of a “vendetta” against her.

Here’s how the judge summarised her view of the situation [DA is Caroline Grady, CA is Caroline’s mother]:

§63 Overall as I look at the evidence as a whole, I find that DA fails to make any allowances for her mother’s age and frailty. She is hoping that by force of her personality she can keep her mother healthy and able to look after herself. There is no doubt in my mind that mother and daughter love each other deeply and DA has certainly cared for her mother as much as she is able to. 

§64 I am concerned too that DA has persuaded her mother that she is lazy and stubborn and that her failure to look after herself better is her own fault. I consider that that view has arisen from what CA has been told repeatedly by DA in the same way that CA’s fear that she will be moved into a care home comes from her daughter and indeed EA on 20th November 2023, when the court and the local authority have been at pains to make it clear that that was not – and is not – the intention.

§65 To that end, DA bullies and forces her mother to do the things that she believes will keep her alive for longer. When she force-feeds her it is because her mother is not eating enough and she has had anorexia. Their relationship of verbal abuse is mutual, but CA is ageing and getting increasingly frail and deserves a different approach from an adult daughter. 

§66 I am no expert, but after seeing DA in court in the four-day hearing and on other occasions before this, it is the daughter’s personality issues that lead her to treat her mother in the way she does. She lacks self-control and in particular she is unable to control her anger at times. CA describes her daughter as bullish and brutish, and I agree with that description. It is a dysfunctional, volatile relationship with a mother and daughter who are enmeshed and depend on each other emotionally. 

§67 I have carefully considered DA’s argument that the local authority are “out to get her” (my words, not hers). This is simply not the case. The safeguarding concerns originated from the hospital where any number of different staff reported DA’s concerning behaviour towards her mother. These complaints then continued via the care agency. The social work team have primarily gathered the information together to get a picture of the relationship and the way this elderly lady is treated by her daughter. Norfolk County Council v CA & Ors [2024] EWCOP 64 (T3)  10th October 2024

The judge used the inherent jurisdiction ‘to impose a supervised framework around contact’ (§142, (Norfolk County Council v CA & Ors [2024] EWCOP 64 (T3))). This meant that all contact between Mrs P, her daughter, and her ex-husband would be supervised by one of the (live-in) carers. The judge was fortified in this decision because a graph, presented by Mrs P’s social workers, showed a decline in the number of “incidents” since the daughter had made undertakings about contact.

Contact restrictions and the intrusion into family privacy caused by the court order that a carer must always be present have clearly been painful to Caroline, especially at Christmas.  We blogged about her application for 12 hours of unsupervised time on Christmas Day 2024 here: “Let us be alone as a family again”: An application for unsupervised contact at Christmas”  There are still contact restrictions in place but the plan is to increase the amount of unsupervised face-to-face contact in the run up to the October 2025 hearing from 15 minutes a day to 30 minutes and then to an hour (assuming that there are no problems), plus a plan for ceasing supervision of phone calls too.  At the last hearing, however, Caroline Grady indicated that she had some concerns about this, fearing further accusations against her.

There’s also an injunction hanging over Caroline Grady.  The judge allowed the LPA for health and welfare to remain in force, but circumscribed the attorney’s powers by way of an injunction under the Mental Capacity Act 2005 (as Mrs P lacks capacity to decide on her care). These injunctions state that Caroline:

  1. … shall not install any camera, listening equipment or loudspeaker in [Mrs P’s]’s property, whether live-feed only, or live-feed plus recording.

b. … not tell or suggest to [Mrs P’s]  carers how to meet [Mrs P’s] care needs, or purport to hire or dismiss carers

c. … shall not lie to, threaten, harass or intimidate [Mrs P]

d. …  shall not force [Mrs P] to exercise. 

e. ..  shall not force-feed [Mrs P]

f. …  shall not mention or threaten to send [Mrs P] to a care home, or to Switzerland. 

g. … shall not deny [Mrs P] access to healthcare assessments or interventions. 

h. … shall not take steps to prevent [Mrs P] from being administered prescribed medication. 

i. … shall not seek to discharge [Mrs P] from hospital against medical advice. 

j. … shall not take steps to prevent social services and other social care, or healthcare practitioners from visiting or speaking with [Mrs P] alone. 

k. … shall not take steps to move [Mrs P] to another place of residence.

1.2 Contempt of court, a committal hearing and a fine

At an earlier hearing in July 2024, another issue had arisen.  The local authority claimed that Caroline (and her father, Mrs P’s ex-husband) had breached the undertakings they had made to HHJ Beckley at the beginning of the year (we blogged about that here: Complex issues for the court and plans for an ‘omnibus’ capacity hearing). The undertakings they were alleged to have breached included contact restrictions (they had been with Mrs P without a carer to supervise them) and also they had mentioned the possibility of Mrs P being moved to a care home.  The judge was emphatic that: “NOBODY must mention care homes to her. […] it’s not on the table, it’s not proposed, this lady wants to stay at home. It is NOT to be talked about”. The court proposed a hearing in January 2025 to consider (as the published judgment states) “an application for committal for contempt for alleged breaches of undertakings given to the Court…”.

Amanda Hill and Claire Martin attended the committal hearing in person.  They wanted to blog about it, but were effectively prevented from doing so, in any meaningful way, due to draconian reporting restrictions imposed by Mrs Justice Arbuthnot.  The judge created a new transparency order that effectively banned reporting on the substantive content of the committal proceedings including, in particular, reporting on the proceedings in any way that connected the committal with the previously published fact-finding judgment, and with blog posts and other published legal commentary about the case. They wrote about the problem here: “Draconian reporting restrictions (now lifted) in a contempt of court case: Severing continuity between judgments”. Pretty much all the observers were able to say about the substantive content of the hearing was this: “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”.  At that stage, there was no published judgment and no intention to publish one.

Celia Kitzinger subsequently made an application to the court to vary the transparency order from the committal hearing and for the judgment to be published.  This was successful: the committal judgment is published, naming Caroline Grady (Norfolk County Council v Caroline Grady [2025] EWCOP 15 (T3)) and there is also a published judgment concerning Celia’s application (Norfolk County Council v CA & Ors  [2025] EWCOP 16 (T3)), which might be useful to other people making applications to the court to ensure that committal proceedings are properly transparenct.

According to the committal judgment, Caroline Grady had made an undertaking that she agreed to her contact with her mother being supervised until further order and that she would not use insulting or threatening words or behaviour, or say or do anything that would cause her mother upset or distress, or which may undermine the care provided to her.  However, she’d breached these orders by questioning her mother about a proposed hospital visit (causing her mother to become angry) and on a different occasion she’d distressed her mother by saying “your bloody dementia has prevented you from remembering everything we have talked about in the last months, it’s a bloody waste of my time”; another time she told her mother she’d be going into a care home.

The committal judgment also reports that Caroline had breached an injunction forbidding her from telling lies to her mother, and that she “shall not mention or threaten to send [her mother] to a care home or to Switzerland”.  The judge found that on 13th November 2024, contrary to those two terms of the injunction order made, the defendant lied to her mother when she said that the local authority might take her to a care home, and in saying this she knew of course that she was saying something that would be upsetting to CA.

The sentence was a fine of £500. It’s the first time any of us has seen a fine as a penalty for contempt in the Court of Protection.

2. Reflections from an Observer – Claire Martin

I have observed three hearings in this case: on 6th June and 2nd-3rd October 2024 (remotely) and then the committal hearing on the 28th January 2025 (in person). I will reflect here on two aspects of the case which have caused me some disquiet: first, how the mother-daughter relationship in this case has been framed in court (and more generally, how relationships are policed by the state); and second, how allegations become ‘facts’ (on the balance of probability) in the Court of Protection, and the implications of that for family members.

2. 1  Relationships

Relationships, by their very nature, are not one-sided. The judge in this case (in the fact-finding judgment at §65) recognised that in this mother/daughter interaction “[t]heir relationship of verbal abuse is mutual…” and continued “… but CA is ageing and getting increasingly frail and deserves a different approach from an adult daughter” (CA in the judgment is Mrs P, the mother at the centre of this case). 

How much should the fact that one person in a relationship is getting older and frailer mean that the other person should (or could) change their lifelong patterns of relating within that relationship? And if the ‘verbal abuse is mutual’, how much responsibility can be handed to one person in that relationship? In this case it seems that Mrs P does not in fact have dementia (at least, nobody seems to be insisting on that as a correct diagnosis since the psychiatrist witness questioned it in his evidence to court), and, although she is frail physically, and has some cognitive deficits, this does not necessarily mean that her ways of relating to others will change – often quite the opposite. I am a psychologist working in older people’s mental health. I have witnessed, over the years, many frail, older people being forthright, provocative and what might be described as ‘verbally abusive’ within their close relationships. (Imperfect) patterns of relating are very persistent across the lifespan – especially if people don’t necessarily see any need to change them.

Caroline’s own account of the mother-daughter relationship, reported earlier by Celia, is that ‘[w]hat the hospital saw as abuse was (she said) typical banter between mother and daughter that had been part of their relationship for decades’. Caroline, in one of the hearings I observed, told the court that her mother tells her ‘to go and play in the road’ and other such injunctions, when they are arguing. This is the way, she says, they interact, and always have done.

It’s very hard to really know what the reality of people’s relationships is. Viewing ‘incidents’ in an additive way from a particular lens of what one might think of as ‘normal’ or acceptable behaviour could, arguably, end up painting a very different picture to that of the reality of people’s messy relationships. In this case, it must be remembered that Caroline is now being allowed increasingly longer periods of unsupervised contact with her mother. It seems then that the court does not see her as an ongoing risk to her mother’s wellbeing.

How much can we as a society expect the state to police our relationships? In Mrs Justice Arbuthnot’s judgment she said:

§17 The undertakings given by the defendant were that she agreed first to her contact with [her mother] to be supervised until further order and second that she would not use insulting or threating words or behaviour, or say or do anything that would cause [Mrs P] upset or distress, or which may undermine the care provided to [Mrs P] until further order. The undertakings were renewed on 24th April 2024.”

Whilst we might know that saying or doing a specific thing has the potential to cause someone distress, whether or not they in fact are distressed by our words or actions is not within our control. We can also say or do the same thing on different occasions, yet it might lead to a different emotional reaction due to the other person’s state of mind on those two occasions. Furthermore, sometimes we all, at times, want and need to say things to each other that we know might be upsetting to hear. Sustaining a relationship where one person is bound by the court not to ‘say or do ANYTHING’ (my capitals) that would cause distress to the other, is, I would argue, impossible. I am not sure how anyone could ever comply with it, even if they tried.

The committal judgment goes on to state:

§45 The features in this case which aggravate the penalty are the following:

In saying what she had to DB the defendant had caused harm to her by upsetting her. The undertakings and injunction were put in place to prevent the defendant saying or doing things which would upset DB.”

It seems unrealistic to me, and unfair, to require an undertaking that someone does not ‘upset’ another person. Surely court injunctions should clearly stipulate what a person’s actions must or must not be? This undertaking relies on a crystal ball in relation to person B’s response, not person A’s behaviour. When does safeguarding a vulnerable person tip into unreasonably and unrealistically policing other people’s (always ‘imperfect’, sometimes volatile, sometimes ‘enmeshed’) relationships?

2.2  Judicial construction of “fact”: The lasagne incident

It was alleged by social services that on 21st September 2023, Caroline threw lasagne over her mother’s head in a fit of anger. 

An important part of the context is that Caroline’s mother had recently been in hospital. Caroline says, and the judge accepts, that the daughter played a significant role in keeping her mother alive during her hospital admission. Caroline says that she tries to motivate and encourage her mother, in ways that she always has done, to keep active and eat to enable her to be as healthy as possible. It’s some of these efforts to influence her mother’s behaviour (to keep her alive) that are seen as abusive and controlling by the court.

I have been curious about the lasagne incident – now found by Mrs Justice Arbuthnot to have happened as a “fact”. Interestingly, although she admits to other incidents reported to the court, the lasagne incident is one that Caroline Grady vociferously denies ever happened.

These are my contemporaneous notes from the fact-finding hearing that I observed (remotely) on 2nd October 2024:

Counsel for Mrs P: If your mum threw lasagne up in the air how did it end up under her chin?

Caroline: It went EVERYWHERE!

My note to self at that time says: “I find this an odd question – that could easily happen surely? How would anyone in court know what a plate of lasagne tipped over someone’s head looks like, as opposed to a plate of lasagne flipped upwards that lands on the head?”.

Caroline’s version of the story is that it was her mum who became angry and flipped the plate upwards, and Caroline was then trying to wipe off the lasagne from her mum’s hair, face and chin.

Caroline’s submissions at the fact-finding hearing (representing herself) were as follows:

“I maintain that these incidents did not happen and I invite the court to find these incidents unproven. I categorically deny Allegation 29 that I tipped a bowl of food over my mother’s head. A bowl of lasagne. [Caroline read out the carer log about the argument and Mrs P’s refusal to go for walk]. After filling out the log, she also says ‘[my mother] plopped her food on the pouffe…’ Significantly there’s no mention of me smearing the food over mum in a rough manner. It seems to me that the [carer’s] statement was prepared for her and is not accurate. I have always maintained I did not do it and she was in the kitchen. She has always maintained that she witnessed me pouring the food over my mother. Yesterday, she admitted she was in the kitchen and did not witness this incident. I submit that this places substantial doubt on her witness evidence and that Norfolk County Council have not satisfied the burden of proof.”

The judge gave an ex tempore (oral) judgment of the alleged lasagne incident, which I typed contemporaneously: “[The] wholly contested incident – lasagne. [Caroline’s mother] closed her mouth and lasagne was spilt, when the carer came out of the kitchen she could see [Caroline] smearing food on her mother. [Caroline] said she was picking food out of her hair. [There is a] contemporaneous note but also a photo. As I said [Caroline] denied doing this, but I find the allegation all too likely. [Caroline] lost her temper and threw food at her mother. The photograph confirmed the allegation. [Judge then said that the fact the carer hadn’t SEEN it does not undermine her evidence] The distance was short [from the kitchen to the lounge] and lighting was good. This is all about a lack of control, exhibited, AGAIN, by [Caroline]. It’s a constant refrain in this case that everyone else is wrong and that [Caroline] is right. I do understand the difficulty – I would describe their relationship as enmeshed. The carer would have no reason to lie. I find all the allegations [the carer] made, proved.”  [judge’s emphasis]

So, it transpired at the fact-finding hearing on 2nd October 2024, that the carer had not actually seen the alleged incident. The judge found it “all too likely” that  Caroline did throw lasagne on her mother’s head, and she relied in part on the broad canvas of evidence before her about Caroline’s character and behaviour – Caroline’s “lack of control” and her “constant refrain that everyone else is wrong”.  Similarly, in relation to allegation 15 (about verbal abuse that Caroline describes as their usual ‘banter’) the judge’s oral judgment was “[i]n my judgment it is JUST the sort of thing that [Caroline] would do” [judge’s emphasis]. Other observers, like me, got the strong impression that the judge didn’t really like Caroline very much.

Meanwhile, according to the judge, “the carer would have no reason to lie”.  Really? That’s not my experience of the veracity or otherwise of health and care teams’ records. They’re often taken as fact, because they are written by ‘professionals’ and constitute the service user’s ‘records’ (most often unseen and unverified by the service-user themselves). They are always just one side of the story though, one person’s or team’s perspective. Anyone who has experienced a family member in a hospital or care home will likely know from personal experience how many errors (mostly inadvertent, some representing an ‘outsiders’ perspective, and some of which seem deliberate ‘cover-ups’) creep into the records.

A report by the Professional Standards Authority, called ‘Dishonest behaviour by health and care professionals’ found that: “frontline staff and professionals of varying levels of seniority reported personal experience of dishonesty in a professional context, most commonly falsifying records, false reports of conduct or patient interactions or theft and fraud”.  Some NHS staff“saw the regulators as overwhelmed by the incidence of dishonesty cases” and as ineffective and slow to respond even to serious cases (p. 18). Some health and care professionals described the dishonesty as “endemic”: they said there was a culture of covering up failures or incompetence, and that  “a lot of the time it’s just glossed over” (p.18).

This view of dishonesty in health and social care  – from professionals themselves – is a very different view from the one Mrs Justice Arbuthnot seems to hold.  She cannot conceive of reasons why any professionals would lie – as here, in the published committal  judgment which states, in relation to the veracity of a carer’s witness evidence [BB is the carer]:

§36. I accept that there was no mention of the conversation or of the defendant being in tears in the carers’ log, but having said that, I saw no reason why BB would have lied about this. She made the notes in the incident report form the following day. She had no prior knowledge of any issues that there had been with the defendant. There may have been a note that careful observations had to be made but it seemed to me she was clearly honest in her account.”

And §37 “She could have no reason to lie or make this up. Why would she?”

Of course, I have no direct knowledge of whether or not the lasagne (or other) incidents occurred as alleged by social services’ carers. I do feel somewhat uncomfortable about the judge’s suggestion that the carer would have ‘no reason to lie’. People lie for all sorts of reasons. Caroline suggests a ‘vendetta’ against her by Social Services (which is currently funding 1:1 live-in care for Mrs P). I wonder whether there might be a possibility that the carer was not lying but (given that she did not actually see the incident) could have misinterpreted what she saw as she returned from the kitchen – seeing Caroline’s mum upset and Caroline touching her head (‘smearing’ it or ‘picking’ it out?) where the lasagne was now located.

As  someone who works in the NHS, the judge’s apparent assumption that health and social care professionals would not lie, let alone have no reason to take a particular view and then look for and find evidence to support that view, leaves me feeling very uncomfortable. Systems of care can become closed shops, care teams gossip (did this carer really have ‘no prior knowledge of any issues that there had been with the defendant’? She was, at the very least, told that ‘careful observations had to be made’), service users’ and families’ reputations are often solidified and labels stick. Carers are human, and all of us can have feelings of wanting to show someone up, get them in trouble etc., if we don’t like them or they are (said to be) unkind to a vulnerable person. Agencies often have their own agendas (for example, Caroline maintains that police records show that social services were looking for evidence to remove her mother to a care home – see the interview with Celia below) and might encourage carers to specifically look out for certain types of incidents to enable those agendas. The rhetorical  ‘why would she?’ question seems naïve to me and not cognisant of how systems of care often operate.  

In her published judgment (Ms X is the carer who had been in the kitchen at the time of the incident) Mrs Justice Arbuthnot says that: “the photograph which showed a spread of lasagne above and below [Mrs P’s]’s chin confirmed Ms X’s explanation of what had occurred and not [Caroline’s]” (§51). The judge made this analysis of the photograph (as she says) ‘without being an expert’ and without expert witness evidence on food spatter analysis.

I am not an expert on food spatter either, so I decided to look up how spatter is analysed and how easy it is to make inferences from what is seen after the fact. It seems to be a complex and specialist skill to be able to interpret images of spatter. We might be most familiar with discussion of blood spatter from crime dramas, and from what I’ve read similar principles apply to analysis of food and liquid spatter. Factors of importance are: velocity of impact, angle of impact, ingredient viscosity and size, height of the fall and surface texture. Interestingly a Google search asking ‘If lasagne was tipped over your head what would the spatter look like?’ says: “Ingredient Viscosity and Size: Thicker ingredients like pasta and meat will travel further as larger, more irregular blobs and splashes, while the thinner sauce will create smaller, more distinct droplets.” Could lasagne flipped upwards ‘travel further’ and end up on top of the head and below the chin as it travels upwards?

And this search, asking about food spatter more generally, states: “Complexity of Patterns: Food spatter patterns can be more complex than blood spatter due to variations in viscosity, surface tension, and other factors.  Subjectivity: Interpreting spatter patterns requires experience and expertise, and there can be some degree of subjectivity involved in the analysis.  By carefully analyzing the spatter patterns, investigators can gain valuable insights into how food was spilled, including the direction, force, and potential source of the spill.”

I’ve reproduced below the full paragraph from the published judgment, dated 10th October 2024, referring to the incident:

§51 As I said, [Caroline] denied doing this to her mother, but I found the allegation all too likely. [Caroline’s] anger at her mother’s refusal of food got the better of her. She lost her temper and threw it at her mother. Ms X’s description was accurate. Without being an expert, it seemed to me that the photograph which showed a spread of lasagne above and below [Mrs P’s] chin confirmed Ms X’s explanation of what had occurred and not [Caroline’s].

My brief research suggests that understanding how food spatters is a complex matter. I am not sure how the judge could confidently reach the conclusion that the photograph ‘confirmed’ the carer’s (unwitnessed) explanation of what had happened. It seems more likely to me, given the absence of eyewitness or robust spatter evidence, that the finding of fact that Caroline did tip lasagne over her mother’s head is based solely on Mrs Justice Arbuthnot’s view that ‘this is just the sort of thing’ that Caroline would do.

3. Caroline Grady’s conversation with Celia Kitzinger

Caroline and I spoke for just over two hours one evening in late August 2025 about the case and her views about the court and social services, and what had happened to her family.

I thought it reflected very well on Caroline that she was willing to speak to me at all.  It was my successful application to the judge for the committal judgment to be published that put Caroline’s name in the public domain, which she most definitely did not want.  She opposed my application in court, and finds it humiliating (and potentially threatening for her career) to have a public judgment saying that she “abused” her mother. But now that her name is in the public judgment, she can see the benefits to making her version of what happened public too. Caroline was gracious about the Open Justice Court of Protection Project, saying that she supports the principle of open justice and transparency – despite the personal grief my actions have caused her in this instance.

“The principle of what you do – I think it’s great. I know I didn’t want you in court and I thought it was our private business and I didn’t know what you were doing or why, but now it’s out there anyway, this gives me a chance to tell the truth.  I’ve been named and shamed for something I haven’t done. When you read that fact-finding judgment, I sound like an evil bastard, don’t I. I sound like I really abused my mother. But at least this gives me the option to talk about the case.”

Having been publicly named by the court, Caroline is free to speak about her experience in her own name, and to tell her own story. This is important to Caroline – as it is to many people caught up in legal proceedings . Families often want to tell their stories and to expose the “injustice” they have endured. The court, she said, is “like a secret cult going around the same barristers, same solicitors, same judges, just making up the rules as they go along. Your Project is making people aware of what goes on behind closed doors”

Like most families with Court of Protection involvement, the whole experience has been a “torment” for her.  “What’s been happening is on my mind every day. There’s so much scar tissue there – it will never leave me.  I’ve lived and breathed this, day and night, writing letters, trying to find ways to help Mum, to help the family, to stop the ridicule. It’s like being in the middle of a horror film you can’t get out of.”

In particular, Caroline is adamant that the judge was simply wrong to find as a fact that she poured lasagne over her mother.  That never happened, she said: “You know how you feel when you’ve done something wrong. Like if I had of thrown lasagne at my mum, I’d think, “Oh okay, I was guilty and I got found out”. But when you’re actually innocent!  I feel like an innocent man hanged.  I’ll go to my grave knowing that I never poured lasagne over my mother. But I’ve been caught on the “balance of probabilities”. And the police evidence shows I didn’t. And it shows that Social Services rigged the notes. It’s all there in black and bloody white!  And the judge has patently ignored it.” 

Caroline reminded me that although social services said that a carer had witnessed the lasagne being thrown, in fact that carer had “told the police that she hadn’t seen me throw the lasagne, but social services had written down that she had. [… ] When we were in court and [the carer ] said “no, I was in the kitchen”. I’m going “YES! Now your lies are all exposed!” But oh no, according to the judge, the fact that she was in the kitchen doesn’t change the fact that the notes they rigged say she saw you throw the food. How can I ever clear my name?”. 

Caroline believes that social services had “deliberately lied” about the lasagne incident (and other matters), motivated by their wish to portray Caroline as a monster, so as to enable them to remove Mrs P from her home (where she has an expensive care package) and put her into a care setting (which would be cheaper for them).

It’s very clear to me that Caroline is desperate to protect her mother from going into a care home – it’s one of her greatest fears that social services will do this. Although Arbuthnot J stated clearly in court that there was no intention to put Mrs P in a care home, Caroline says that the police records that she obtained following her arrest demonstrate otherwise. 

“I want you to report this. 15th September 2023 at 11.21 (this is one week before the lasagne incident).  The social services person told the police officer with MASH [Multi Agency Safeguarding Hub] (Caroline is reading the next sentence from the report)“adult social services are currently looking at ways that [Mrs P] can be removed from the home and put into a care setting. However, this is not an easy process”.  Their intention, written down in black and white by a police officer, was to have my mother taken out of her home and placed in a care setting. That’s what they said – and the judge just completely ignored this – but it’s all written down that Social Services were trying to find a way to take my mother out of her own home and into a care setting, but the family were proving ‘a difficult obstacle to overcome’.  And then – how convenient! – a week later I was arrested!”

She describes how traumatic the arrest was: “When they came round here and said, “you must come down to the station with me – you’ve been accused of ABH and I knew I hadn’t done anything. “It’s a mistake!”,  I told the police, “I’ll come down later and chat”.  I said – I’ll never forget and I can’t get my head around that – I said, “well, no, I’m not even dressed!”.  They said, “We’ll watch you get dressed”. I said, “No you won’t!  Go away – I’ll come round later!”. Because when they came to my door, I thought someone had died, you know. When the police come to your door, initially you think someone’s passed away, a loved one, and then, when I was sitting there with this dressing gown on and they were saying, “now there’s ABH”, my reaction was – well, I said, “what are you going to do if I don’t come?” and they said “we’ll arrest you” and I said “well, bring it on then!”.  And it was such a claustrophobic feeling, once those cuffs were on, I went round like a headless chicken in here. I was shouting for the neighbour to go and get my father and then, when they were holding me down, in the chair just there, my head- I had bruises black and blue, I thought they’d done a rotator cuff injury, I nearly suffocated in the chair – and it was like slow motion.  [My partner]  was at work. He came in and saw the place had been pulled around, but do you know they were three months with all my personal data on my phone, going through- I don’t know what they were looking for. What did they think they were going to find? They put me in a cell. They wouldn’t give me any water. I was allowed one phone call.  And [my partner] said, “well where are you?”, I said, “I’m in a prison cell” and everyone starts laughing, they don’t believe me. I’m so claustrophobic, and I still have nightmares, and I’m still waiting for counselling about being in that prison cell. I was in that cell nearly six hours unlawfully. I was suffocated by a police officer because I resisted arrest. That’s because I was so indignant, I wouldn’t go to the police station. They put cuffs on me and I was treated like a criminal. Thrown in the back of a van and put in a cell for six hours. I was pacing up and down. I was treated like an animal, and then I was told I couldn’t see my mother for three months. I lost three months of my mother’s life because of them.  And for something I never did!

Like many other families caught up in COP proceedings, Caroline emphasises the central role that “family” plays in vulnerable people’s lives.  “Can we stress in your piece that social services need to listen to the families. That’s what I want to get out of this. They need to listen and understand that we have their best interests at heart. We know the person better than anybody else – certainly better than social services that just poke their noses in and misinterpret.”

And she points to the high cost of court cases (the first hearing, she says, cost the family nearly £10,000 as they tried – and failed – to get a legal team on board to represent Mrs P instead of relying on the Official Solicitor):

“Don’t forget to put something down about taxpayers’ money: what a waste of taxpayers’ money all these cases are. Must be half a million spent on this case I would think. They could be funding her care instead of ridiculing a family that have gone above and beyond the call of duty to look after Mum and saved her life, numerous times, all of us. I’ve loved, protected, and adored my mother. I’ve given up my life to look after her.  And more than most people, well, we most probably are too close, but it’s just the way we are, and I just can’t believe what other people do and get away with and I get shamed for doing this.  I had to save her life in that wretched hospital and it’s just so hurtful that they call what I’ve done “abuse”.  My mum means the world to me. That’s why I did what I did and I’d do it again. I’d walk over hot coals for my Mum. Everything I’ve done – I’m really proud in a way – I’ve given my Mum three extra years of life. She’s alive and she’s at home and she’s got a life that I tell you now, she wouldn’t have without the intervention of me and my strong family. We have been there – me and [my partner] and my dad, we’ve been by her side, we have done everything for my mum. She knows that deep down.”

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)

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, on LinkedIn and on BlueSky as @doccmartin.bsky.social

Footnotes

[1] There is no restriction on the publication of Caroline Grady’s name – but we are prohibited from naming other family members (and this accords with their wishes).

[2] When two legal teams turn up in court to represent P”;  “Complex issues for the court and plans for an ‘omnibus’ capacity hearing” and “Let us be alone as a family again”: An application for unsupervised contact at Christmas”

[3] In Re SA (2005) EWHC 2942 (Fam), Munby J held that, even if a person does not have an impairment of mind or brain, the inherent jurisdiction can be used in relation to an adult who is unable to protect themselves from harm because (for example) they are subject to coercion or undue influence and therefore disabled by another person from making a free choice. That decision affirmed the existence of the “great safety net” of the inherent jurisdiction (a term coined by Lord Donaldson in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1) in relation to all vulnerable adults.

[4] The family are angry that the fact-finding preceded the capacity determination (by a few days), but I cannot see that it would have made any difference to the outcome whether capacity-determination or fact-finding had come first. In my view, the finding that Mrs P has capacity to make her own decisions about contact is all the more compelling for incorporating into the capacity assessment the findings of the negative impact of the mother/daughter relationship on Mrs P.  Mrs P was aware of her daughter’s “brutish” behaviour and (the judge found) could weigh it in the balance when considering contact,  and still capacitously wishes to spend time with her daughter.  A capacity assessment which did not take into account the “facts” of the mother/daughter relationship (as determined by the judge) would have been open to challenge on the grounds that capacity to remain in an “abusive” relationship has to include the ability to understand, retain and weigh the abuse and its consequences.

Mother refuses to return P to the UK in defiance of court order – but there’s no application for committal for contempt of court: What more can the court do?

By Amanda Hill, 3rd September 2025

The protected party in this case (her court-assigned initials are AB but we’ve called her “Miranda”, which isn’t her name) is a woman in her early twenties with “a diagnosis of autism, ADHD, behavioural difficulties with limited communication skills.” She “is largely non-verbal[1], but can construct some short words and sentences together“.

In defiance of a court order, and to prevent Miranda being temporarily moved out of the family home for assessment purposes, Miranda’s mother took her to Jamaica in early February 2023. The court has been trying to find her precise location since then. The court now knows where Miranda is living in Jamaica and its involvement with this family going forward is expected to be limited.

The judgment from this hearing, AB & Ors, Re [2025] EWCOP 27 (T3) (25 July 2025), sets out what it calls “The Lengthy Background” to this case. The background in the judgment includes details that I wasn’t aware of before about the extent and duration of the state’s involvement with the family. It helps put the Court of Protection proceedings into perspective and demonstrates why publishing judgments is so useful.

We’ve been following this case (COP 14027239) for over two years and this hearing, on 18th July 2025, was the fourth I’ve observed since March 2025.  We’ve already published two blog posts about earlier hearings in this case: “Removing P to another country to evade the orders of the Court” (heard by Sir Jonathan Cohen on 8th June 2023) and “Two years on, P is still missing: Judge refuses application to conclude proceedings, holds proceedings partly in private, and issues injunction with penal notice against mother” (heard by Mr Justice McKendrick on 19th March 2025). 

In this blog I’ll use the judgment to briefly summarise the background, before focussing on the hearing I observed on 18th July 2025. I then reflect on the achievements of the court proceedings and the impact of those hearings on the family. 

Background

The judgment makes clear that the state has been involved with this family for a long time.  Professional concerns about Miranda’s welfare go back to January 2013, when Miranda became known to the local authority’s Children with Disabilities Team. In February 2015, there was a ‘strategy meeting’, held because of concerns that Miranda’s needs were not being met by her mother (§5). In 2016, the local authority tried to visit Miranda at home without success. In January 2017 social workers met with Miranda and her mum but were prevented from entering the house and so the meeting took place in a car. Another strategy meeting (child protection) took place in June 2017, but the case was closed in September 2017. This was because the concerns were not considered to be social care but rather ‘educational’.

Nothing is noted in the judgment for the five years after September 2017. However, in July and September 2022 social workers raised new concerns and an adult safeguarding strategy meeting was held on 28 September 2022. Visits to the family home between September and November 2022 were either unsuccessful or highlighted concerns. The judgment notes that “As of 9 December 2022, the concern was that AB’s parents were refusing access to her social worker who wanted to assess her capacity and carry out an initial needs assessment” (§10).

This is when the Court of Protection became involved for the first time. §11 sets out what the local authority application to the court was seeking to achieve: “

An urgent application was made to the Court of Protection on 9 December 2022 seeking a hearing on or before 23 December 2022 due to the nature of the potential risks to AB. The order sought was for a “direction to enable [A]CC to visit [AB] to assess her capacity regarding care and support and carry out an assessment of her needs pursuant to the Care Act 2014”. Additionally, a declaration was sought in relation to AB’s capacity and, if she lacked capacity, a best interests decision regarding her care and support.” (§11)

HHJ Hodges held a hearing on 21 December 2022. This was not attended by Miranda’s parents, who refused delivery of the papers from a server. The papers were left on the front doorstep. On 29 December 2022 the police used police powers to force entry to the family home to conduct a welfare check on Miranda. There was then agreement for a telephone call between a social worker and Miranda’s mum, but the telephone was subsequently disconnected.

There were further hearings before HHJ Hodges on 11 January 2023 and 3 February 2023, again not attended by the parents. The judge ordered that, in Miranda’s best interests, she be moved to a residential home for people with autism spectrum disorder in order for her to have an assessment. He also ordered that she should remain in the family home until the agreed date for her transition to the residential home on 6 February 2023.

On 6 February a team, including the police and social workers, turned up at the house and forced entry but Miranda was not there. The only person in the house was one of Miranda’s two older sisters, YM, who told the team that the rest of the family had moved away. There was another hearing before HHJ Hodges on 10 March 2023, at which it was confirmed that Miranda had flown with her mother to Jamaica a week before the 6 February visit, although §26 of this judgment says they flew with British Airways on 6 February, the actual date of the visit, along with her sister XM,  and “the property listed for sale” (§16). A further hearing resulted in orders which “contained lengthy recitals about Miranda’s father’s position, including the suggestion that Miranda’s mother intended to stay in Jamaica until the conclusion of proceedings” (§16). The judgment doesn’t make clear how Miranda’s father was contacted and became actively involved in the case.

The case was transferred to a Tier 3 judge, and the case was before Sir Jonathan Cohen on 8 June 2023. This is the hearing that we blogged about. He ordered that Miranda should be returned to the UK by midnight on 7 July 2023. This did not happen. Another hearing was held on 3 August 2023, this time before Mrs Justice Roberts, and she ordered that Miranda be returned to the UK by midnight on 18 August 2023. This did not happen.

§19 of the judgment makes clear that Miranda’s father was still actively involved in assisting the court: “Mr O confirmed that on 16 August 2023 he had spoken to XM on her mobile and had heard AB and Mrs O singing happily away. He was satisfied, from what he heard, that AB was happy, safe and well. He was unable to confirm AB‘s address. His ability to communicate with Mrs O appeared to have reduced since he had given the Court her contact details and he now relied on XM for contact with Mrs O.” [§19]

I think it is worth setting out in full paragraphs 21 and 22 and the start of paragraph 23 of the judgment, as they succinctly highlight the futility of the court’s efforts to ensure Miranda’s return to the UK:

§21.  “The matter returned to court and was heard by Williams J on 15 September 2023. He made an order attaching a penal notice against Mrs O. The order required AB “to return to England and Wales and live in the family home” and not to be removed once there. The return was to be given effect to by Mrs O by no later than midnight 22 September 2023. The Chief Constable of A Police Force was also invited to assist the Court. Upon return AB’s passport was to be held by the High Court tipstaff.”

§22. “On 22 September 2023 Mr O sent an unsealed order made at the hearing on 15 September 2023 to his daughter XM, and he was of the view that she blocked him following this”.

§23.  “A few further orders were made and then little then took place for some time until the applicant made an application dated 20 February 2025 to withdraw the proceedings.”

In summary, despite multiple hearings over more than two years, before a number of  different judges, and the court issuing numerous orders that Miranda’s mother return her to the UK, including a penal notice (meaning Miranda’s mum could go to prison), Miranda was still in Jamaica at an unknown location in February 2025. It seems as though the local authority was willing to give up at this point: it applied to the court to end proceedings. A draft order was sent in the expectation that the decision would be made “on the papers”, i.e. without a hearing. But acting judge Ms Katie Gollop KC declined to grant the application[2] and directed that the matter be addressed at a hearing. The case came before Mr Justice McKendrick on 19 March 2025. This was the first hearing I observed and blogged about.

Mr Justice McKendrick was also not willing to give up. At the hearing on 19 March 2025, McKendrick J described the application to withdraw proceedings as “misconceived”. He wanted at least to ensure that the court knew Miranda’s current home address and he was concerned for her well-being because she is a “highly vulnerable British citizen”. As a result of his orders at the hearing of the 19 March and subsequently on 28 March 2025 and 4 April 2025 (Miranda’s father attended all these hearings), Miranda has now been located. But her mother has resisted all attempts to take Miranda back to the UK and she remains in Jamaica.

The hearing of 18th July 2025

I attended this hybrid hearing in person – and I’m so glad I did because the microphones weren’t working. This meant that two online observers were excluded from the hearing. The judge apologised for this.

At this hearing, as in the previous hearing I’d observed, Jim Hirschmann was representing the applicant, Essex County Council; Keri Taylor was representing Miranda (via her Litigation Friend, the Official Solicitor) and Rose Harvey-Sullivan was representing the third respondent, Miranda’s father. I noticed that Counsel for the third respondent was the same as the hearing we blogged about in 2023, so she has been involved for two years. Miranda’s mother was the second respondent but was not represented and did not attend the hearing.

There was no summary at the start of the hearing[3]. The judge’s first words were asking where Miranda’s mother was.  She was not on the link. The judge didn’t seem surprised. From the following discussions in court it was ascertained that the Court knew where Miranda was living (and had done for over two months), there weren’t any acute concerns about her, Miranda’s mother was still receiving benefits in Miranda’s name (as her appointee) from the UK Department of Work and Pensions, even though she was no longer in the UK, it wasn’t clear what her other sources of income were, the judge was concerned about the impact on Miranda of benefits stopping…….But what more could be done?

The judge said [4] “It strikes me that this Court has done its job. We have located Miranda…it is now down to the local authority and local constabulary and the Jamaican police….she is a highly vulnerable British citizen overseas…these are expensive public hearings….Has their utility come to an end? A highly vulnerable adult has been removed from the jurisdiction…if she was a child (there would be?) inter-agency working….This court does not have boots on the ground…it makes orders and return orders have been made….”

The discussion then turned to contempt of court. Nobody seemed very keen on bringing proceedings against Miranda’s mother for contempt of court (according to the judge) as there was a question as to what would be achieved by that (according to Counsel for the applicant). The judge confirmed that nobody was bringing an application for contempt “at this stage”. He said it “turned on” how satisfied the LA was that Miranda is protected.

The position of the third respondent, Miranda’s father, was that proceedings should be concluded. What would be achieved by continuing them as “there is no clear plan as to what should happen next” and it’s “difficult to see how (continuing them) would help Miranda’s welfare”.

At this point the judge said he was tempted to dismiss proceedings and a CoP9 could be filed for contempt “if necessary”.

As for Miranda’s Counsel (via the OS), she said that the OS has a client she has never met, who is publicly funded. The OS understands that the LA wants to continue investigations …they are inviting the LA to fund Miranda’s legal representative to go and see Miranda but recognised that the chances of this were “vanishingly slim”…the Legal Aid agency funding legal proceedings in Jamaica would be on a “hiding to nothing”.

The judge said that was “nothing to do with me” but he understood the OS concerns. “We are where we are” and “We know where Miranda is”.

The OS made a suggestion that in order for Miranda’s mum to “face whatever music there is”, the LA could offer to fund a return flight for Miranda and her mother. But because of a combination of factors and the jurisdiction issue, there is “little the OS can do”.

There was then a discussion about staying (pausing) proceedings or concluding them. If proceedings were concluded, the OS would not be involved anymore and there might be legal aid difficulties in the future (the OS is funded by legal aid for Miranda). Counsel for Miranda (via her Litigation Friend the OS) confirmed that proceedings would be live until there was a final order.

The judge set out his thoughts. There could be a case made for Miranda’s mother being responsible for the costs of proceedings and may be in contempt…”but in the light of information from the DWP and the benefits situation ….the parties would not want to pursue contempt if she brings Miranda back to the jurisdiction…..some thought could be given to that”.

The judge seemed to be setting out ways to encourage Miranda’s mother to return to the UK with Miranda.

Finally, he wasn’t “minded to conclude proceedings today” because of the cost implications for the LA and the OS. The LA needs to be clear what steps are available, including liaising with adult social services in Jamaica and the British High Commission.

He stated there would be a published judgment setting out his concerns and covering the use of third-party disclosure orders, so that lessons could be learned concerning how they can be used to locate people. He stated that if Miranda had been located earlier, maybe she could have been returned earlier. But he wasn’t making any orders. Proceedings are stayed for six months. But the judgment (§32) clarifies that if no application is made to continue proceedings by the end of six months, then proceedings will be dismissed with no costs orders.

Paragraph 43 of the judgment reflects his line of thought: “….ever mindful of the need for this court to take a proportionate approach, I see only (a) very limited role, for this court going forward.”

And that was that. The hearing had lasted about an hour.

What have the Court proceedings achieved and what impact have they had on the family?  

I found it interesting to go back to the first blog we published in 2023 and consider how things have developed over the past couple of years by comparison with what the Court hoped to achieve. The hearing in that first blog was on 8 June 2023 and was before Sir Jonathan Cohen. According to the blog, “it was listed to consider the issue of Miranda’s return to the UK and what steps are necessary now.” At that time, Miranda’s father was talking about selling the family home and moving to a different area, to a different local authority “enabling the family to start a new working relationship with another local authority”. The blog states: “He doesn’t think it’s in Miranda’s best interests to return to the current home, or for Miranda to be assessed by social workers within their current local authority, since that relationship has broken down.  …..He says that the plan is for Miranda and her mother to return to the UK by the end of July 2023.”

At the end of that hearing, as reported in the blog, the judge decided to order Miranda’s return to the UK: “After this long period of time, and what seems to me to be only superficial cooperation between the parents and the Local Authority, it is now time to make an order for Miranda’s return, and that is the order I intend to make.” To offer a “carrot” to the mother, he stated that “…..no party is seeking at the current time for Miranda to be removed from family care.  Secondly, I think it is proper to say that the mother should not be arrested upon her return to England, but I suspect there may be a proviso that she lodge her passport or hand it in to the tipstaff or immigration authorities on arrival.”

As he was going through his order, “Counsel for the father pointed out (“respectfully”) some of the “blunt language” that she said was “spooking” the mother and that the mother was experiencing as a “threat”.  The judge added, at the end of the recitals, that no party was seeking for the mother to be arrested on her return.  I think he also did not make any penal notices: “I can’t imagine the existence of a penal notice will make one of them say, ‘oh my goodness me, I’m going to have to completely change my behaviour’!”

But on 15 September 2023, the judicial view had changed (perhaps because of the passing of time, without the return of Miranda). A new judge, 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 disobeyed and was found as a result to be in contempt of court, she could be imprisoned, fined, or have her assets seized. There was later some debate as to whether Miranda’s mother had actually been served with the order.

By the time I first observed a hearing on 19 March 2025, before Mr Justice McKendrick, there had been little progress. Miranda was still in Jamaica, and the Court didn’t know exactly where or how she was.  And now there was an application from the local authority to end proceedings. As my blog reports, Mr Justice McKendrick had other ideas. He wanted Miranda to be located. In that hearing, he considered the contempt of court issue. He stated that if Miranda’s mother had been served by the order (from Mr Justice Williams),  “… 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.” (as reported in the March blog). He was taking a more “stick” approach. He also authorised the use of third-party disclosure orders to aid the process of identifying where Miranda was.

By the time of this hearing in July 2025, Mr Justice McKendrick had achieved his primary objective. Miranda had been located (on 30 April). There were no immediate concerns about her well-being. Paragraph 28 of the judgment states that “UK Police requested a welfare check in respect of (Miranda) utilising Interpol. They were able to confirm that the Jamaican authorities had completed it giving the following response: (….) Her daughter [AB] was observed sitting on the veranda been (sic) fed by her mother. She appeared to be in good physical health and seem quite animated as she communicated with her mother and sister.”

The judge also wanted to make sure that lessons were learned about this case, so that a similar situation, of not being able to locate P for years, could be avoided.  Paragraph 34 from the judgment spells that out: “Secondly, this judgment is produced because there were steps that could have been taken to locate AB earlier, when it became clear Mrs O (Miranda’s mother) would not comply with the return orders. It may be helpful for practitioners in the Court of Protection to understand the steps that can be taken to locate missing persons. Such orders in the High Court are often used to locate missing children…….”

However, it doesn’t look as though Miranda will be returning to the UK any time soon, as Cohen J had ordered in June 2023. And despite the penal notice attached to the order to return Miranda (by Williams J in September 2023) no contempt of court proceedings are currently anticipated against Miranda’s mother. Her share of the house won’t be seized, and she won’t be going to prison. There is still a risk of future action about contempt of court though and it remains to be seen if the Jamaican authorities will take further action. The judge summed up, in paragraph 41 of the judgment, the situation with regards to contempt:

§41.  “I should also add that whether or not there is to be an application for contempt is one for the applicant and Official Solicitor. There appeared to be a reluctance to consider any form of contempt against Mrs O because it was felt to be lacking in utility because she is in Jamaica. However, directions and orders made in March 2025, clarified that Mrs O likely owns fifty percent of the family home. The possibility of confiscation of Mrs O’s interest in the family home pursuant to COP Rule 21.9 (1) if she were found to be in contempt of court, certainly appeared to encourage Mr O to cooperate.”

The court believed that a “stick” approach then had worked in its favour to at least make some progress.

 A court’s powers are huge. However, this family, or at least Miranda’s mother, has been determined not to comply with court orders. And now the court is choosing not to exercise their powers. One could argue that the family has won a sort of victory. But that’s not to say that there hasn’t been a significant cost to the family due to their actions, including being separated. The Position Statement for the Third Respondent also makes clear that Miranda’s father has few savings left due to the cost of his legal fees.  And as it seems as though the DWP will stop UK benefits, that will mean a significant drop in income available for the mother and her daughter, so there seem to be significant future financial implications. And still potential legal consequences if the mother were to return to the UK, because of her use of a UK address to claim benefits when she and her daughter were overseas. I guess the family see all that as a price worth paying for keeping mother and daughter together.

I’d like to end with a final reflection on the judgment. Towards the end of the hearing, there was a discussion between counsel for the Third Respondent (Miranda’s father) and the judge as to how much information should be included as background narrative to the decisions set out in the judgment.  Paragraph 1 of the Applicant’s (Local Authority) position statement (PS) states “A background/narrative is filed with the position statement ” so I assume the discussion related to this document.

The father (Third Respondent) disputes some of the information included by the Local Authority in the background narrative. The Third Respondent PS for the 18 July hearing sets out his concerns:

§2 “The court has also had the benefit of a narrative of the background facts to these proceedings…..it is agreed insofar as it is consistent with the records.”

§3 However in places the content of those records is not necessarily agreed by the Third Respondent; for instance he does not agree with the portrayals of the family as uncaring and denies …. [I’ve chosen not to repeat the allegations that the father denies]”

The judge said in response that “some has been edited out and some is relevant”. Maybe he said “would be” edited out – I’m not sure. But this short exchange brought home to me that judgments are subject to the editorial choices of the judge and how he or she decides to present any case and any party. And this is one reason why what happens in hearings can sometimes seem very different from what ends up in a judgment (and why it’s important to observe hearings).  How families and family members are presented (framed) in judgments is an area I plan to explore as part of my PhD research.

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)

Footnotes

[1] Ss quoted from §5 AB & Ors, Re [2025] EWCOP 27 (T3) (25 July 2025)The term ‘non-verbal’ is a direct quote from the published judgment. Dr Gill Loomes-Quinn, Co-Director of OJCOP and a disabled socio-legal scholar-activist with a background in community advocacy, tells me that in the autistic/autism communities it’s becoming more common to talk about “non speaking” rather than “non-verbal” in recognition of the fact that lack of speech doesn’t necessarily mean lack of thoughts and the words to express them (which is pertinent to capacity). Some people are unable to produce the mechanics of speech but do still communicate (or attempt to communicate) using language (eg via AAC devices)

[2] I read in the PS for the Third Respondent for the 19 March hearing that she sent an email to the parties saying “I am not content to conclude these proceedings” and listed her reasons.

[3] I am grateful that all parties sent me their position statements in response to my request as they have been very useful in supporting my understanding the hearing.

[4] I don’t do shorthand or touch type so my notes are likely to be incomplete and quotes not entirely verbatim

At the margins of ‘Deprivation of Liberty’: On not losing myself – care and thoughtfulness from HHJ Beckley

By Maggie Bruce-Konuah, 1st September 2025

I joined the Observers’ WhatsApp Group of the Open Justice Court of Protection Project in June 2024, and this is the first blog I have had the courage to write.  

My interest in the Project, and in the Court of Protection, comes from my personal experience as a caregiver and attorney for my partner, who was diagnosed with dementia about five years ago. Acting in his best interests as appointed under his Lasting Power of Attorney has raised many questions for me about capacity, responsibility, and ethical decision-making.  I value the Mental Capacity Act’s ethos of empowerment while also recognising the daily challenges of putting it into practice.

The hearing I attended was a remote hearing about DoLS before HHJ Beckley sitting at First Avenue House on 27th August 2025. I’ve observed hearings before with other members of the Project, which I usually find gives me a richer understanding through shared discussion. On this occasion, however, I observed the hearing alone, which gave me the freedom to reflect in a more personal way, even if that meant relying solely on my own interpretation of what was happening.

I’d initially asked to observe a 2pm hearing that day, but it turned out that the 2pm hearing was in-person and I wanted to observe remotely. I got a very nice email from court staff saying “you are very welcome to attend the in-person hearing, but we are too short staffed to set up a remote link for the hearing. You are welcome to observe the 12noon hearing which is remote”.  Both involved DoLS cases and the same judge, so I was happy to join the earlier one.

Although the hearing only lasted 20 minutes, there were a surprising number of technical glitches that had to be overcome. For me, this ended up being very interesting — it gave me an insight into how the judge handled them.

Problems started almost immediately. The Official Solicitor was delayed in joining the hearing. While waiting, Judge Beckley asked me directly whether I had received a copy of the transparency order and if I’d had a chance to read it. As I was observing alone on this occasion, and not in the company of fellow members of the OJCOP Project (as always before), I felt more anxious than usual, and when Judge Beckley directed the question to me personally, I got so flustered that I switched my camera on by mistake instead of unmuting. Eventually I managed to reply that yes, I had received it and agreed to be bound by it.

Because the Official Solicitor was delayed as a result of technical problems, Judge Beckley used the time to give me an opening summary of the case so that I would have some background. At that point I hadn’t yet received the position statements.

When the lawyer representing P via the Official Solicitor finally joined, he froze mid-sentence. Judge Beckley remarked lightly, “Oh, I think he has frozen — or is it me?” His tone was humorous without losing composure, and he kept things moving. When the lawyer had to change to a colleague’s computer, the name on the screen didn’t match, but despite these interruptions the hearing carried on. At one point, Judge Beckley excused himself briefly and, on returning, promptly he told us that he had forgotten to put a ‘Do Not Disturb’ notice on his door.

What struck me was the way Judge Beckley handled these obstacles with wry humour and humanity. I was particularly touched that he spoke to me directly and even called me by name. At the end of the hearing, he asked both lawyers to share the position statements with me once they had my email address. I was tempted to thank him for his thoughtfulness but held back, uncertain how to address him. As it turned out, the statements reached me within an hour of the hearing ending.

Observing the hearing made a strong impression on me. Despite the technical problems, the time pressure, and the uncertainty about which Tier 2 judge would be available for the next hearing, HHJ Beckley kept me in mind throughout. That consideration, given to an observer who contributed nothing to the proceedings, was moving. It felt powerful to be held in mind in that way, especially as my presence was more or less invisible.

The Case

The case (COP 20005041) concerned a young man with severe disabilities, whose deprivation of liberty would need to be reassessed as he approached his 18th birthday. No family members were present, but from the position statements I had a strong sense of their supportive presence in his life.

As the Judge discussed scheduling for the next hearing, he explained that he himself would not be available until the end of September. Another judge, perhaps HHJ Hilder, would have to hear the case. He noted that she was “incredibly busy”. Despite the weight of these pressures and the difficulties of the hearing, the whole matter was completed within 20 minutes, which felt remarkable.

Personal Resonance

This hearing was my first formal encounter with a DoLS case. It had a special resonance for me as I discovered recently, in a fragmented way, that my partner — who has dementia and was admitted to hospital with a medical problem — has been, and is still, placed under a deprivation of liberty order on a hospital ward. He is subject to 24-hour one-to-one supervision and control.

That experience has helped me to understand, on a visceral level, how easily autonomy can be subsumed under the guise of safety, support, and risk management. I notice the gulf between how I describe what’s happening as ‘supervision and control’, and how one of the hospital caregivers referred to it, as ‘support’.

I am anxious that this first instance of DoLS on the ward may set in motion a pattern that repeats itself when my partner is discharged to another setting, especially if the setting and care plan necessitates the DoLS.

Witnessing HHJ Beckley’s humanity in the hearing offered a vital counterpoint to the helplessness I felt on the hospital ward, and reminded me that, even from the margins, small acts of recognition and thoughtfulness can matter profoundly.

Autonomy and Loss

I’ve been thinking more and more about autonomy, and how for many of us it is taken for granted until it is about to be lost.

When my partner was placed under a DoLS order, I felt that we were both at the margins: invisible, without agency.

Yet being at the edge can also sharpen awareness. It is both a disadvantage, and, strangely, a heightened vantage point. I was reminded of a passage from Kierkegaard in The Sickness unto Death:

“The greatest hazard of all, losing oneself, can occur very quietly in the world, as if it were nothing at all. No other loss can occur so quietly; any other loss – an arm, a leg, $5, a wife, etc. – is sure to be noticed.”

Maggie Bruce-Konuah is the informal caregiver for her partner, who was diagnosed with dementia about 5 years ago. 

Making it possible for families to tell their Court of Protection stories: How we got the reporting restrictions changed (while P is still alive)

By Celia Kitzinger, 29th August 2025

Earlier this month, Sandra and Joe Preston published an account of their experience in the Court of Protection and queried whether the case about their relative’s “deprivation of liberty” was a good use of judicial time, tax-payers’ money and in the public interest.  You can read their blog post here.  “A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest”. 

The person at the centre of this case (“P”) was Joe’s mother, who has dementia and lives in a care home. Sandra and Joe describe how concerns about DOLS dragged on for years, raised by successive RPPR (Relevant Person’s Paid Representatives) resulting in numerous short-term standard authorisations, before eventually resulting in a s.21A challenge in the Court of Protection in June 2025.  Much to Joe and Sandra’s relief, the judge approved an Order that Joe’s mother should continue to reside at the care home where she had been living (they say) “as happily as her condition would allow for the past four and a half years.  Nothing needed to change and there was nothing that could be done to make her life better”. It was a good outcome, but the process leading up to it had been gruelling: Joe and Sandra felt like “criminals” being “dragged through the court” and Joe’s mum was distressed by continual interrogations from professionals about where she would like to live. Professional concerns about “deprivation of liberty” became an intrusion into their family life for people who “certainly didn’t want our last days/weeks/months together taken up with Court of Protection and DOLS bureaucracy but instead to spend what precious time we may have left with her before the inevitable happens”.  Their blog post raises important questions about why this was all considered necessary.

The implementation of statutory Deprivation of Liberty Safeguards and the way they are (or are not) working in practice is a matter of legitimate public interest. I very much admire Joe and Sandra for the civic responsibility they have demonstrated by publicly sharing their experience, in an accessible form, as a contribution to debate and critique of this area of the law.  They also want to be able to reach out to other families whose loved ones are going through DOLS and offer the kind of  understanding ‘listening ear’ that comes from shared experience. Publishing a blog post was a way of telling people about their experience and offering to make themselves available to support others.

But there was an obstacle preventing Joe and Sandra from achieving these laudable aims.  There was a court injunction against them, preventing them from identifying themselves as family members of a “P” (protected person) in Court of Protection proceedings.  The injunction meant that Joe and Sandra could have written anonymously about the case, but as soon as they used their own names, they were identifying themselves as “member[s] of the family of the subject of these proceedings”, as the order puts it – and that would have breached the injunction.  Breaching court injunctions is a serious matter: on the first page of the order it says (with capitals and bold type as reproduced here): “ IMPORTANT: If any person disobeys the order … they may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized”

Almost all families in the Court of Protection are bound by the same injunction: it’s the “standard transparency order” produced by default for all Court of Protection hearings and it says that nobody can publish information that identifies (or is likely to identify) the person at the centre of the case as a “P” in Court of Protection proceedings, or their family members. Sometimes the identity of other people (or even public bodies) is also protected. The transparency order in the case concerning Joe’s mother (COP 20009718) also included the manager of her care home. 

As in almost all the 400+ transparency orders I’ve seen, the order against Joe and Sandra lasted  “until further order of the court”: in other words, indefinitely.  They would still not be able to write or speak publicly about the Court of Protection case, even after Joe’s mother died.

So, this blog post is about how we got the injunction changed, so that Joe and Sandra could identify themselves as the son and daughter-in-law of a protected person in Court of Protection proceedings (and could do so while the protected person was still alive).  I hope it’s useful to other families who also want to speak about their experience in the court.

If you’re reading this blog because YOU want to speak out about a Court of Protection case, it’s important to understand that it’s usually much more straightforward to change (“vary”) or get rid of (“discharge”) the transparency order after the protected party’s death[1].  Much of the challenge in this case was to do with the fact that the person at the centre of this case was still alive – meaning that there are (legitimate) concerns about her right to privacy. 

Each case is different and needs to be considered in relation to its particular facts. These facts might include: what are P’s wishes and feelings about the application; how easy is it to identify P if family members speak out about the case, and is it likely that anyone would take the trouble to try to identify and locate P  – and if they did, what is the likelihood of harm to P?; who opposes the application and why?. It’s all about balancing the benefits (of free speech) against the costs (of harm to P, including invasion of their privacy). We’ve published several other blogs about  (successful) applications to vary transparency orders concerning living Ps: “A mother now free to tell her Court of Protection story” reports on Heather Walton’s (contested) application to name herself as the mother of a daughter with Down Syndrome involved in a DOLS case; and “I’m finally free to say I’m a family member of a P” reports on the protracted process endured by Amanda Hill to get the court to vary the transparency order so that she could identify herself as the daughter of a mother with dementia involved in a DOLS case.  (In both cases, it was the local authority – rather than the Official Solicitor – that raised the most objections and concerns about variation to the order, and in Heather Walton’s case the local authority actively opposed the application.).

So, now I’ll describe what we did in this case that resulted in the judge agreeing to make a new transparency order which “does not prevent the persons bound by this Injunction […] identifying Joseph and Sandra Preston as the son and daughter-in-law of [P]” (§8(i)(f), order of DJ Mullins, made on 10th June 2025 and issued on 20th June 2025.  The process followed here might not be right for every application – you’ll need to consider the particular facts in your own case.

How we got the reporting restrictions changed

Getting the reporting restrictions changed was very much a team effort between me, Joe and Sandra. We didn’t use a lawyer – we didn’t think we needed to (and few lawyers have experience of the complexities of varying transparency orders in the Court of Protection – I’m pretty confident I know more than they do!). I’ll report on (1) the application forms we filled in – one from Joe and then later one from me; then (2) I’ll describe what happened at the hearing; and finally (3) the oral judgment – as is the case for the vast majority of Court of Protection cases, there’s no published judgment (another reason why this blog post and so many others that we publish matter for transparency is important).

 1. Application to vary the transparency order (COP 9)

With my help, Joe made a formal application to vary the transparency order, using a COP 9 form. You can download one here: https://assets.publishing.service.gov.uk/media/602a3d8bd3bf7f03208c2b40/cop9-eng.pdf.

There is no charge for making an application like this.

Anyone affected by a transparency order can make an application to vary or discharge it (it says so on the standard order at §10).  I make a lot of COP 9 applications every month to vary transparency orders (mostly to stop prohibitions on naming public bodies). The person making the application does not need to be a party to the case (in fact, Joe and Sandra were not parties), so long as they are “affected” by it – as Joe and Sandra clearly were: the order prevented them from speaking out in their own names about the case and interfered with their freedom of speech.  (Likewise, I was affected by the order because I wanted to publish a blog post by Joe and Sandra about the case, and I would be in breach of the transparency order if I did so with their names on it.)

It’s not a particularly long or difficult form to fill in, so long as you know exactly what you are asking for and what your arguments are as to why what you want (discharge or variation of the order) is the legally right thing to do. It has two sections:

Section 1 is very easy. It asks for the details (address, phone number etc) of the person filling in the form and their solicitor’s details if relevant (you don’t need a solicitor). It also asks: “What is your role in the proceedings?” and offers four boxes to tick:

  • “Applicant” (in this s.21A case, that was Joe’s mother)
  • “Person to whom the application relates”
  • “Other party to the proceedings”  
  • “Other (please give details)”

 Joe ticked “Other” and then typed into the text box: “Son, Next of Kin and Lasting Power of Attorney (both) for the Applicant”.  When I complete the form, I put: “Member of the public and co-director of the Open Justice Court of Protection Project, a voluntary organisation established in June 2020 to support the judicial aspiration for transparency by encouraging members of the public to observe hearings and to blog about them.”

Section 2 is harder. It has three sub-sections. The first asks: “2.1 What order or direction are you seeking from the court”.  The second asks: “2.2 Please set out the grounds on which you are seeking the order or direction”.  The third says “2.3 Any evidence in support of your application must be filed with the application notice” and gives some instructions. (I’ve never used 2.3 – though looking back, I think I probably should have done, since I have submitted witness evidence later; I’m grateful for the court’s tolerance of missteps by litigants in person who don’t fully understand the rules.) It’s the content of these sections that you probably need some help with – because they need you to be very specific about how you want the order changed (if that’s what you’re asking for) and/or to explain why it’s lawful to change or discharge the order now, and why in fact the court should do so on legal grounds (not just because you want them to!). I gave Joe a lot of help with filling in this form (and am happy to help others – just email the Project).

The form is badly designed.  There are character limits for the text boxes but it doesn’t say what those character limits are: if you type too much in the boxes on the screen,  then even if you can see all the words in your version of the document, it’s quite likely the text will turn out to have been cut off and be invisible to the recipient.  For that reason, Joe just put a couple of sentences in the text boxes and then attached some pages of text.

For 2.1 (What order or direction are you seeking from the court?), Joe wrote:

“Variation of the Transparency Order (TO) made and issued by DJ Ellington on 16 January 2025, in the standard terms.  The variation will (i) permit identification of myself and my wife as family members of [P]; and (ii) cause the injunction to cease to have effect upon [P’s] death. Proposed wording is attached.”

It’s important to be very clear and factual and to specifically identify the order you are seeking to have changed – especially as in any COP proceedings there may have been more than one TO across the course of the hearings (and – as here – the TO was not necessarily made by the judge who is now hearing the case). It’s also important to say what exactly you want changed and how.  If you can offer some proposed wording (which can be challenging since we’re not trained to write legal documents), it can help the court. I helped Joe with the wording by drawing on the wording in other TOs that had already been varied to permit other family members to speak out.

In the attached document, Joe further specified that “The intended effect of varying §6 is to permit identification of myself and my wife as [P’s] son and daughter-in-law. It is not intended to permit identification of P (e.g. by name), or where she lives or is cared for, nor is it intended to permit identification of professionals involved in this case”.  He then set out the proposed variations. I’ve illustrated them here by reproducing the original text of the order and adding in red the changes Joe was asking for.  (If you have your own transparency order, you might want to look at it now and see how it would need to be amended to achieve the effect YOU would like to happen.)

In response to 2.2 (“Please set out the grounds on which you are seeking the order or direction” Joe wrote: “In the particular circumstances of this case, variation of the Transparency Order in the proposed terms strikes the right balance of my own and my wife’s ECHR Article 10 right to freedom of speech (and the public’s Article 10 right to freedom of information) with [my mother’s] ECHR Article 8 privacy rights. See attached.”

The ”attached” document explaining Joe’s grounds was five pages long.  It began by saying that the current order was “an unjustified restriction on our freedom of expression”.  He explained that he and his wife wanted to “talk and write about our experience as a family, in particular as regards the effects of the Mental Capacity Act 2005 on our lives… and our experience of court proceedings…”.   He said that they wanted to be free to “openly share information about the COP case with friends and family, and with other people involved in DOLS and COP, for example through the Open Justice Court of Protection Project”, and that they wanted to do that in their own names, since this would have greater impact than an anonymous text.

Joe said that unlike other cases where the protected party has been named (I gave him a list of examples of such cases including William Verden, Robert Bourn, Michelle Davies, Laura Wareham, Manuela Sykes, and if you google their names you can learn about them), he was NOT making an application to name the protected person (his mother)  – or anyone else in the family. If you are not actually applying to name P say so explicitly, because (especially if P is still alive) it will make your application less controversial. Joe acknowledged it it was possible that people would be able to figure out her name from knowing that she’s Joe’s mother – but also thought it very unlikely that anyone would bother (why would they?).  He wrote movingly about what his mother’s likely views would have been:

“We know that, when she had capacity, [my mother] would have wanted us to be able to publish information about her legal case. She would trust us to be sensitive and respectful of her privacy in doing so.  She has been caught up in a legal situation she could not have imagined in advance and would want us to be able to talk to other people about that, so that they can better prepare themselves for this sort of situation. She would want her friends and family to know the broad outline of what is happening in her life. She would be proud of me for wanting to use my experience to help other people, having instilled in me since an early age, values such as honesty, integrity, respect, kindness, and considering others.  She would not want me to shy away from an opportunity to support and assist others and she would consider it the coward’s way out to simply move on without looking back and sharing lessons about what went well, or less well, in order to do better next time.  If she knew that I had turned down an opportunity to help others, she would be unable to conceal her disappointment in me, and were she not quite so frail, she would probably threaten me with a clip round the ear.”

Finally, Joe also mentioned his reasons for wanting the duration of the order changed from “until further order of the court” to “until the death” of his mother.  This change, he said, would “obviate the need for another COP 9 application to discharge the TO on the death of [my mother], which would be distressing for me after my mother’s death, and also take up court time unnecessarily”.  He also pointed to a recent Supreme Court case (Abbasi) which – as I’d explained – is widely understood as making blanket reporting restrictions for indefinite periods (like “until further order of the court”) entirely untenable (see “Reflections on the Supreme Court’s judgment in Abbasi on the duration of reporting restrictions”).

Joe submitted the COP 9 form and we waited to see what would happen next. There was already a date listed for a final hearing concerning the substantive issues in the case (the s.21A matter) before District Judge Mullins sitting at First Avenue House in London on 10th June 2025.  Sandra reminded me (when I sent her an earlier version of this blog post) that “the local authority and the Official Solicitor tried to get us to delay putting in the COP 9 until after the s21A proceedings had finished” – which would have left the injunction hanging over their heads until another hearing could be arranged. We hoped we could get the judge to squeeze it in at the last moment while there was a hearing still listed (and which would otherwise have been vacated since the parties had now reached agreement, and the judge would be given a draft approved order agreed by everyone, including Joe and Sandra). Lots of hearings are vacated and if a judge actually has a slot available due to a vacated hearing, my view is always ask them to use it! Doing that definitely paid dividends. The judge did look at the draft approved order and made some changes that Joe and Sandra thought were helpful. And he did deal with the issue of the transparency order (which is what took up most of the hearing).

On learning from Joe and Sandra shortly before the hearing that there were some concerns from the local authority about the application to vary the transparency order, I also submitted an application of my own (very last minute!) asking to be joined as an applicant (or as an intervenor, or simply given permission to speak to the court) due to my experience with the Open Justice Court of Protection Project which has led to many applications for varying and discharging transparency orders.

DJ Mullins directed that both Joe’s application and mine (with me joined as an applicant) should be heard on the hearing on 10th June 2025.

2. The hearing

The first part of the hearing dealt with the s.21A deprivation of liberty issue for Joe’s mum.  Everyone agreed that she was now settled and happy in the care home and there was no need to consider alternative placement options.  She’s shown “no signs by word or action of objection to [the care home] since April 2024” and she has informed her solicitors that she “loves” the staff and “likes” the care home. The local authority apologised for the delays in bringing the application to court.  The standard authorisation was extended for another six months, and it was agreed that it was fine for Joe to act as his mother’s RPR.  This was all good news for Joe and Sandra (and for Joe’s mother).

Then the judge turned to the transparency order.

Joe talked about how much he cared for his mother and said he wouldn’t have made this application if he thought it would cause harm to her.  But the whole DOLS process had been “stressful and upsetting” to him and to his wife.  They feared they had already inadvertently breached the TO (e.g. by writing to their MP about the case) and they wanted now to “remove some of the fear from what has been an overwhelming process” by being free to talk to others about what has gone on.  Plus “Mum would be pleased that these challenges might create the opportunity for us to support others”.  Sandra added: “it would turn a negative into a positive”. 

Poignantly, Sandra also gave a very moving example of the effect of the TO on her life that very day.  “I’m here today”, she said, “on the anniversary of my Dad’s passing,  I had to tell my mum something about why I couldn’t be with her today – but I couldn’t say much without breaching the transparency order”.  She became tearful, adding: “I don’t want to be bound by these issues that tie us in knots when we’re seeking to help others”.

I don’t remember what I said: I couldn’t speak and make notes at the same time.  But I have a position statement which covers the basics, including:

  • the need for an “intense focus” on competing Article 8 (right to privacy) and Article 10 (right to freedom of information) as set out in Re S by Lord Steyn
  • the clear and legitimate public interest factors in this case, given an ageing population and increasing numbers of families facing the challenges of caring for elderly parents with dementia
  • the lack of evidence of any harm to Joe’s mother, given that the parties acknowledge that Joe clearly has his mother’s best interests at heart
  • the evidence that Joe’s mother trusted him and Sandra to act in her best interests (she appointed them both with Lasting Powers of Attorney)
  • the evidence that she would want Joe and Sandra to be able to speak publicly about what has happened
  • the risk to public perceptions of the justice system if family members’ freedom of speech is curtailed without compelling and robust reasons as to why it is necessary and proportionate so to do.

In the event, neither the Official Solicitor nor the local authority opposed our applications to vary the Transparency Order.  The local authority raised various caveats – including

  • concerns about “editorial guidelines and/or standards” of the Open Justice Court of Protection blog (For anyone facing that objection in future, it may be useful to quote Lieven J: “it is of the greatest importance to understand that it is not for the Court to consider the quality or fairness of the reporting. The Court is not an arbiter of the editorial content of reporting” Tickle v Father & Ors, [2023] EWHC 2446 (Fam))
  • a suggestion that the court “may find the justification that the amendment is necessary because writing under one’s own name rather than a pseudonym ‘has greater impact’ to be relatively weak”.  Tell that to Lord Rodger in Guardian News and Media Ltd and Ors [2010] UKSC 1: “’What’s in a name?’ ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature”

The local authority also resisted the suggestion that the (revised) transparency order should expire automatically on the death of Joe’s mother, proposing instead that the order should extend for an additional three months. The justification for this seemed to be to protect Joe and Sandra on the grounds that their position “may change” when she dies, because “loved ones passing is a very difficult time”.  It seemed unclear to the judge (and to me) what the local authority envisaged might happen on P’s death that could be averted by this variation.  At most, he said, “there might be a simple and dignified statement” added to the blog posts, naming her and recognising her death. 

3. Judgment

The judge thanked all the parties for their submissions and (very graciously) added that he was “grateful to Professor Kitzinger for bringing her experience of transparency and transparency orders and practice into this case and making an application of her own and for her position statement and oral submissions”. 

He said he would make a short judgment. After acknowledging the competing rights at play, he said he would allow the application to vary the order in the terms requested – although he would achieve this by discharging the current transparency order and making a new one.

The judge said that in coming to his decision he had taken into account the relevant legal framework and the facts of this case. He highlighted the motivations behind the application that weighed heavily with him in lifting the restriction on naming Joe and Sandra.

“Mr and Mrs Preston have emphasised that the story they want to tell is their story – about the stresses and strains of being part of this process  and having a loved one who is going through this journey through dementia. They want to share their experience with the aim of helping and supporting others – and I think – and it’s a legitimate reason – helping themselves by discharging an obligation [Joe’s mother] would have wanted them to discharge. The change to the transparency order will also allow others to identify them and comment on their role in the case. They are aware of that, and Professor Kitzinger’s presence here today, representing the Open Justice Project she pioneered, embodies that fact – although this is not of course the only organisation or set of people that might want to write about this case, and not everything written about Mr and Mrs Preston will be what they would have wanted.  But what this reminds us of is how important this court’s presence is, and the importance of getting out into the open people’s experience of the process of coming to court and what works well and doesn’t work well.”

The judge acknowledged that there was a risk that Joe’s mother would be identified by virtue of Joe and Sandra’s names becoming public, and that there could be an effect on her own privacy – “and in a different way a consideration that even though she’s not named,  if Mr and Mrs Preston are named and wider public domain debate – even to the modest extent anticipated – takes place, then  her circumstances will move more into the public domain than she might have wanted.”.  Having said that, he acknowledged facts which militated against too much negative impact: she has a different surname from Joe and Sandra, and Joe is “absolutely clear his mother would have wanted to have him make use of her situation to help others even if that involve some degree of invasion of her privacy”.  His conclusion was that during her life-time the balance was clearly in favour of the revisions suggested. 

The judge also decided “on the facts of this particular case”, in favour of an order that ends on Joe’s mother’s death – i.e. without need for a further court application to discharge it.  That’s because he “accepted that [Joe’s mother] would have wanted to help other people and I sought to identify what interest of hers would be protected in that 3-month period proposed by the local authority and I struggle to see what the interest would be”.

Aftermath: what’s changed now that the transparency order is discharged?

In the three months since DJ Mullins changed the transparency order for Joe and Sandra Preston they have written two blog posts.  One deals with what went wrong in their family experience with DOLS:  “A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest”. Their blog post has been influential in prompting discussion and debate about the role of the Relevant Persons Paid Representative and we making plans to develop this.  Sandra has also taken the step of attending hearings at First Avenue House as an observer – and she’s written a blog post about that:  My first experience of being an in-person observer at First Avenue House (London): HHJ Beckley decides on where P should live and receive care 

Discharge of the transparency order has felt like a burden lifted in their personal life with family and friends. Joe says: ” The relief of being able to update friends and family who care about Mum has been immense.  Mum’s oldest friend, who used to phone her every week and stopped only when she could no longer make sense of their conversations, called this week to ask how she was and to see how we had got on at court, and it was such a relief to be able to tell her about the court’s decision.“

Because they are able to be open about their family experience of caring for an elderly parent with dementia – including their experience of DOLS and the COP – others with similar experiences feel more able to turn to them for support and understanding. Joe says: “A couple of weeks ago we were asked for advice by a friend of ours whose mother has been displaying challenging behaviour due to her vascular dementia; she said that knowing a little of what we had been through made her feel more able to talk openly with us.  Another friend who is caring for his elderly mother and facing challenges over deputyship also admitted he felt more able to confide because he knew that we had faced issues with court processes”. As I read this I was reminded that Joe and Sandra had raised in court their desire to help others in similar situations and that I was struck at the time- and am still more forcibly struck now – by the dismissive response of the local authority. The local authority said that, although educating others and sharing experiences is “a legitimate and justifiable aim under Article 10“, this argument is “… tempered by the fact that those involved in Court of Protection proceedings have the right to apply to become parties to that litigation and/or to seek expert legal advice should they choose. Mr and Mrs Preston will be providing … anecdotal accounts of their interaction with the public bodies and the courts, and are not in a position to offer any legal advice”. And that, I think, rather spectacularly misses the point! It’s precisely the “anecdotal account” – the experiential story – of Joe and Sandra’s interaction with the public bodies and the courts that strikes a chord with others, brings the law to life, and helps everyone to better understand the effects of law and social policy on our everyday lives. A big thank you from me to Joe and Sandra for their willingness to do this after a gruelling and distressing few years. It takes courage and commitment to (as Sandra put it) “turn a negative into a positive” by reaching out to help others.

Finally, although the court case is over, the challenges Joe and Sandra face are not. I’ll leave the last word to Joe: “We may have been able to close the door on the court case, but we cannot hide from the fact that Mum’s illness is still there and provides us with daily challenges.  That feeling of dread whenever the phone rings and we see that it’s the care home is one that we can’t avoid – but knowing that we can no longer be found to be in contempt of court is one weight lifted off our shoulders.”

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)

Footnote

[1] Discharging a transparency order, even after the death of the protected party, can also pose difficulties too – especially if family members disagree between themselves about whether or not people’s names should be in the public domain. This is probably more likely when the Court of Protection case has also involved disputes or disagreements between family members  See “When families want to tell their story”.   Public bodies – local authorities, ICBs, Trusts – can also oppose discharge of a transparency order even after a person’s death as here: “Silence from HHJ Rowland” – and as that blog post illustrates only too clearly, the legal processes can be impossibly complex and unhelpful.

Lieven J grapples with cuckooing and the effect of a DOL order

By Daniel Clark, 27th August 2025

This case concerns a young man with a hypoxic brain injury arising from a cardiac arrest. He is a drug user and a victim of cuckooing, (which is when a person’s dwelling is taken over without their consent for the purposes of committing or commissioning a crime). The applicant local authority seeks orders that it is in P’s best interests to move from his current property to a supported living setting.

I first observed this case (COP 20015137) before HHJ Chatterjee on Tuesday 29th July 2025. It was listed as an “urgent application” but it transpired that it wasn’t as urgent as the listing implied. While there was a tight timeframe, due to ongoing possession proceedings, the case had actually been in court since April 2025.

At that July hearing, HHJ Chatterjee set down the case for another hearing on Friday 15th August 2025 before Mrs Justice Lieven, and it’s the August hearing before Lieven J that this is the focus of this blog.

In the first section of this blog post, I set out the background of the case, including a brief overview of the July hearing. In the second section, which focuses on the August hearing before Lieven J, I will address the judge’s consideration of (a) whether a deprivation of liberty order is appropriate and (b) whether there should be an exclusion order to prevent the recurrence of cuckooing. I conclude, in section 3, with some thoughts on Lieven J’s approach to the case.

I am grateful to the parties for providing me with their position statements for both the July and August hearings – and although I didn’t have time to read them before the judge joined the August hearing,  Adam Fullwood (counsel for the local authority) gave a very detailed and helpful opening summary.

1. Background to the case and the July hearing

The protected party in this case is a man in his twenties who has been known to the local authority since childhood. He is a substance user addicted to a highly flammable substance which resulted in a cardiac arrest and subsequent hypoxic brain injury (a brain injury resulting from interruption of the brain’s oxygen supply).

He currently lives in a rental property, where he is a victim of cuckooing: threats are made against him, people steal from him, and he frequently flees to a family member’s property. The property at which he currently resides is now the subject of possession proceedings on the grounds of anti-social behaviour and breach of tenancy. The applicant local authority is increasingly concerned about his welfare and is searching for a new placement for him.

There are only two parties to this case: the applicant local authority and P, the respondent, who is represented by an Accredited Legal Representative. His aunt and mother are not parties to the proceedings and were not present at the July hearing, but did participate in August.  (It transpired at the August hearing that they hadn’t know about the July hearing and P’s aunt was understandably, and clearly, frustrated about this – but Lieven J considered it to be an act of omission rather than deliberate exclusion, and put it down to the fact that the parties had been working at pace during a period when it seemed P may soon be homeless.)

At a hearing on 29th July 2025, before HHJ Chatterjee who was sitting at Derby Family Court, the local authority indicated that they had identified a suitable placement. However, contract negotiations were ongoing because of the very real risk of fire arising from P’s substance use. By the August hearing, those negotiations had collapsed. However, another suitable place had been found.

Back in July, HHJ Chatterjee seemed stuck in terms of what she could actually achieve. The court could not make any declarations or decisions because it did not know what the available options were.

Furthermore, P’s litigation friend, represented on this occasion by Alex Cisneros of 39 Essex Chambers, expressed reservations about a transition plan, with the potential use of force, when there may well be other options available. He described this as “the most restrictive option. It’s a very significant step for [a man in his twenties] to be put in a [care setting] in this way. I think it’s right that the court invites creative thinking”.

At the July hearing, HHJ Chatterjee set down another hearing for Friday 15th August 2025. As I understood it, neither she nor any other circuit judge in the Midlands region was available. However, she did not think that the case should be heard by a Tier 1 (district) judge, and therefore listed it before Mrs Justice Lieven (the lead judge for the Midlands region, and Tier 3).

While I was somewhat surprised that a High Court judge would be used to essentially fill a gap in judicial availability, I took it at face value that Lieven J would hear the case on that basis. It turned out that there was more to it than that.

2. The August hearing before Mrs Justice Lieven

Contrary to what was implied at the July hearing, the case was not transferred to Mrs Justice Lieven merely because HHJ Chatterjee was unavailable. As Lieven J put it, HHJ Chatterjee, “felt it [the case] had become stuck, so I’m not going to give directions and let everyone off the hook. Let’s figure out where we’re going”.

As with HHJ Chatterjee, Lieven J’s first concern was the possession proceedings. It turned out that they had been adjourned until later this year, and this seemed to be welcome news to the judge and the parties because it permitted greater flexibility.  

In this section, I’ll first (2.1) explain the judge’s consideration of whether a deprivation of liberty order is appropriate in this case. Then (2.2) I’ll explain the discussions concerning what can be done about the ongoing cuckooing.

2.1 Is a deprivation of liberty appropriate?

With possession proceedings on the backburner, the judge had more time to focus on a concern that she had: “I’m very dubious about any judge moving [P] into a placement he is adamantly opposed to going to because it very rarely works in any context. From my reading of the papers, [P] is not someone who is likely to go, ‘oh, this was a good idea after all’”.

Counsel for the local authority told the court that they were considering P’s clear objections. One of the things they wanted to consider was whether a move could be presented “in a less restrictive way. It may be that [P] says he is willing to think about this if the restrictions are much reduced. He doesn’t want to be forced”.

It became clear that the judge also had reservations about forcing P to do anything. She took considerable time understanding the local area at which Home 2 was located, including looking at the brochure to ensure it didn’t look “institutional”. She asked whether it’s “a condition of the accommodation that there is a DoLS”.  While the social worker sent an email to find out, the judge focussed on the issue some more.

Judge: I am very, very unwilling to make a DOL [deprivation of liberty] order in this case. This is a man who has consistently had access to the community. He has not committed criminality in the community. He’s not actually put himself that much at risk in the community. The risk seems to be in [the current property]… I am very, very unconvinced as a point of principle that depriving someone of their liberty in order to force them to undergo therapy is a good way forward”.

Counsel for LA (LA): I hope the court will understand why the LA is concerned for [P]

Judge: There’s no question about that –

LA: …Those risks are significant

Judge: I’m not diminishing the risk, Mr Fullwood, both to [P] and, let’s be frank, to others as well. But I’m trying to get away from a knee-jerk reaction that someone who poses a risk therefore gets locked up. I don’t think that is a sensitive issue.

LA: We take that, but we are faced with a situation where nothing seems to be working. We had frank discussions at the Round Table Meeting – there must be some utility in what we are asking the court to authorise. We accept there would be no justification for a DOL authorisation to lock someone up, to lock [P] up, if he will not engage with the therapy.

Judge: It goes further than that. We don’t lock people up in the United Kingdom if there is some utility to it… I am not going to authorise locking him up to force him to have therapy.

At this point, the judge moved on to another topic but, for completeness, I’ll stick with the issue of the DoL order to which she subsequently returned.

At this hearing, P’s aunt and mother were present, and the judge spent a lot of time hearing the aunt’s views (it was mentioned at the start of the hearing that her views were also that of P’s mother).  Despite not having party status, P’s aunt (and mother) had been provided with the court papers (on the understanding they were returned) and Lieven J heard from the aunt at great length.

The aunt told the court that the family’s position was that “this decision should be down to [P]”. After being asked whether they could persuade P to accept the move, the aunt told the court that she thinks they could. In addition, she was willing and able to take him to see the new accommodation (which, at the end of the hearing, the judge said she’d like to happen).

Turning to P’s counsel (Arianna Kelly on this occasion), the judge wanted to get to the bottom of what P was actually objecting to. Is it because he’d see it as undermining his autonomy? Is it because he doesn’t like being around other people? Or is it another reason entirely?

Counsel told the court that the objection arose from the fact that P, “wants a flat of his own and he doesn’t see that as a type of care setting – just ordinary accommodation where there is nobody else living with him”.

To the judge, this explanation meant “it seems to me there may be a presentation issue”. As the proposed flat is self-contained, with carers in the block but not the flat itself, it would be – for all intents and purposes – closer to the type of “ordinary accommodation” that P wants.

As the hearing was coming to a close, Counsel for the local authority confirmed that they had received an email from the provider that said they “would not be in a position to accept him without a DOLS due to the significant risk he poses to himself and others…Could I suggest we go back to them? I think the way in which the court is wanting us to take this is not necessarily going out into the community – it’s what’s happening inside the property”.

That’s exactly what the judge was concerned about.

Judge: And what immediately springs to my mind is that what may be needed is a contract of expectations by which, for example, he agrees the staff can come in and check the property. Now, to be frank with you, any landlord in their right mind would have a condition like that.

LA: And it could be that part of the occupancy agreement … another phrase that seems to be gaining traction is that rather than calling it a contract of expectations, it’s a working together agreement

Judge: … Something that makes the landlord or the provider feel that they’re keeping other residents safe. Let’s be frank, you’ll be worried about the other residents.

LA: And can I be so frank as this hearing has been? The key issue is the staff have power to remove [the substance].

Judge: That’s going to be a problem, isn’t it? I know in the papers there’s something about it not being addictive, but it clearly is addictive where [P] is concerned…If they think he’s not going to use it, they’re deluding themselves.

LA: [I think at this point Counsel said, “they may think a DoLS would prevent that”.]

Judge: That’s not a DOL!  That’s a landlord and tenant – it’s an intrusion into – it’s a breach of the covenant of quiet enjoyment.

LA: They may not think that… with the court’s authorisation they may feel assured that if the court authorises this arrangement without a DOLS stopping him going into the community, that’s authorised by the court and isn’t on them.

Judge: It may be helpful to have a recital that I would expect [P] to enter into an agreement that would allow [Provider] to enter the flat in order to check for health and safety. I appreciate that would be a departure from the normal covenant of quiet enjoyment.

2.2 What can be done about the cuckooing?

Earlier, I said I’d return to another topic that the judge was also concerned with. Toward the end of the discussion about the meaning of a DOL, the judge had said, “to be frank I am a bit stunned that, given the principal risk is [Person X] and another [person] coming into [P’s property], the really obvious thing to do is get an exclusion order. Why somebody didn’t get that months ago –“ At this point she tailed off, later describing an exclusion order as costing “next to nothing and would solve the problem’.

Counsel for the local authority explained that he thought the police were taking this forward, and that it can be raised with the housing association. However, given the serious risk that these people pose to P, the judge said, “we may have to consider immediately getting an exclusion order. I can’t see a possible reason not to do that. The evidence is that they are exploiting [P]”.

When talking through the possibilities and practicalities of P moving, the judge asked the aunt whether it could be said that, “one of the advantages of moving him to [An Area] is that it gets him away from these undesirable people”.

The aunt agreed: “if I had space in my house, he would be living here, because of these people. He is a severely vulnerable adult”. She seemed to think there was some sort of “restraining order” that prevented contact between P and these people but she wasn’t sure.

Despite Lieven J’s ruminations on immediately obtaining an exclusion order, she didn’t actually mention this again. I wondered whether it featured in the approved order but, despite the fact that I am entitled to see it and therefore asked for it, I never received it. However, I do know that, by the time of the next hearing, Lieven J had directed evidence from the police as to what they are doing.

3. A common sense approach from Mrs Justice Lieven

At the start of this hearing, Mrs Justice Lieven’s attention was directed to my presence in the hearing. She was very welcoming: “Can I just say that I think it’s extremely good when members of the public attend…it’s important the wider world know what’s going on in cases like these”.

I knew that Mrs Justice Lieven is very welcoming of open justice because she’s a member of Transparency and Open Justice Board. I’ve also observed other hearings where she has said similar things.

However, other members of the public wouldn’t necessarily know any of this. It’s an important element of open justice that members of the public are made to feel that  their presence is welcome and valued. In just a couple of sentences, the judge achieved that.

I was particularly struck by Mrs Justice Lieven’s exploration of what a deprivation of liberty would actually achieve in this case. She had established both that P enjoyed going out into the community, and also didn’t pose a risk to himself or others while in the community. Why, then, should there be a deprivation of liberty order?

This is particularly pertinent given the belief that P would seriously object to any setting that is overly restrictive. The judge took steps to keep P at the centre of the decision-making without being waylaid by legal processes that seem detached from the lives of the people they are meant to assist.

This also seems to me to be a common-sense approach. I dare say that Mrs Justice Lieven would also describe it as such – throughout the hearing, she used phrases like “let’s be frank” and “to be frank”. From the perspective of an observer, this direct way of speaking was like a breath of fresh air. Rather than relying on euphemism, or leaving interpretation ambiguous, the judge was direct and to the point.

I was also impressed by the way in which the judge ensured that P’s aunt was involved in the hearing. As I have already signalled, she spent quite a bit of time asking for her opinion on various matters.

The aunt was not a party but her knowledge, and by extension the knowledge of P’s mother, was clearly valued. Indeed, the judge noted it would be more beneficial for the aunt and the mother to talk to P about the move. At one point she said, “my reading of the notes is that [P] is more likely to be favourably disposed to his aunt and his mum than professionals…it’s only natural after all. And so, if we’re going to sell this to him, they’re the ones to sell it to him.”

A little later, she reiterated the point: “I can’t emphasise too strongly that it is natural for someone in [P’s] position to trust his family members more than professionals. To be open to them, to not have suspicions…it’s not an unnatural response”.

Ultimately it is HHJ Chatterjee, not Mrs Justice Lieven, who will be making the decisions in this case. At this hearing, Lieven J’s role was to provide directions so that HHJ Chatterjee can make a decision at the next hearing in September. 

It seemed to me that this is likely to be the case, and I hope to find out for myself when the case returns to Derby Family Court in mid-September.

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.

Timely and effective access to the court:  Four case studies with judges struggling to deliver on transparency

By Claire Martin, 25th August 2025

Transparency and open justice are principles at the heart of our justice system.  Last year, the Lady Chief Justice created a Transparency and Open Justice Board, chaired by Mr Justice Nicklin, who said that the Board will “set objectives for all Courts and Tribunals, focussing on timely and effective access in terms of listing, documents and public hearings”. (Mr Justice Nicklin’s speech at the workshop held by Court & Tribunals Observers’ Network on 4th June 2025 at Green-Templeton College, University of Oxford, can be found here).

Mr Justice Nicklin acknowledge that transparency cannot be achieved merely by allowing members of the public and journalists to enter a court room (either in-person or via a remote link). Simply being present in court does not necessarily mean that we can understand what’s happening.  We need to be able to grasp what key issues are at stake in any given case; what the relevant facts are (and what remains uncertain and needs to be established); what statutes and case law apply and how they are interpreted; what is disputed between the parties and why.  Without this, we can’t observe or appreciate that (or how) justice is being done.

I’ve observed over a hundred hearings in the Court of Protection since I became involved with the Open Justice Court of Protection Project in 2020. Even though I am more familiar, now, with the language used in this court, and some of the procedures and ways of working, hearings can remain impenetrable to me – and to other observers –  if the court launches into a hearing as if everyone in the court knows the background to what’s happening.

So, what is ‘effective access’? As observers, we do not have access to the documents in the court ‘bundle’.  If we’re observing a hearing in a case we’ve not watched before, and if the court does not provide us with either an opening summary and/or the position statements, then it’s like joining in the middle of a complicated conversation.  We don’t have a clue what is happening and have to (try to) piece things together as we go along.

Three things that really help any observers in court are: (i) Position Statements ii) Opening summaries and (iii) Approved orders. Here’s why.

(i) Position statements

Position statements are especially helpful because they set out each party’s current position in relation to the matters before the court. Typically, they are somewhere between one and eight pages. They generally list the “essential reading”  from the bundle to which observers do NOT have access (e.g. expert reports, witness statements) and then rehearse the background and basic facts of the case and set out the party’s position with reference to relevant statute and case law. 

The current situation, since Poole J’s judgment in Re AB [2025] EWCOP 25 (T3)  is that observers can request, and counsel can provide, anonymised position statements without need for permission from a judge. The guidance says: “If an observer wants to see a party’s position statement they should ask the party in advance of the hearing and state their reason. If they cannot contact a party in advance of the hearing (whether at court or otherwise) they may make the request (with reasons) to the court and that request can be passed on to the party or their representatives.” (§36(4))

    We usually cannot “contact a party in advance of the hearing” because – unless we have been following a case over successive hearings (and even then, counsel can change) – we don’t know in advance who is acting as counsel. That information is never on the public lists.

    Since the Re AB judgment was handed down on 15th July 2025, the Open Justice Court of Protection Project has amended its guidance for observers to advise asking for position statements at the outset, when emailing to request the link for a hearing (if observing remotely) or on spotting someone official (like a court usher) or someone recognisable as a member of a party’s legal team (if observing in person).   

    When we request position statements, we are required to give a reason for wanting to see them, but Poole J acknowledges that there is a “low threshold” for what constitutes a good reason, “at least where what is being sought are copies of skeleton arguments or written submissions which are central to an understanding of the case, and that in many or most cases it will be easily cleared” (§27).  The wording suggested by the Project is: “so that I can follow the hearing and to support accurate understanding and reporting of it”. This has never been queried and seems to be routinely accepted as a legitimate reason.

    If any party refuses to send a position statement, Poole J’s judgment sets out a procedure whereby we can make an oral application to the judge (§36(7)). 

    It sounds straightforward in theory.  In practice, it’s rather more complicated.

    (ii) Opening summaries

    Way back in 2020 the then-Vice President of the Court of Protection, Mr Justice Hayden published guidance making “a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing”.  He pointed out that “[w]hilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context. This is my usual practice when sitting in court ….”

    This turned out to be a valuable suggestion from Mr Justice Hayden.  An opening summary of the facts of the case and the issues before the court was then, and remains now, very helpful in orienting us as observers at the outset of the hearing. If we don’t get PSs, or only get them a few minutes before or after a hearing begins (which, understandably, is often the case), an opening summary is especially important.

    We rarely receive PSs with sufficient time to read and digest their contents in advance of a hearing.  This is because hearings are generally not listed until the evening before the day of a hearing, and unless we know a hearing is on a specific date – and who all counsel are – we cannot request PSs until then. Inevitably, our emails are not read and actioned until the next working day.  So, an opening summary is important for transparency even when PSs may have been provided in the minutes before or after the start of a hearing (or when there is an intention – or direction – to provide PSs subsequent to a hearing).  Also, we’re not lawyers and PSs can be dense legal documents and hard for us to follow. In addition, there are often advocates’ meetings between parties after the PSs are written, meaning new developments may have been communicated to the court via subsequent emails, so the parties and the judge are proceeding on the basis of information which we don’t know about.

    We generally get opening summaries when the judge asks counsel to provide them, or provides one themselves (which in my experience has been frequent). Sometimes judges ask observers if we would like an opening summary, which is helpful. Sometimes counsel ask if they can provide one if the hearing seems otherwise set to proceed without one. 

    A good opening summary typically includes: basic details about P including diagnoses/impairments of mind or brain, and any determinations as to P’s capacity; what issues are before the court (and any disagreement between the parties); and what the judge needs to decide. These opening summaries can usually be provided in just 3 or 4 minutes.

    (iii) Approved Orders

    An approved court order (as described here by the National Legal Service): “… records an official judgment or way forward, as agreed by a Judge. A court order can be final (at the end of a hearing) or interim (which is in place until a final order can be made). What is in the order depends on the case presented to the judge and what evidence is necessary for just determination of the particular case”.

    We can request from the judge the approved order from any case heard in public (to which we have a right under COP rule 5.9) aftera hearing has concluded, but they are sometimes not sent (even after repeated chasing).  One judge (HHJ Redmond) recently asked counsel to send me the approved order without my asking for it, which was very helpful and efficient, saving email requests to the court office staff, who we know are overburdened in their roles.

    Four case studies

    Two weeks after the hand down of the judgment in Re AB, (between 28th and 31st July 2025), I observed four hearings (all remotely) in the Court of Protection, and it’s these I’m drawing on as case studies to illustrate how the provision of position statements, opening summaries and approved orders to members of the public actually works in practice.

    The hearings were (1) COP 13634847 before HHJ Clayton, Birmingham; (2) COP 13851997 before DJ Glassbrook, Northampton; (3) COP 20000888 before DJ Lucas, Slough; and (4) COP 20006349 before DJ Lucas, Slough. In this blog I will focus on what happened following my request (in each of the four cases) for Position Statements (requested in advance of the hearing) and approved orders (requested after the hearing).  I will say for each hearing whether or not there was an opening summary (provided by whom and how), and consider the extent to which each hearing was actually transparent to me as an experienced observer seeking to advance the judicial aspiration for transparency.  What’s clear from my experience, I think, is how much  work it takes – for observers, court staff, counsel, solicitors and judges – to try to fulfil the judicial aspiration for open justice in the Court of Protection.

    Most Court of Protection hearings are held not in London before specialist and Tier 1 (T1) judges,  but in county courts across England and Wales.  The four hearings I observed (summarised below) were in Birmingham, Northampton and Slough before T1 and Tier 2 (T2) judges.   Each of the four hearings concerned key matters of legitimate public interest: an objection to a deprivation of liberty (1); a ‘‘failed Re X” case (2); arrangements for two sisters who had been ‘decanted’ from their home due to hoarding and cuckooing (3); and the management of what the judge described as “a war zone” between family members and carers for a woman with dementia (4).

    So how did the courts do with transparency in relation to these hearings concerning matters of legitimate public interest.

    Position Statements

    Across these four hearings, I received only ONE position statement in time for the hearing itself (sent ten minutes before the hearing began). The other PS in that first case (before HHJ Clayton) had apparently been filed only 3 minutes before the hearing began, and the judge hadn’t seen it either (1).

    In relation to the second hearing (before DJ Glassbrook), I was told that there were no Position Statements filed, and for the third (DJ Lucas), that there were position statements but the judge hadn’t received them yet. 

    In the case of the fourth hearing (DJ Lucas again), I received no PS before the hearing started, despite the judge having tried to help by emailing the court office, asking for my request to be passed to counsel so that they could send me their PSs before the hearing.  I have since received all three: two during the course of the hearing and one the next day after it had been anonymised.

    There were seven Position Statements prepared in total (the hearing before DJ Glassbrook had no PSs) across these four hearings. I received one before the hearing, two during the hearing, and one the day after the hearing. That means that I have received four of seven PSs, and three are still missing despite follow-up email (and chasing) requests.

    Opening summaries

    There was no opening summary for two of the hearings (before HHJ Clayton and DJ Lucas).  In one case the judge (DJ Glassbrook) provided an opening summary; in the other (the second one before DJ Lucas), there would not have been one but that counsel for P via the Official Solicitor (Gemma Daly) intervened to ask the judge’s permission to give an opening summary for me as an observer (thank you!), which was immediately granted. 

    Approved orders

    Three of the four orders (all requested on 3rd August 2025) have still not arrived more than three weeks later, despite chasing.  I don’t know why not.  In relation to DJ Lucas’ orders, I was told that one was delayed until a date for the next hearing had been decided on, and I received the other on 20th August 2025.  The approved order I’ve received is extremely helpful to me because it sets out clearly what was directed by the judge at the hearing, meaning I don’t have to rely entirely on my (contemporaneously typed) notes if and when I report on that hearing, which (in this case before DJ Lucas COP 20006349) I hope to do after the next hearing.

    Problems on the ground

    Here’s more detail about each of the cases, focusing on the problems as they emerged on the ground.

    1.  HHJ Clayton, COP 13634847  – Birmingham (28th July 2025)

    This was the first time I was asking for Position Statements since the Poole J judgment (and guidance) in Re AB. So, I asked for the TO and PSs and cited Poole J’s judgment in my email requesting the link for this remote hearing.

    I almost gave up on this hearing (listed for 10am) as it hadn’t started by 10.30am, but at 10.40am I was contacted by counsel for the OS, sending me the PS and asking whether I had received the TO. I replied saying I hadn’t received the link to observe – or the TO. The link then arrived – but no TO. A court officer sent me the TO at 10.49am and I was admitted into the hearing at 10.51am. So, in this case, I received the (anonymised) PS from a party before getting the link to observe the hearing or the TO.

    I looked at the PS and it sounded an interesting case concerning a 70-year-old man with a diagnosis of Korsakoff’s syndrome, alcoholic amnestic syndrome , ‘cognitive impairment disorder’ (wonder whether they mean ‘mild cognitive impairment’ – since ‘cognitive impairment disorder’ isn’t a recognised diagnosis), COPD, rheumatoid arthritis, macular degeneration, anxiety and depression. He is objecting to his current supported living residence, which is why the case has come to court. He wants to go back to the area where he lived before and be near his family. He is divorced and his three children don’t want any contact with him, sadly.

    It’s a best interests decision and the Local Authority has, seemingly, been dragging its feet.  It also transpired (much to the judge’s displeasure) that the Local Authority (LA) had not filed their PS until 3 minutes before the start of the hearing. I have emailed the ‘solicitor advocate’ for the LA (Patricia McCausland) requesting their PS but I have not (yet) received it.

    My engagement with the important issues in this case was overshadowed by the judge’s behaviour towards me as an observer.

    There was no opening summary, but the judge addressed my request for PSs. In this particular case, the hearing was on a Monday, so I had emailed over the weekend (which we as observers often do, having read the listings on Friday afternoon or evening). She said that if I email my request at the weekend when the ‘court offices are closed’, there’s very little time to respond on the day. I spoke up and said that public listings (via Courtel/CourtServe) don’t usually appear until close or subsequent to office closing hours the day before a hearing, so it’s not usually possible to request either the link to the hearing, or the Position Statements, any sooner than the evening before. The judge didn’t respond to this. She said they had delayed the start of the hearing to ‘deal with [my] request’. She also said she didn’t know why I thought the hearing started at 10am when it had always been listed to start at 10.30am. It may, I suppose, have been listed at 10.30am in the judicial diary, but it was most certainly listed for 10am in Courtserve – as displayed below. Judges often don’t know how their cases appear in the public lists.

    It’s unsettling to (in effect) be told off by a judge in open court. I have been told – many times – by judges that I should request links and documentation ‘earlier’ – and that’s frustrating advice, since it’s simply not possible to follow it. If we’re at work (which most public observers are), then given the time at which public listings appear, we can’t email until that evening or (given domestic responsibilities) first thing the following morning – or (for Monday hearings like this one) over the weekend. The Open Justice Court of Protection Project has previously published blogs by those of us chastised by judges for what feels to us like something entirely out of our control.  We wish judges would understand that – and appreciate the negative effect on transparency and open justice of their apparent irritation and misplaced advice (see: Why members of the public don’t ask earlier to observe hearings (and what to do about it) and If this had been my first court observation, it would have been my last!)

    The default assumption from the judiciary seems to be that we observers have failed to make timely requests when we could and should have done so (and are consequently making unbearable demands on the court)  – when in fact the public listing system does not support transparency, or enable us to make earlier requests, as it should.

    2. DJ Glassbrook, COP 13851997 – Northampton (31st July 2025)

    At this hearing, there were just four people:  me observing, the judge, one  lawyer (Anslem Billy, acting for Northamptonshire County Council and not a barrister but an ‘Adult Social Care Lawyer’ according to his email signature) and P’s sister (who is applying to court to be her sister’s 1.2 representative). [I had not received anything except the link in advance of the hearing – no TO and no PSs.]

    The judge, DJ Glassbrook, was very welcoming.  He immediately addressed the fact that an observer was present at the hearing (I think so that P’s sister understood) and read out the Transparency Order (which was in ‘standard’ terms – preventing the identification of P or any of P’s family), saying it is ‘his practice’ not to anonymise public bodies. It transpired that the one lawyer involved did not have the Transparency Order either.

    The judge explained the situation  to the sister very straightforwardly.  “The Court hearing is not private. People not directly involved may attend. Ms Martin is an example –  nobody may publish anything ….. [he explained the standard TO and not anonymising public bodies] …. There is an injunction which gives her the details. Ms Martin quite properly asked for the Transparency Order.  The challenge that I have is that, unlike a High Court judge,  I do not have a clerk.  I don’t have time for emails.  I have to do my best to fit things around other hearings. I had hearings at 10 o’clock this morning, and 11 o’clock and 11.30. The time before 10 o’clock was preparation for other hearings. So, I simply don’t have the wherewithal to deal with things as promptly as perfect. When Ms Martin asked for the Transparency Order,  I sent an email back to the central hub in Birmingham saying ‘Please let her have a copy’.”

    The judge asked me if I wanted to comment.  I asked if he wanted me to put on my camera (‘Yes why not!) and then said ‘You have observed before –  indeed we have met before’.  I agreed that we had, and said I hadn’t received the TO. The judge said ‘That doesn’t surprise me’. I also said that I’d requested the PSs for the case, to which the judge replied ‘I don’t think we have any?’ The lawyer confirmed: “There is no PS!’.

    I know – from looking frequently at court listings – how judges’ daily lists often include back-to-back (or even simultaneously listed) hearings. We also know, at the OJCOP Project, that around one in three hearings is ‘vacated’ (cancelled) on or just before the scheduled hearing day. Perhaps this is why judge’s diaries are so jam-packed. But what if they do all go ahead? That morning, for DJ Glassbrook, was one of those mornings. I was left wondering what judges’ employment contracts contain, and whether they are allowed breaks or a cup of tea. And then they have observers requesting things from them on top of all that.  Open justice is a fundamental part of our system, but it can’t be the most efficient use of a district judge’s time, or a cost-effective use of staff skills, for them to be sending and chasing emails to court staff asking for documents to be sent to observers.

    It was the judge who provided the opening  summary. P is a woman (I don’t know her age) with a diagnosis of schizophrenia. She lives in ‘bespoke accommodation’. The Re: X fast-track application was declined (by a previous judge). I knew from Eleanor Tallon’s  blog that, sometimes: “‘Re X’ applications are made, and upon reviewing the evidence, the court decides this streamlined process is not appropriate and the case needs to be heard”. 

    DJ Glassbrook explained that, in this case: ‘capacity evidence is not the most stringent I have seen’, expressing consternation that the capacity report from the consultant psychiatrist contained ‘bald assertions rather than, ’This is the conversation, these are the answers I had back and from that it is apparent that….’. That bit is not there. And then, retain information, it is more a bald assertion rather than ‘the reason I come to this decision is’”. The solicitor said that everyone agreed that P lacked capacity for the decision in question, including P’s sister, and that the hearing had been listed on a ‘fast-track process’. The judge said ‘That may be right, that we have the correct interim declaration, but I need to set a final hearing if we get that far. I wouldn’t be very chuffed if we get there and the evidence doesn’t stand up. We do not have the necessary evidence to make final declarations:  the evidence not strong. Of course, the fundamental point, firstly, if this lady has capacity, [is that] I don’t have jurisdiction, and if she HAS capacity then any deprivation of liberty cannot possibly be authorised by anybody and it would mean she’s free to get up and go wherever she likes. I know it’s not a s.21a case but there are similarities. I am being asked to authorise deprivation of liberty, and I can’t do that if she’s got capacity.’ [Judge’s emphasis]

    DJ Glassbrook was very facilitative to P’s sister, explaining the options for legal aid, what a 1.2 representative needs to know, and the advantages and disadvantages of becoming a party (one disadvantage being that ‘if we end up having an independent expert on capacity, all parties would need to chip in on paying for that’).

    The judge had (in a previous hearing, that I didn’t observe) directed that an ALR be appointed – it hadn’t happened, so he picked one himself and told the lawyer to sort it out and ensure P’s sister got all the documentation. He asked the lawyer to send me and P’s sister the TO. I tracked down the email for legal services in Northampton County Council and sent him my email and I received the TO later that same day, and a promise to send me the sealed order when it’s available.  The next hearing for this case is Monday 22nd September via MS Teams.

    3. COP 20000888 – DJ Lucas, Slough (31st July 2025)

    At both this and the 3pm hearing on the same day (my fourth case study), DJ Lucas was very efficient and helpful. He welcomed me to the hearing and checked that I had received the Transparency Order (which I had, along with the one for his next – 3pm – hearing, at 07.43 from the court hub).  

    I think 7.43am is very early for court staff to be sending out TOs. I had received an auto-response from the Reading hub (which Slough comes under), saying:  ‘HMCTS staff are working under significant pressure due to a lack of staff and the current urgent need to triage, list, vacate, and re-list cases. Your enquiry will be addressed, but it will take longer if these are alongside emails asking for updates’. The whole system seems under enormous strain.

    Counsel for P started by stating that the PSs for the hearing had been ‘filed late’. DJ Lucas said, ‘I don’t have any PSs. Unfortunately, at three minutes past two they haven’t made their way to me’. That explained why I had not received them prior to the hearing.

    But then the court launched straight into the substantive matters of the hearing without an opening summary.  I found it hard to understand at first. I gleaned that the applicant is Wokingham Borough Council, represented by Louise Thomson and that  P was represented by Tim Baldwin, via the Official Solicitor.

    The case concerned a woman (I don’t know her age or ‘impairment/s’) who is currently living in ‘decanted’ accommodation: what an awful phrase – they all used it – she’s not a bottle of port!  She’s been ‘decanted’ with her sister, while their council house (in her sister’s name) is being deep cleaned and repaired. There is some suggestion of ‘cuckooing’ and some unsuitable associates of P’s sister, who also seems to have her own challenges. She hoards, which led to a rat infestation (hence the ‘decanting’). The local authority wants P to move to independent supported living and has identified a suitable place. They want P’s buy-in, and she seemed keen on the move when her sister was not there, and then less keen when she was. So, there was some suggestion of inappropriate influence or even coercion and control, but it was not explicitly named. The OS position was not settled on a view as to whether P should be (forcibly) separated from her sister, with whom P wishes to stay living. The judge said ‘her sister seems to have a strong presence – the expert report is that her sister has a lot of influence over her’.

    It then transpired that P and her sister have been ‘decanted’, together, for almost two years. At first the judge thought it was one year, saying:  “The sisters have been decanted from their home for a year now. Well, if it were my home and I was told I would have to move out for a 2-day job to be done and here we are a year later, I suppose [there’s] clearing up to be done, but even so this is an extraordinary amount of time”.

    The judge wants a statement from the Local Authority housing department about why the works are taking so long. Counsel for the LA said that delays were ‘due to completing electricity checks at the property’, and the judge replied ‘Does it take long for an electrician to go round? Is it that extraordinary for a Local Authority with housing stock to carry out an electricity check?’. My thoughts exactly.

    Interestingly, once he realised that it was two years since the sisters had been ‘decanted’, the judge floated a theory that it might be ‘convenient’ for the local authority that the property isn’t ready for them to move back to, stating ‘that is how it appears’.

    The plan is for the LA Social Worker to show the proposed new accommodation to P on her own (without her sister) and to ascertain P’s own wishes and feelings about the proposal to move there (without her sister, since it was reported that ‘it seems likely’ that the placement would not accept P’s sister as well – another unknown that the judge asked to be clarified by the next hearing). The case might end up with the LA applying for authorisation to force P to live separately from her sister, but they are not yet at that point. The case is back in court in the week commencing 13th October 2025 (or as soon as possible thereafter).

    I managed to follow quite a lot of what was going on in this hearing, even without the PSs or an introduction – this is because the judge himself had not received the PSs and counsel needed to apprise him of their positions.

    4.  COP 20006349 – DJ Lucas, Slough (31st July 2025)

    At this 3pm hearing DJ Lucas opened proceedings by introducing me as an observer and  asking if I had been sent PSs. When I said ‘No’, he said (with marked irony) ‘That’s great news, because I specifically asked the court office to ask for them to be relayed and specifically requested that her email be forwarded to allow that to happen. Sorry they have not reached you. My apologies. I have tried my best to facilitate’.

    The judge checked and none of the lawyers had received my request from the court office. The judge asked me to put my email in the group chat and for them to forward the PSs to me, and he reminded counsel at the end to send me their PSs. I received two PSs during the hearing and the third the next day.

    Although he didn’t remember to give (or request) an opening summary to this case (or the previous one that I observed before him), DJ Lucas had clearly tried very hard to arrange for me to be sent PSs in advance of the hearings. There has to be a better way to get this done than using up judges’ time like this.

    The case was very interesting. It concerns residence and care for P, who is a 90-year-old woman with dementia who lives in her own home with her daughter (L). Another daughter (D) was in the hearing. At home P has live-in care, with a new provider: that’s because service from the previous provider broke down. Issues before the court relate to residence and care in her own home, and also to the Lasting Power of Attorney for Health & Welfare that L holds. The COP has suspended this LPA during these proceedings, in part due to allegations against L by the Local Authority. There are currently no contact restrictions in place and no person has proposed, at the moment, that P should move from her own home, but there have been suggestions (from a previous social worker) that she should move to a care home. The applicant is the Royal Borough of Windsor and Maidenhead (represented by Michael Paget). Both daughters  are to become property and affairs deputies and no one disagrees with this.

    Proceedings have been going on for some time (the TO I was sent was dated November 2024). Efforts to try to improve relationships on the ground between L and the carers have been made – and there continue to be allegations against L by the LA (and vice versa). A fact-finding hearing regarding these allegations is likely. A ‘schedule of allegations’ needs to be properly compiled and meanwhile, in the approved order (which I received on 20th August) there is a ‘Schedule to Order’ setting out the expected behaviours for both L and the carers in relation to caring for P and communications between them all.

    It looks like the next hearing will be ‘mid-Oct to mid-Dec’, so (given that we cannot – unlike journalists – sign up for ‘alerts’ for specific hearings from the court) I will need to keep checking the listing in Courtel/CourtServe for hearings in Slough in those months to ensure I do not miss it.

    Conclusion

    These four case studies show the problems with transparency in practice in relation to position statements,

    • 4/7 position statements (only one of them before the hearing) – but not a surprising finding when the judges hadn’t received them in advance either
    • 2/4 opening summaries – judges simply forgot about these when under pressure of time and trying to also to sort out the position statements for me, and for themselves
    • 1/4 approved orders – the other three are quite likely still stuck in the system somewhere and not yet available to anyone, three weeks later, and one awaits listing of a next hearing before it can be finalised.

    Despite this, I think everyone – including the judge who chastised me – wanted to deliver on transparency. Expressions suggestive of frustration, exasperation and cynicism that the system would support the judicial aspiration to transparency were common across the hearings. The problems are systemic as the whole justice system seems to be unravelling without sufficient staff or resourcing.

    There are so many places where things can go wrong.  Court staff at regional hubs (from which we request links to observe) don’t always pick up our emails in time to forward our  requests to the court at which the hearing is actually taking place. The hearing courts then don’t receive our requests in time to send us link. Even when the requests are passed on before the hearing to the judge, judges’ diaries can be so choc-a-bloc that they simply don’t have the time to give the go-ahead for a link (or to approve court documents to be sent). And even when the judge does receive an email and seeks to ensure that the observer gets a TO and PSs, as the cases before DJ Lucas show, this is sometimes not actioned in time by court staff – probably due to an unrealistic list of demands on the overburdened court staff, rather than any deliberate obstruction. The outcome is the same though – open justice becomes the casualty. It’s clear that judges themselves are frustrated by this.

    Court staff seem run off their feet in many hearings we observe, and  they almost always appear to try their best to facilitate access for observers; district judges’ listings look wholly unrealistic to an outside eye, with no time for a comfort break, lunch or simply time to think.  Like seats on an aeroplane, they are booked in the expectation that some will  not be filled (which is often so and is another cause of problems for observers (see “a day in the life of a court observer” for an observer’s experience of multiple vacated hearings).  Requests for approved orders seem to get lost –  most likely in the avalanche of duties for court staff. When court staff, lawyers and judges already feel harassed and overburdened, it can feel as if open justice needs to go to the end of the queue.

    If Nicklin J’s words are going to butter any parsnips then the court system needs to grapple with how it can efficiently respond to people who want to understand what happens in court and grant us (as Nicklin J hopes) “effective access in terms of listing, documents and public hearings”.

    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, on LinkedIn and on BlueSky as @doccmartin.bsky.social