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 acknowledged 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

Commentary on Re YD (Refusal of Withdrawal of Treatment) [2025] EWCOP 31 (T3)

By Jenny Kitzinger, 20th August 2025

A couple of weeks ago I observed a hearing about ‘YD’, a 60-year-old man in a Prolonged Disorder of Consciousness at the lower end of the spectrum (a vegetative state). The Trust had made an application that it was in YD’s best interests to withdraw life-sustaining treatment, specifically clinically assisted nutrition and hydration. This was opposed by YD’s family and friends as well as (by the end of the hearing) the Official Solicitor acting as YD’s litigation friend.

At this contested hearing, the Trust’s witness (YD’s treating consultant) and the independent expert (Dr Andrew Hanrahan) gave evidence that continuing life-sustaining treatment was not in YD’s best interests. The witnesses for the family, YD’s two partners and a close friend, all thought that clinically assisted nutrition and hydration should continue and that it is what YD would want for himself. I blogged about the hearing and what the witnesses had to say here: “A patient with “unusual” spiritual beliefs: Is withdrawing a feeding tube in his best interests?”.

The judgment has now been published: The Hillingdon Hospitals NHS Foundation Trust v YD & Ors (Refusal of Withdrawal of Treatment) [2025] EWCOP 31 (T3) (12 August 2025).  The judge, Mrs Justice Theis, Vice President of the Court of Protection, decided that it is in YD’s best interests to continue to receive clinically assisted nutrition and hydration to keep him alive.

The judge acknowledged that the best interests test must “consider matters from the patient’s point of view”, though this is not “determinative” (§80) and she thought that she “now has a rounded picture of the values and beliefs that would be likely to influence YD’s decision if he had capacity” (§82). His values include “long held beliefs about the healing power of the mind, body and soul” and beliefs “regarding the spiritual world and healing” (§83). The judge said: “Having looked at the wider evidential picture I do not accept the narrow view taken by Dr Hanrahan [who thought it was not in YD’s best interests to continue with CANH] as it did not pay sufficient regard to the evidence of YD’s beliefs and values and wishes and feelings” (§87). The strong presumption in favour of life is not, she said, displaced in this case (§87).

I was pleased to see that, after making the decision for YD, the published judgment goes on to discuss the need for the ICB to play an active role in cases like this, and comments on the need for appropriate funding and placement for patients in YD’s situation (§88-§92). The firm representing the NHS Trust which made the application emphasised this:

“A significant aspect of the evidence was the spotlight it placed on the challenges faced by acute Trusts in managing patients in prolonged disorders of consciousness, and the question of who should initiate applications of this nature. […] Mrs Justice Theis highlighted the need for clearer guidance on when and how ICBs should be involved in Court of Protection applications. […] Importantly, the judgment reinforced that ICBs cannot remain passive. Mrs Justice Theis stated that ICBs must take a proactive role, avoiding delays, ensuring all relevant parties are represented, and seeking urgent directions from the court where necessary.” (“Law and Belief: Navigating clinical certainty and spiritual conviction in the withdrawal of CANH”)

The role of ICBs (and previously CCGs) has been an issue in several cases I’ve observed going back to 2016 (whether or not the concern raised during the hearing made it into the published judgment), so I hope Mrs Justice Theis’s foregrounding of such issues in the published judgment will help to focus minds on resolving problems.[1]

In this commentary, however, my focus is on the decision in Re YD, which I explore in relation to:

(1) its legal context, particular how ‘best interests’ decision-making plays out when the protected party holds strong religious or spiritual beliefs;

(2) the broader context of best interests decision making beyond the courtroom, drawing on my experience of similar cases that never reach the court;

(3) new media and social media coverage of the judgment and wider discussion it prompts – including the question of the cost of ongoing life-sustaining treatment for patients in these cases.

1. The legal context of the decision in Re YD

Some commentators were surprised by the judgment that it was in YD’s best interests to continue to receive clinically assisted nutrition and hydration. I was not. It is regularly the case that judges take very seriously the patient’s religious and spiritual values. Having watched the proceedings, I did not find the judgment entirely unexpected – especially given the final position taken by the Official Solicitor representing YD, who argued that it was in his best interests for clinically assisted nutrition and hydration to continue. Judges typically pay particularly close attention to the arguments raised by the Official Solicitor.

In my view, this was a ‘finely balanced’ case. On the one hand, the medical evidence advanced in favour of withdrawing treatment (i.e. that YD would never recover consciousness) was compelling. On the other hand, those who knew YD well provided strong and consistent evidence that he would want to be kept alive even without what medical science understands by ‘consciousness’. The question of whether or not the available treatment is in YD’s best interests really depends on the weight given to his values and beliefs as they apply to this situation – especially as there is not much evidence that he currently feels pain or is suffering particularly, which might have weighed in the balance against continuing treatment.

Although the evidence was that YD would want a ‘chance to heal’, the medical consensus was that continuing to provide him with clinically assisted nutrition and hydration would not actually provide this opportunity. From that perspective it was not in his best interests for this treatment to continue. But I recognise that the “chance to heal” (or the wish to “die trying to live”, as Sudiksha Thirumalesh put it in a related context) can be a very important value, and that where continued treatment is on offer (as it was here), capacitous patients do frequently chose it, even when doctors may doubt that it is in their best interests to do so (although in those cases perhaps the treatment or outcomes are rather different).

Regardless of the outcome, I felt that best interests principles were carefully explored both in the hearing and in the judgment – as is the hallmark of almost all CoP hearings I’ve observed. I certainly agree with many others who’ve published commentary on the judgment that great care was taken to ascertain, and to respect, the patient’s own perspective. As one commentator wrote (responding to Joshua Rosenberg’s summary of the judgment):

So, I do not share the view expressed by Rosalind English (in her blog post for the UK Human Rights Blog) that the judgment in this case was “a surprising and unusual decision”. She contrasts it with the outcome in Airdale v Bland [1993] 1 All ER 821 – the landmark case about Tony Bland, the young football fan left in a permanent vegetative state after the Hillsborough disaster. The decision in Bland was to withdraw clinically assisted nutrition and hydration. But these sorts of decisions are very fact-specific. In Bland, there was no evidence at all about what the young man at the centre of the case would have wanted for himself. As that judgment records: “At no time before the disaster did Mr Bland give any indication of his wishes should he find himself in such a condition. It is not a topic most adolescents address”.

What the House of Lords (now the Supreme Court) considers, at length, in the Bland judgment is how to balance “sanctity of life” against treatment withdrawal when both family and clinicians believe that discontinuing life-sustaining treatment is in the patient’s best interests, and when the patient’s wishes are not known. What the Re YD judgment considers is how to balance “sanctity of life” against treatment withdrawal when clinicians believe that discontinuing life-sustaining is in the patient’s best interests, but his family and friends do not, and when (unlike Bland) there is consistent and strong evidence of the patient’s own wishes, which are that he would want life-sustaining treatment to be continued. And of course, there is also more than three decades of case law between Bland and Re YD – and some of those cases have resulted in judicial decisions to continue treatment. It’s not obvious to me why Rosalind English would conclude that the decision about YD raises challenges which would require “a root and branch review of the “best interests” test”. The Court of Protection frequently makes decisions which give great weight to the patient’s own values, wishes, feelings and beliefs: it is making decisions on behalf of patients who cannot decide for themselves, and the court chooses between available options paying particular attention to what the person themselves would choose if they had capacity so to do.

Of course, the Court of Protection cannot compel doctors to provide treatment contrary to their clinical judgment – any more than a capacitous patient can compel a doctor to provide clinically inappropriate treatment. Nor can it compel health or social services to provide any other service that is simply not on offer for any reason, including cost considerations – that takes a judicial review. But in this case the continuation of treatment was an available option. There was no suggestion that doctors (or other health care professionals) would refuse to provide formula for the feed or decline to replace the feeding tube if it became detached. This is different from some other cases where doctors are clear that a particular treatment is not being offered to the patient – like the tracheostomy, which was not an available option for the ventilated patient in a different case (Balancing patient welfare and procedural fairness: Withdrawal of ventilation before Hayden J)

The role of the CoP is quite properly to make decisions between available options (whether that is life-sustaining treatment or anything else, e.g. where P should live). Given that clinically assisted nutrition and hydration was an available option in this case, the question before the judge was whether or not it was in P’s best interests to receive it – and given the particular facts of this case (including that he would have wanted it, and his partners’ devotion to him, and that he probably isn’t in pain) she decided that it was.

The fact that his wish to receive continued treatment was based on unusual spiritual beliefs (rather than, say, an established religion) does not change the seriousness with which he himself held them,or the weight that the court should attribute to them in considering his best interests – a point eloquently made by Katie Gollop KC representing YD via the Official Solicitor.

Strong spiritual beliefs have been seriously considered in multiple Court of Protection hearings about life-sustaining treatment and given significant weight alongside other factors such as the burdens of treatment for the individual in their particular circumstances. Cases are always fact-specific – and there seems also to be a diversity of judicial approaches to balancing the various factors involved.

Sometimes judges make the decision to withdraw life-sustaining treatment in the patients’ best interests, even when there is strong evidence that they would have wanted it continued. For example, the published judgment by Hayden J in Northern Care Alliance NHS Foundation Trust v KT & Ors [2023] EWCOP 46 concerns a Pentacostalist Christian pastor whose family were firmly of the view that “his faith was such that he would want his life to be sustained for as long as possible, in whatever circumstances and whatever the challenges” (§3). Having heard from family and friends Hayden J was clear that KT was “a man who lived his life by the Pentecostal sword and most likely would have wanted to die by that same sword i.e., in accordance with his Pentecostal beliefs.” (§31) and stated “I have found that KT would have wanted continued life-sustaining treatment, even in the face of a coma with a terminal diagnosis of chronic kidney disease stage 5.” (§32). Nevertheless, Hayden ruled that life-sustaining treatment should be stopped.

On the other hand, there are cases where judges have found continuing life-sustaining treatment to be in a person’s best interests[2], due to the strength of their religious conviction. McKendrick J recently found it was in the best interests of a devout Muslim man whose “Islamic beliefs would be likely (highly likely) to influence his own decision whether or not to continue with the NG tube if he had capacity”. Taking into account the patient’s view (as reported by the family) that “PK would view it as wrong and contrary to Islam for me to authorise the removal of his NG tube”, the judge authorised continued treatment (University College London Hospitals NHS Foundation Trust v PK & Anor [2025] EWCOP 17 (T3))

In sum, patients’ values, wishes, feelings and beliefs (including any religious/spiritual beliefs) are factored into best interests decision-making, alongside factors such as their current experience (if any), the nature of medical interventions they are subject to, and the patient’s specific diagnosis and prognosis. Given the array of factors considered in best interests decision making the judgment in this case (with such strong evidence about the strength and relevance of P’s spiritual beliefs) it is not an entirely surprising outcome.

2. Beyond the courtroom

Decisions to continue clinically assisted nutrition and hydration (and many other life-sustaining interventions) are being made outside the court all the time. Many people are maintained indefinitely in prolonged disorders of consciousness, long past the time at which clinicians (or indeed family) believe they will ever recover full consciousness. Nobody knows how many such patients there are in the community (nursing/care homes and homes) across England and Wales (it’s not properly audited) but it is estimated to be tens of thousands (4,000–16,000 patients in vegetative states, with three times as many in minimally conscious states).

In the vast majority of these cases, the clinical decision to continue life-sustaining treatment has never been considered by a judge. Sometimes treatment is continued by default simply because nobody has considered doing otherwise (irrespective of the patient’s own values and beliefs) (see Kitzinger J & Kitzinger C. (2017) Why futile and unwanted treatment continues for some PVS patients (and what to do about it) International Journal of Mental Health and Capacity Law. pp129-143).

But sometimes there are positive best interests decisions to continue treatment. In many settings where I do training and/or support families of patients in prolonged disorders of consciousness, I am aware of decisions made following best interests meetings to continue clinically assisted nutrition and hydration for patients with diagnoses/prognoses similar to YD’s. The patient’s religious or spiritual beliefs often play a part in these decisions and usually carry more weight – and results in more consensus decision-making – than do other common reports from family members which sound superficially very similar, such as ‘he’s a fighter’, ‘he’d want a chance’, ‘he needs more time to heal’. This is because religious/spiritual views often meet the Grainger criteria[3].

As a society, we do give significant importance to spiritual and religious belief, and to people’s freedom to practice their religion. So, it seems right that this is supported (where possible) once a person loses the capacity to act in accordance with their own religious/spiritual views and/or to make their own religious/spiritual choices. (Although in my experience, statements from family and friends about the patient’s religious beliefs, and about the inferences that can be drawn from this, are not necessarily interrogated in the typical healthcare setting with the same rigour as in a court hearing) [4]

So, although some commentators have identified the outcome in the YD case as “unusual” in continuing life-support for a vegetative patient, in fact it is typical of many decisions currently made outside the courtroom in similar circumstances, in care homes and nursing homes across the UK.

3. News media and social media coverage of the judgment

What was unusual about this case was the amount of public discussion it generated.

Unlike most Court of Protection hearings, which – although open to journalists and to the general public – conclude without any public discussion of the decisions made (this includes life-sustaining treatment cases), this case has attracted quite a lot of media attention and social media comment.

Public discussion was supported by the publication of the judgment (not all judgments are published) and by reporting of it by the eminent legal commentator, Joshua Rosenberg (“Patient must be kept alive: Hospital refused permission to withdraw nutrition and hydration).

It also seems that its ‘news value’ was heightened by the use of evidence from a spiritual medium and by the opportunity, from some media, for a rather prurient focus on the fact that YD has two partners.

There were significant differences between the judgment and the public discussion that ensued in relation to three issues, as I discuss below:

  • 3.1 spiritual beliefs,
  • 3.2 the fact that YD has two partners (previously unaware of each other’s existence),
  • 3.3 the cost of maintaining people in permanent vegetative states.

3.1 Spiritual belief

The court treated YD’s spiritual beliefs with the same respect as it would have accorded to more formal or conventional religious beliefs. The Official Solicitor presented a strong and coherent argument (in relation to the Grainger criteria, see endnote 3) about why this should be the case, and her approach is mirrored in the published judgment. The evidential status of statements from the medium was carefully discussed in court (see footnote 4 of my original blog about the hearing: “A patient with “unusual” spiritual beliefs: Is withdrawing a feeding tube in his best interests?”.).

Public commentary – especially on social media -sometimes supports this approach

But social media also includes incredulous comments that YD’s beliefs (described as ‘hocus pocus’) were taken seriously in court. ‘Please tell me this is a joke!” wrote one commentator. Another thought the court was being guided from “beyond the veil”.

“It appears the legal and medical decision-making in the Court of Protection is now being guided by someone from “the other side”, via a medium!. […] In effect, the decision to continue life-sustaining treatment seems to have come via counsel from beyond the veil” [Zain de Ville, response to Joshua Rozenberg] [5]

3.2 Two partners

The court treated both YD’s partners (he was married to neither) as key witnesses and also heard at length from a close friend of YD. The words “family” and “next of kin” are not used in the Mental Capacity Act 2005: rather the court must consult (in addition to deputies, attorneys and anyone else named by the patient as someone to be consulted) “anyone engaged in caring for the person or interested in his welfare” (§7 (b)).

There’s no hierarchy about who should be consulted or the a priori weight to be given to their evidence. I’ve been personally involved in supporting best interests decision-making processes where valuable information about the protected parties’ values and beliefs has come from a neighbour and a hairdresser for example; and another where the patient’s ex-wife turned out to have more relevant and compelling information than his current wife. My experience is that decision-makers (at least in the context of a court case) examine evidence about the patient’s prior values without making any prior assumptions based on the evidence-providers ‘next of kin’ status. This case has been identified by Alex Ruck Keene as offering “a case study in the navigation of complex relationships going beyond ‘next of kin’ to identify those who were expert in the person”.

The fact that the two women did not know of each other’s existence prior to YD’s injury was highlighted in the legal proceedings only in so far as it was valuable as independent triangulation of evidence. The judgment notes that it was “striking” that even though the two partners were completely unaware of each other’s existence until YD’s injury “they were each able to independently confirm many common features about YD’s wishes and beliefs.” (§83).

There was no discussion of the situation in terms of deceit or secrecy in the court or in the judgment. The only hint of this by the women themselves during the hearing was when one of the partners said YD never wanted her to visit him at times when parking charges where operational outside his house: in retrospect she recognises that this meant it was a safe time for him to see his other partner: “I think me and [the other partner] took it in turns to be there”. In the judgment the judge simply records that his family and friends recognise that YD’s relationships were “compartmentalised” (§74).

Public commentary, however, put a rather different spin on this. Multiple newspaper headlines referred to “secret lovers” to describe the two partners e.g. “Comatose man’s secret lovers join forces to keep him alive” (Daily Telegraph 13/8/25) and “Comatose man’s secret lovers join forces to keep him alive – after only finding out about each other when he suffered a brain bleed (Mailonline 14/8/25). The story was picked up by outlets such as the Daily Star (which describes itself as “News with a Wink”): “Comatose man’s secret lovers try to keep him alive despite finding out his cheating ways” (14th August 2025, Daily Star online).

These headlines (and text referring to his “double life” and describing the patient as an “unfaithful lover”) led to salacious comments on social media and ‘below the line’ including speculation about the two women’s relationship and ’jokes’ about sexual prowess, infidelity and women spurned (e.g., see comments below Daily Mailonline).

The treatment of this case chimes with another genre of stories where sudden critical illness exposes illicit relationships -see stories (in the last couple of months) such as: “I uncovered my husband’s dirty secret while he was in a coma” (Metro, 26/7/25)) https://metro.co.uk/2025/07/26/uncovered-husbands-dirty-secret-a-coma-2-23714693/ and “Don’t Tell the Bride: Star […] recalls how she uncovered her husband’s affair while he was in a COMA (MailonLine, 19th Aug 2025, https://www.dailymail.co.uk/femail/article-10476687/Dont-Tell-Bride-star-uncovered-husbands-affair-COMA.html).

3.3 The cost of caring for patients in a permanent vegetative state

The third striking difference between the judgment and public discussion of it was the attention given to the resources needed to care for these patients.

The published judgment considers operational factors relating to treatment decisions for patients in prolonged disorders of consciousness (such as the role of the ICB and when patients should move from specialist neuro-rehabilitation units to care homes) (§88-92) and this was highlighted as significant by the legal firm representing the Trust. It raises crucial issues for those involved in designing and delivering care – but seemed to be of little wider public interest: neither the mass media, not general social media discussions picked up on this point.

By contrast, the issue of cost per se of keeping people alive in long term vegetative states DID feature in public discussion –in spite of the fact that this was NOT mentioned in the judgment. In comments below the Mailonline article, for example, readers suggested that if the two women want YD kept alive then they should pay for it, and commented on the “pointless waste” of “taxpayers’” money at huge cost to an over-stretched NHS.

On a different platform, in response to Joshua Rozenberg’s blog, another commentator wrote very critically about YD’s (and his partners’) wishes and the person-centered approach of the court. This commentator sharply reframed the case in terms of being self-centered and highlighted inequalities:

“I wonder if the two partners are doing the heavy nursing care or are simply sitting by the bed chanting?! And who is paying the bill? As a full-time carer, working full time, of my elderly bed bound father and unable to get help, I find the selfishness in this case difficult to take. This man receives care whilst others do without.” (David Holroyd response to Joshua Rozenberg blog)

This issue was also brought to the fore by Rosalind English who points to “the profound and continuing financial burden on the public purse for prolonging unconscious life at all costs” and says:

“…one day it will occur to cancer patients being denied treatment or sufferers from severe cardiac conditions on never ending waiting lists for surgery that perhaps public money should be spent on them, rather than keeping PVS patients alive for years if not decades.” https://ukhumanrightsblog.com/2025/08/13/patient-in-permanent-vegetative-state-to-be-kept-alive-court-of-protection/]

Alex Ruck Keene picked up on this point, suggesting that this issue needs to be faced head on: “Just as in the case of admission and treatment in ICU, we tend to seek to avoid hard discussions about cost-benefit analysis of the sort that are now familiar in the context, say, of cancer drugs. For my part, I would suggest that there is an increasing need for work to be done to establish a framework within discussions about such costs can be considered in a transparent fashion and in a way which resolves the uncertainty justly.” He argues that, without this, there is the risk of concerns about costs leading “no doubt inadvertently” to distortion of the clinical framing of the person’s condition and of the treatment; or “distortion of best interests decision making (for instance, by asking whether the person would wish to be continue to be kept alive at the cost of “diverting” resources from others).”

The financial cost of keeping patients alive in prolonged disorders of consciousness is virtually never raised in court judgments. That’s because the court is focused narrowly on what is in the best interests of the particular patient at the centre of the case. If clinicians are willing to offer a range of treatments – including clinically assisted nutrition and hydration and all the skilled nursing and allied healthcare input that’s needed to keep these patients alive – then the court’s role is limited to making a decision as to whether or not taking up the treatment on offer is in the protected party’s best interests. (Conversely, if clinicians decline to offer a particular treatment, there’s nothing the court can do). But despite the absence of any consideration of cost in the judgment itself, this case, more than any other I’ve watched, seems to have focussed minds on this question of cost in sustaining patients in prolonged disorders of consciousness. This may perhaps be because of the unusual nature of YD’s beliefs, and the fact they were not part of a traditional religion, but I think the points raised are important, in this and similar cases. It’s right, in my view that the cost of treatment was NOT raised in the judgment: this should not be part of any best interests discussion for individuals. But there is clearly some legitimate public interest in what treatments should be on offer to patients, and in questions of resources and equity.

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 X and BlueSky as @JennyKitzinger 

Footnotes

[1] It’s very useful when judgments highlight operational issues that have been revealed during the course of the hearing – even if this has not been fully investigated as part of the hearing and no specific conclusion can be drawn or recommendations made. For the last ten years or so I’ve repeatedly heard discussion in court hearings of the key role that should be (and sometimes is not) played by the organisations that commission care (now ICBs and before that Clinical Commissioning Groups [CCGs]). Concerns have particularly been raised in relation to delays in best interests decision-making – which was not the issue in this case. However, concerns aired in the courtroom do not always make it into the published judgment. For example, we know, from observing the hearing, that there were clear operational issues in addressing the best interests of ‘PC’ (a woman in her early 30s who had catastrophic brain injuries from a cardiac arrest) which prompted the Official Solicitor to call for a review of both the hospital’s and the ICB’s procedures and protocols. Along with Celia Kitzinger, who also observed the hearing, we recorded part of this discussion in our blog: “Family tragedy and institutional delay in best interests decisions about life-prolonging treatment”. But in the judgment the judge, Mr Justice Cusworth, included only one sentence which acknowledged that these concerns had been raised and evidence filed, but simply stated that this “had not been the subject of dedicated submissions before me. My focus in this judgment is solely an assessment of PC’s best interests”, NHS North Central London Integrated Care Board v PC & Ors [2024] EWCOP 31 (T3). By contrast, in a case I observed back in 2016 (and in which we’d supported the family), the judge, Mr Justice Hayden, highlighted the issue of delay in the judgment (with its own sub-heading) and commented that although he had “not been required to investigate” the problem “It needs to be stated that the avoidance of delay in medical treatment cases is an important imperative…” and he then went on to make a very strong statement about this principle (§13) (Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32). This part of the written judgment was very important for the patient’s family– (who felt their loved one’s dignity had been compromised and that they themselves had been put through years of distress and frustration). It was also helpful when other families came to us for assistance in trying to urge other CCGs at the time to take responsibility for helping progress cases about life-sustaining treatment in a timely manner. We described the role of the CCG, the operational challenges and delays in this case in detail here: Causes and consequences of delays in treatment-withdrawal from PVS patients: a case study of Cumbria NHS Clinical Commissioning Group v Miss S and Ors [2016] EWCOP 32

[2] In some cases, judges considered ongoing life-sustaining treatment to be in a patient’s best interests even though the family provided evidence that the person wouldn’t want this, e.g. W v M [2011] EWHC 2443 (COP)

[3] This is a reference to the case of Grainger plc v Nicholson [2010] IRLR 4 (EAT) To meet these criteria a belief (1) must be genuinely held; (2) It must be a belief and not an opinion or viewpoint based on the present state of information available (3) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (4) It must attain a certain level of cogency, seriousness, cohesion and importance and (5) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others. Beliefs in veganism, Scottish independence, gender critical beliefs and more have all been held to be philosophical beliefs protected under the Equality Act 2010, on the principles set out in the Grainger case.

[4] In one hearing I observed, the patient’s diagnosis was very similar to YD’s and evidence from the family echoed that in the YD case in many respects – P was “a Muslim who believed only God could choose a time of dying”; he was reported to have said “when your time is up, your time is up, until then you don’t give up, no matter what’”; and his family characterised him as “a man who can and would want, to fight on”. (“He deserves a chance”? Continuities and shifts in decision-making about life-sustaining treatment). However, the OS took the position that clinically assisted nutrition and hydration was NOT in this patient’s best interests and argued that “[t]he whole basis of which the family would want him to continue [to receive this treatment] is based on the possibility of a miraculous event going against all the medical evidence, that he might improve or recover”. The judge (Arbuthnot J) acknowledged this man’s religious faith but taking all factors into account, ruled nonetheless that in was in his best interests for clinically assisted nutrition and hydration to be discontinued. (The judgment was subsequently published as Mid Yorkshire Hospitals NHS Trust v NB [2022] EWHC 3682 (Fam).  In another case, this time  before Theis J (the judge in the case I’m reporting on in this blog), the judge found  that withdrawal of ventilation and CANH was in the best interests of a 27-year-old patient who was in a PVS following a car accident, in ICU and ventilator-dependent, despite withdrawal of treatment being contrary to the Christian beliefs he had been brought up with (Kings College Hospital NHS Foundation Trust v X [2023] EWCOP 34). In neither of these cases did the judges conclude that P’s religious faith would have meant they’d definitely have wanted life-sustaining treatment continued. Court of Protection hearings pay attention to spiritual/religious faith but involve interrogation of it – and how any such beliefs might apply to their current situation.

[5] I wonder if, in spite of the court’s careful approach here (the messages were NOT treated as evidence from YD), the use of messages from this medium in court may be misunderstood in future, or even used to promote the idea that spiritual mediums can provide a direct line to comatose patients and that this has somehow been endorsed by a judge. Some mediums already promote their services to families of patients in prolonged disorders of consciousness, or other conditions such as dementia. (eg. https://www.lightbloomhealing.com/coma-communication; https://www.grief2growth.com/can-mediums-reach-people-with-dementia-with-stephanie-banks/)

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

By Sandra Preston, 18 August 2025

On 13 August 2025 I went to First Avenue House (the London headquarters of the Court of Protection)  for the first time as an observer – rather than as the relative of a Protected Party (as described my blog post here).  I had chosen to do so to gain a greater insight into Court of Protection proceedings and in order to support the Open Justice  COP Project.

I navigated my way through security without incident, having learned on a previous occasion that my mirrored lipstick case was considered a hazardous item – I’d had to hand it in and remember to collect it (having been given a numbered receipt() on my way out – so I’d left it at home this time round. 

The building houses both the Family Court and the Court of Protection.  The Court of Protection  is on the fifth floor.  I went up in the lift,  and on exiting, you have to let the counter clerk know you are there and the purpose of your visit, and fill in an attendance form..  Armed with a list of the hearings I was most interested in observing, we identified one that the clerk assured me would be going ahead at midday.  I had to sign in with my name and address (home or work address or email address is fine) and in return was given a copy of the Transparency Order (TO) to read in the waiting area. 

Some confusion on the part of the clerk meant I was given the TO for a different  hearing, which it transpired was happening remotely, so I sat in the waiting area long after midday.  It’s not a bad place to sit though as you pick up on lots of interesting discussions between the various legal teams.  Unfortunately, by the time the mistake was realised and I was given the right document the hearing had started so it was too late to join.  I agreed to return at 2pm to observe a hearing before HHJ Beckley (COP 14219478) – and then everything went really smoothly as the counter clerk seemed keen to make amends for the earlier confusion.

After signing in (again),  reading the Transparency Order and waiting a short while in the waiting area, someone came over to me I was asked to go into Court 23 and to take a seat at the back of the court.  The clerk told me the judge wanted to know why I was there, so I said I was observing on behalf of the OJCOP project.  I got a few wary looks from the parties as they filed into court, but the judge explained that I was observing on behalf of a well-known group of bloggers  – which prompted the applicant to enquire whether this meant I was from the media; I reassured him I was not.  Judge Beckley asked if I wanted to see the Position Statements or whether an Introductory Statement would suffice.  I opted for the latter as it would have been difficult and time-consuming to read the Position Statements on my mobile phone.

His Honour Judge Beckley said the case was to decide whether to discharge an 86 year old woman from hospital to a nursing home or to her son’s home as per his wishes. She was suffering from vascular dementia, stage 3 kidney disease, stage 2 diabetes, hyperthyroidism and required a hoist to move between armchair and bed.  Nobody disputed the finding that she lacked capacity to decide for herself where to live and receive care. 

The applicant was her only child and next-of-kin.  He was accompanied by a representative who was invited to join him at the front of the court so that she could speak on his behalf. The protected party was not in court. She was first respondent, and was represented by the Official Solicitor as Litigation Friend.  The Local Authority was the second respondent.  The applicant and respondents disagreed over where P should live so this was a contested hearing. 

The applicant was seeking an order that it was in his mother’s best interests  either stay in hospital or be discharged to live at his home rather than to a nursing home.  He wanted her to stay in hospital until he had a clearer idea of what could be done to facilitate a move to his home.  She had been in hospital since January 2025 and was familiar with her environment, which he felt was important for someone with vascular dementia. 

The Local Authority disagreed, saying it was not in her best interests to stay in hospital given she was not receiving therapeutic or rehabilitative treatment.  The work needed to adapt his property, for which permission had yet to be sought from the council, made it too far removed an option to keep her in hospital.  Nor did they think it a workable option for him to provide the level of care needed, which was significantly greater than before her hospital admission.  They argued that living in a more congenial, residential environment with the company of others and where she might be allowed to keep her cat, could add to her well-being. 

The OS invited the court to rule out a return home.  It would compromise P’s privacy and dignity, and the size and layout of the property would not support live-in carers. They stressed that it did not need to be a once-and-for-all decision.  If P’s condition improved and her care needs reduced, the court could look at a future return home.  If the Local Authority was not willing to make funds available, a judicial review would be needed; it would not be in her best interests to remain in hospital until then.

The judge decided that P should be discharged from hospital as soon as possible to a nursing home as her care needs were greater than a care home could provide.  He set the next hearing for 3 October 2025.  The applicant’s representative would be on holiday on that date, but the Judge refused the applicant’s attempts to delay on that basis.  He said the matter could be dealt with in one hour rather than two, given today’s contested hearing had lasted only an hour.

The applicant opposed the Local Authority’s recommended nursing home and asked if he could recommend one himself.  The Judge asked him to work with the Local Authority to agree upon a suitable nursing home and that if a consensual option were identified ahead of 3 October (there was to be a Round Table Meeting in the week beginning 15 September) the hearing could be vacated.  If the applicant wanted to vary the date of the 3 October hearing he would need to do so via a COP9. 

The applicant did not hold a Lasting Power of Attorney (LPA) for P, and his application for deputyship had previously been turned down by another judge (DJ Clarke).  HHJ Beckley said that P had chosen not to make an LPA and that this was a capacitous decision.  It was not clear to me whether this meant that because she had actively chosen not to make an LPA when she had the capacity to do so, it prevented him from applying for deputyship, or whether there was more to her decision not to make an LPA which had resulted in the previous judge’s rejection of his application for deputyship.   

The applicant expressed concerns that the Local Authority had cut him out of decision-making and consultations and discussions had taken place without asking him for his views.  He had asked for copies of documents but they were held in individual departmental files rather than one central file.  The lack of disclosure led him to feel he’d not been able to put his concerns across and he described the flow of information as poor.  I had some sympathy for him given our own experience (with a different Local Authority). 

Reflections

Imposter syndrome almost stopped me from going to observe, but I’m glad I didn’t let it get the better of me.   My main concerns – bumping into one of the lawyers involved in our own case, or being exposed as a fraud for having previously been at First Avenue House as the relative of a protected party – were unfounded.  The court staff were really helpful, despite the initial confusion over which case I was there to observe, and it helped that Judge Beckley was clearly familiar with the OJCOP. 

The waiting area gets busy and you hear lots of tannoy announcements asking individuals to report to particular courtrooms.  Given the confusion at the start of the day, I wondered how I would know when and where to go or whether I would miss another opportunity.  More unfounded concerns – when it is time for you to enter the courtroom, the court clerk will collect you from the waiting area and escort you to the courtroom. 

I would recommend taking a list of the day’s hearings with you if you visit First Avenue House (the daily cause list is available online here: https://www.gov.uk/government/publications/court-of-protection-daily-hearing-list ).  This helped me to work out with the counter staff which cases were going ahead and which had been vacated or were happening remotely.  It was definitely good to have a back-up plan.  I would also suggest you take a book to read (and water, and a snack) as you can spend quite a lot of time sitting in the waiting area feeling a bit spare, surrounded by fraught relatives and harassed legal teams.

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.

Sentencing in contempt proceedings: Punishment and coercion in a case before Lieven J

By Celia Kitzinger, 14th August 2025

A mother who refused to obey court orders was sentenced to 28 days in prison, and her pre-teenage daughter was to be taken into foster care, in a case I watched in the Family Court on 11th August 2025.

The judge, Mrs Justice Lieven, ordered the local authority to send social workers immediately to the mother’s home to collect the child –  and as soon as the child had been removed, the police would arrest the mother and take her to prison.

The judge made it absolutely clear that she did not want the mother to go to prison.  She said she was in an “invidious position” because “I have the Court of Appeal telling me I have to send this lady to prison, effectively.  I have a mother who I suspect has engineered a situation where there is nobody to look after the child, and a local authority who has effectively washed their hands of the situation”. 

I’ll describe what happened, and why, and reflect on its implications for other committal cases in the Court of Protection.

Background

The parents of the child at the centre of this case are Slovakian.  They separated in 2017 and shortly afterwards Anna Benciková and her daughter relocated to England without the father’s knowledge or consent, where they have remained ever since.  The father, Pavel Koco, remains in Slovakia[1].

Following a protracted history of Hague Convention and Children Act 1989 litigation initiated by the father, first to try to get the child returned and then to get rights of access (both unsuccessful), a fact-finding hearing took place (in August 2021) before HHJ Lloyd-Jones – who did not find the mother’s allegations of domestic abuse to have been proved (on the balance of probability). Her application for permission to appeal that judgment was refused. 

Following a final welfare hearing, the judge made a “live with” order to the mother and refused her application to terminate the father’s parental responsibility. In advance of any court consideration as to whether direct communication or contact between the child and her father was in her best interests, the judge further ordered the mother to:

(1) provide a written welfare update to the father via his solicitors on a monthly basis;

(2) allow the Guardian to meet with the child to carry out “Storyboard”/Life-story work – a therapeutic child-centered intervention led by a Guardian or social worker to help the child know the identity of her father and understand something of her life story and personal identity. 

These are the court orders the mother has not obeyed, and that is why she is in contempt of court and now faces a prison sentence.

The mother is utterly opposed to complying with these orders and says that doing so would cause harm to her daughter. She says the father has told “repeated lies” and that he is “willing to destroy a child’s life for money”.  She says he treats his own child as “just another victim in his life long criminal career” (he has served a term of imprisonment in Slovakia for fraud).  She says: “I do not want my daughter to become comfortable with compulsive lying, destroying people’s lives and leading a criminal life”.

She has on three occasions (June 2024, August 2024 and March 2025) been found to be in contempt of court (and twice fined) for not obeying these orders.  On the most recent (third) occasion, the judge adjourned sentencing to give the mother one final opportunity to comply.  She said:

“Only because of [your daughter] am I going to do this. I am going to adjourn sentence for a month. In the meanwhile, I will direct that there will be life story work between the Guardian and [your daughter], and I will request the Guardian – but not direct her – to explain to you what life story work is. If having had it explained to you, you still persist in ignoring court orders, I will consider how I will sentence you.  Taking into account the fines don’t work because you don’t pay them in full, and you appear to think it is right to ignore court orders, this is your very last chance.”

When the matter was listed again for sentencing on 6th May 2025, the mother had failed (again) to comply with the Court’s orders.  There had been no “life story work” for the child and she’d not taken the child to see the Guardian.

At the sentencing hearing, the judge, Henke J, decided not to impose any sanction.  The judge said she had concluded that imprisonment would be pointless because “sending you to prison is not going to change your mind”.  A prison sentence (suspended or immediate) would, the judge said, “have no effect on the mother’s attitude or secure future compliance”, and imprisoning her would cause “emotional, psychological and financial” harm to her daughter.

The father then made an application to appeal against the judge’s decision not to imprison the mother. He argued that the judge failed to engage with the core purpose of contempt proceedings, namely to uphold the authority and effective functioning of the court. 

It was heard by the Court of Appeal on 29th July 2025 and judgment was handed down the next day.  You can read the full judgment here: Re B (A child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048).

The hearing I watched on 11th August 2025, back in the Family Court, was a consequence of what the Court of Appeal had decided – so the decision of the Court of Appeal is essential background to understanding why Mrs Justice Lieven felt she had no option but to make the decision she did.

Court of Appeal

The Court of Appeal found that the approach taken by Henke J in the Family Court was wrong in principle.  One legal commentator[2] summarises the Court of Appeal’s decision as follows: “A court must mark serious contempts with a proportionate penalty, even where it doubts that compliance will follow – otherwise the authority of court orders collapses. The case crystallises an important doctrinal point: anticipated non-compliance is not a lawful reason to withhold punishment for proven contempt”. 

The judges found that Henke J’s conclusion that “sending you to prison would have no effect” (based on what the mother herself had said) was wrong: until a prison sentence is actually imposed, the judge cannot know whether or not it will coerce compliance.  Even if it does not result in compliance:

“It cannot be the case that a parent can repeatedly refuse to comply with orders made in the best interests of their child, knowing that a judge may well in those circumstances dismiss the committal proceedings as serving no purpose. To do so would undermine the authority of the court and have significant implications for other cases.  Punishment for breach of court orders serves as an essential aspect of upholding judicial authority as well as ensuring compliance”. (§40 (Re B (A child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048)

The judgment continues:  “… the judge was wrong in imposing no sanction on the mother and in those circumstances the matter will be remitted to the High Court for reconsideration of sentence” (§41 (§40 (Re B (A child) (Sentencing in contempt proceedings) [2025] EWCA Civ 1048)

So, the case was sent back for re-sentencing, and that’s what I was watching in the Family court.

The hearing

I don’t usually watch hearings in the Family Court – unlike the Court of Protection, there are rules restricting who can watch these hearings and as I’m not an accredited member of the press, or a lawyer, I have no right to attend them.  This hearing was different though.  As a committal hearing, it was listed as “for hearing in open court”. 

The listing caught my attention as I was scrolling through looking for Court of Protection hearings because I thought I recognised the names of the two people in the list – and a quick google search confirmed I was right.  They’d featured in a “Case Commentary” (see footnote 2) which I’d read because, although it related to Family proceedings, I figured the Court of Appeal judgment on committals would be relevant to the Court of Protection too. 

The “Case Commentary” had emphasised the Court of Appeal’s view that (in the words of the commentator)  “punishment cannot be jettisoned simply because coercion may fail”.  It listed as a “Key Takeaway” of the judgment: “Courts must not abdicate the punitive element of contempt jurisdiction merely because the contemnor predicts (or even demonstrates) continued defiance”.  There are often cases of “continued defiance” in the Court of Protection, so I wanted to know what would happen when this case was sent back to the High Court.

When I joined the remote platform, I realised that both parents were attending remotely, and there was also an interpreter (I think for the father, but she was asked also to interpret for the mother).  The judge was in the physical courtroom (Court 46 at the Royal Courts of Justice), and so were two lawyers, who I eventually figured out (there being no introduction) were counsel for the father, and a lawyer representing the child’s Guardian.  The mother was a litigant in person – although she’s entitled to legal aid, she had not been happy with lawyers who had previously represented her and chose to represent herself at this hearing. 

I later learnt (when the judge handed down her decision at the end of the hearing) that the case had been before Mrs Justice Lieven a week earlier, on 4th August 2025, and that the judge had imposed a 28-day suspended prison sentence.  It was suspended in order to give the mother “yet another opportunity to comply with the orders and take the child to meet the Guardian. I fixed an appointment last Wednesday for the mother to do that. However, yet again, the mother failed to comply”.[3] So now, with “yet another” last opportunity for compliance having gone by, the case was back in court.  As you’ll see, there were a couple more “last opportunities” for compliance offered by the judge at the eleventh hour in the court hearing. The mother did not avail herself of them.

The hearing began at 11.13 (I was told the judge had several hearings all scheduled for 10.30am and had chosen another one to hear first).  This was the opening exchange (Note:  the mother spoke in English):

Judge:              Why are you not here physically in court.

Mother:          I do apologise. I am sorry I couldn’t make it. I do apologise. My father is not here to be with [my daughter] and there is nobody I could leave her with.

Judge:              Do you have anyone to look after her?

Mother:          No.

Judge:              Where’s your father gone?

Mother:          Slovakia

Judge:              Does he know you’re going to prison today?

Mother:          (pause) He needed to go back because of the doctor and he is under stress and couldn’t be here.  I have informed him about my suspended sentence and the hearing today.

Judge:              Have you taken [your child] to the Guardian?

Mother:          No.

Judge:              You have acted totally irresponsibly. You have left me with no choice but to put you in prison and put your child into care. Whereas if you had acted responsibly,  none of this would have happened. This is 100% your fault.  You have absolutely deliberately harmed your child. You have left me no choice but to send your child to strangers today by your irresponsible and selfish behaviour.  Do you understand.

Mother:          (silent)

Judge:              Do you understand?

Mother:          I have good reasons for that.

Judge:             Well other judges have found otherwise and, whatever your reasons, the reality is that your daughter is going to have to go to complete strangers tonight and that is because of your incredibly foolish choices. Let me go to Ms King. What are we going to do?

Ms King represented the child’s Guardian. She said that the LA had previously (in connection with earlier hearings) done a telephone assessment with the mother about what arrangements were in place to care for the child in the event of a prison sentence, and the LA “was satisfied that the maternal grandparents would look after the child”. She added that “The Guardian was always concerned about that because there had been no face-to-face meeting – only telephone”.  The local authority was not in court.

Judge:             The grandfather has gone back to Slovakia. I’ve no reason to believe the grandmother is here. Where is the Guardian?

King:               She’s in another hearing.

Judge:             I am now feeling I have been put in an invidious situation.  I have the Court of Appeal telling me I have to send this lady to prison, effectively. I have a mother who I suspect has engineered a situation where there is nobody to look after the child and a local authority who has effectively washed their hands of the situation.  If I issue a bench warrant, then the police will go round. They will arrest the mother. They will take the child into emergency protection and then deliver her up to the local authority. Am I right?

King:               Yes.

Judge:             Are you saying I should do that?

King:               I have no instructions.

Judge:             You represent the child. I need to know what you think I should do.

King:               The Guardian recognises that the mother is in contempt of court. If the mother is to go to prison, we say the LA is to go and collect [the child] first – not witness her mother being arrested.

Judge:             Absolutely not.

King:               The only other option is to make an Emergency Protection Order

[…]

Judge:             So, Ms Benciková, can you hear me

Mother:          Yes

Judge:             So, unlike you, I am thinking of the best interests of your child. I do not want police to go round and arrest you and then put [your child] in the back of a police car. I do not think that would be good for [your child] – she’ll remember that for the rest of her life.  I’m going to adjourn until 2.30. I order [the local authority] to attend, and the Guardian, at 2.30. And effectively at 2.30, I’ll  order the LA to go round with an Emergency Protection Order. And you’ll be arrested at 3 o’clock. Or 3.30.  Do you understand?

Mother:          No.

Judge:             Ask the interpreter to say it in Slovakian.

(interpreter speaks)

Mother:          The judge is going to make this order for 3.30?

Judge:             What that means is you have one last chance. The Guardian is in [city] – you can get in the car, or on a bus, and you can go and meet her with [your daughter], or you will go to prison and [your daughter] will go into care with total strangers.  Are you going to take her now or are you going to prison this afternoon and let your daughter go into care? It’s your decision.

Mother:          I don’t….

Judge:             You are acting in as stupid, selfish and self-centered way as any parent who has ever come in front of me.  You must now take responsibility for your own actions.

Mother:          Can I have five minutes.

Judge:             You’ve had YEARS, Ms Benciková. This has been going on for years. I will leave the court and return in five minutes.

When the court resumed, the judge asked “So, what are you going to do?” and the mother replied that she wanted to talk to a solicitor.  The judge said it was “too late, far too late for that”.  It was coming up to midday and the judge said she would adjourn until 2.30pm. On returning to court, she wanted the local authority there “and they have to be ready to take the child into care immediately – they should have been engaged already but we didn’t know the grandfather had gone abroad”.  To the mother she said: “Get ready to go to prison this afternoon. The police will come round and arrest you. And be in no doubt, if you leave the house with [your daughter] we will arrest you somewhere else. For the first time for a long time, will you think of the harm you are causing [your daughter] and try to minimise the harm to her and make it as little painful as possible.”

She double-checked with counsel for the father that he was still seeking committal (yes), and left the courtroom.

When the hearing resumed, shortly before 3pm, a representative of the local authority had joined the link, and so too had the Guardian. The LA reported that an emergency placement had been found for the child until 18th August – and they would find somewhere for her after that date as required.  The Guardian was asked for her view as to what the court should do and confirmed that “it’ll be in [the child’s] best interests to be removed from her mother’s care prior to her mother being taken in to custody”.  The judge moved on to the question of how soon the Guardian could visit the mother: 15th August, she said (i.e. five days later) – but she hadn’t (it seemed) taken into account that the mother would likely be in prison by then.  The judge was focussed on “how in practice is she going to purge her contempt and get herself released? I’m into practicalities here?”.  This took some explaining – I don’t think “purging contempt” is language accessible to most people – and it was agreed that a video-link with the prison would be feasible if the mother wished to provide the updates about her daughter ordered by the court.

Finally, the judge asked if there was anything the mother wanted to say. (The mother spoke in English throughout – using the interpreter to understand what others, especially the judge, was saying.)

Mother:             How long will you put [my daughter] away from me?

Judge :               Well as long as you are in prison. […]  And effectively, Ms Benciková, you have chosen to go to prison, because I have given you every opportunity to comply with the order. Effectively you have chosen to go to prison and chosen to put your child into state care. Even this morning, I gave you another opportunity, but you haven’t taken it. So you will be in prison for 28 days and [your child] will be in foster care for 28 days.

Mother:          Please don’t do this to my child. She, she, she’s innocent. Please don’t do this to my child.

Judge:             Well Ms Benciková, I’m not doing it. You’re doing it. Even this morning-

Mother:          Don’t do this to my child. She is absolutely innocent about anything. She doesn’t know anything about anything. Please, don’t do it. She is innocent, she is a happy healthy child.

Judge:             Well Ms Benciková, you have not helped her AT ALL.  This is entirely 100% YOUR fault. I am forced into a position I do not want to be in and I’m extremely unhappy about it.  But you have given me no choice.  Because even this morning I gave you a choice to go and see the Guardian and you refused to do it. So is there anything else you want to say and then I will make the order.

Mother:          I do not understand when she will be- She will be taken away from me today or when is it going to be?

Judge:             Yes. It will be in about 55 minutes.

Mother:          In 45 mins you’re going to take her away from me (distressed, hyperventilating)

Judge:             Yes.

Mother:          Please, please, please don’t do this to her (hyperventilating). Please, she-

Judge:              Well, Ms Benciková, will you take her to see the Guardian tomorrow morning? (yet another, final, “last opportunity”)

Mother:          (hyperventilating) Please give me more time.

Judge:             No. No more time. Will you take her to see the Guardian tomorrow morning

Mother:          Please, please!

Judge:             No, I’m sorry. You can’t keep begging me but not agreeing. That’s the point of the court.

Mother:          Sorry I couldn’t hear this – can you translate somebody to me.

Judge:             Translator, can you ask her again whether she will take the child to see the Guardian tomorrow morning.

Mother:          It’s going to be harmful for her. It’s going to be very harmful to her. In a psychological-

   Judge:             I’m really sorry, Ms Benciková. I’ve heard all that before. I am now going to make a ruling. [Your daughter] will be taken into care and you will go to prison.

And with that, the judge delivered her judgment. 

It was brief.  The judge was “intensely  conscious that the mother is in the hearing, extremely distressed, and that the upshot of this situation is that I’m about the send the mother to prison this afternoon, with the result that [the child] will be placed in foster care, away from the mother this afternoon”.  So, she referred to the background to the case as set out in the Court of Appeal judgment and said “I will not repeat it”. She briefly outlined the case and said:

 “I am in the situation where the mother has consistently and persistently refused to comply with court orders. That is a matter that has to be closely considered by the court. I am also of the view that the only way the Guardian will get to meet the child is by sending the mother to prison and placing the child with foster parents who will take her to meet the Guardian. In those circumstances, I consider I have no choice but to lift the suspension and send the mother to prison for 28 days. […] I am inclined to agree with Mrs Justice Henke that it is unlikely that sending the mother to prison will take us any further forward in the long term to end with better re-establishing the relations between [the child] and the father.  However,  given the mother’s total refusal to comply with court orders,  I would ask the mother to consider firstly, the harm that SHE has caused the child by refusing to comply with orders. Second that the child will meet the Guardian, as I told the mother would take place last week. I’m concerned that the mother should not be taken to prison in front of the child, so I am asking [the local authority] to ask the social workers to go round and collect the child now and then the police to go and arrest the mother once the child has been removed. I should say at the end that the mother is not represented today, but at our last hearing I explained to her, yet again, that she was entitled to legal representation but she said she had previously had lawyers who had not represented her properly, and she said she did not want the opportunity to get lawyers.  I have also gone to great lengths to explain the process to the mother and to try to persuade her to comply with the orders, so that the case would not reach this unhappy conclusion. The mother has absolutely refused to listen to the advice the court has given. That’s the end of the judgment.”

During the judgment, the mother was weeping, shaking at times, had her head in her hands and looked extremely distressed.  It was upsetting to watch what was happening.

Reflections

Court orders are binding. Wilful breach will be punished, whether or not this is likely in the long run to compel compliance – because otherwise the authority of the court is undermined.  That is necessary for the proper operation of justice, says the Court of Appeal.  This is how it looks in practice.

The implications of this Court of Appeal judgment are exactly the same for the Court of Protection as for the Family Court: if people repeatedly breach orders they will eventually be sent to prison even if that isn’t going to make them comply.

It’s interesting though, to note the difference between this Court of Appeal judgment and another case heard nine years ago, concerning Teresa Kirk – who was in contempt of court for breaching court orders by taking her brother, who had dementia, to a care home in Portugal (where he was born) and refusing to return him to England, despite the Court of Protection having determined that this was in his best interests[4].  The Court of Appeal judgment is here: Devon County Council v Teresa Kirk [2016] EWCA Civ 1221.

In the Teresa Kirk case, the Court of Appeal (specifically LJ McFarlane) wrote as follows:

“I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of [her brother] MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it. (§27, my emphasis, Devon County Council v Teresa Kirk [2016] EWCA Civ 1221)

Where, as was apparently taken to be the case before Baker J, it is said that the move could only be secured by placing Mrs Kirk under threat of the sanction of imprisonment, it is arguable that the very question of whether Mrs Kirk should be put in that position and face the prospect of a prison sentence for non-compliance should have been addressed by the COP in the context of [her brother’s] MM’s welfare. In short terms, that question might be ‘is the move to Devon still in MM’s best interests if it may only be achieved by sending to prison someone whose interests he could be expected to have at heart, had he the capacity?‘ (§33, my emphasis, Devon County Council v Teresa Kirk [2016] EWCA Civ 1221)

By analogy, the stark facts of the case I watched before Mrs Justice Lieven raise the question of whether the Family Court was justified, on the basis that it was in the child’s best interests to do so, in making an order which placed her mother in jeopardy of a prison sentence unless she complied with it.  The question that, perhaps, should have been addressed was: “are the welfare reports to the father and the “story board” work still in the child’s best interests if they can only be achieved by sending her mother to prison” – when it’s clear (as the judge said) that this would cause the daughter “emotional, psychological and financial” harm.  Those issues may perhaps have been addressed – I don’t know, since none of the earlier judgments seems to have been published.

I’ve seen the same dilemma emerge in many committal cases I’ve watched in the Court of Protection. Attempts to prevent family members from acting in ways the court considers contrary to P’s best interests lead to orders with penal notices.  But family members have their own opinions about what is in the best interests of the protected party, and they act in accordance with their own views rather than comply with (what they see as) the misguided version of P’s best interests promoted by the court.  When court orders are breached, family members are at risk of prison sentences – but having their family members put in prison is rarely in the protected party’s best interests, so these orders can sabotage the wellbeing of the very people they are designed to protect.

The new Court of Appeal judgment which led to the Family Court hearing I’ve described here clearly increases the pressure on judges to punish contemnors (“I have the Court of Appeal telling me I have to send this lady to prison, effectively”). It upholds judicial authority and the rule of law – but can in doing so cause harm to children and protected parties, thereby amplifying the dilemma at the heart of these cases.

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] This was a public committal hearing and the names of both parents are already in the public domain as applicant (the father) and defendant (the mother).  There is a reporting restrictions order protecting the name of the child and some other details.

[2] “No-order is not an option”: The Court of Appeal re-states the duty to sanction contempt in Family proceedings – Commentary on B (A Child) (Sentencing in Contempt Proceedings) [2025] EWCA Civ 1048

[3] All extracts purporting to be direct quotations from the hearing are based on contemporaneous touch-typed notes.  They are unlikely to be completely accurate, but they are as accurate as I could make them (and it was somewhat less challenging than usual to take notes at the time in this hearing compared with some others because speech was slowed to accommodate the interpreter).

[4] The Teresa Kirk case was widely reported in the media and was mobilised as a cause celebre in some of the early calls for transparency, having come (said the Daily Mail) “to represent all that is wrong with Britain’s shadowy Court of Protection”. There’s a characteristically incisive analysis of the case by barrister Barbara Rich in a blogpost for the Transparency Project, here (“Teresa Kirk and the Court of Protection – the end of an ‘astonishing story’”). 

The problem with Motability Hire Agreements: A Deputy’s concerns in the COP

By Amanda Hill, 11th August 2025

Update 30th September 2025: The OPG have now issued a press statement summarising what deputies should do and an address to contact Motability. You can read about it here:

Motability, contracts and deputies

Update 2nd September 2025: I’ve now received a copy of the approved order for this hearing so I’ve added a section at the end of the blog with the relevant information

Working like clockwork. This implies each small part moves in precise harmony to keep the larger system functioning. Wouldn’t it be wonderful if the state was like that? I’ve recently observed a hearing that reflected the exact opposite.

Deputies, both lay (mostly family and friends) and professional, play a crucial role managing property and affairs for vulnerable people.  They experience a lot of difficulties at the coalface, and leading up to the hearing I observed, many different components combined to create a problem that nobody seems to be able to solve and nobody is taking responsibility for.

At the centre of this hearing was Deborah Pardoe, CEO of AST, Allied Services Trust, which is a deputy as a Trust Corporation.  She’s doing her best to highlight significant problems but coming up against “the system” – or rather different parts of the system: human, legal, digital, governmental.  She’s ended up frustrated and disappointed that she couldn’t achieve the outcome she wanted, in spite of the achievements that did result.

At its heart, the issue at stake in this hearing was a risk that Deputies for Property and Affairs face (as do professional and lay attorneys) . But more fundamentally than that it highlights that a Deputy for Property and Affairs really has nowhere to turn to for support and advice, nobody who will take up an issue on their behalf. They are appointed by the Court of Protection and supervised by the Public Guardian, but neither the court, nor the Public Guardian provide deputies with support: that’s not their function. And deputies don’t have power over other parts of the system that impacts how deputies function. That’s the backdrop to this hearing.

Deborah was the applicant in this case, for and on behalf of AST, and she was a Litigant in Person. She wanted to highlight a risk faced by deputies and was trying to find a way of eliminating that risk. She had identified a flaw in in the system, and wanted it changed.  The power of the Court of Protection is circumscribed – it couldn’t do what she wanted, but the case shows the court can nevertheless be used to facilitate solutions to seemingly intractable problems.

The flaw in the system she was concerned about concerns Motability Hire Agreements.  These agreements clearly expose deputies, both lay and professional, to personal and professional risk. She applied to the court over two years ago now to try to seek a remedy for the flaw, not just on her behalf but on behalf of the thousands of other lay and professional deputies she believes are impacted by this issue. She has been persistent in her application and it’s now being considered before the President of the Court of Protection, on 18th July 2025.

In this blog I’ll first outline the specific problem with Motability Hire Agreements that led to this application[1] and then set out what happened at the hearing.  I’ll end with the Deputy’s reflections on her experience

1. Motability hire agreements

The background to this hearing is quite technical but has important legal implications. Many of you may have heard of the Motability Scheme. This allows the higher mobility element of certain benefits such as Disability Living Allowance (DLA) and Personal Independence Payment (PIP) to be exchanged to lease a vehicle. Anyone eligible for a Motability vehicle must enter into a legal agreement with the Motability Scheme. If, however, someone lacks capacity to manage their property and affairs, then someone else with the necessary authority such as a deputy, an attorney or an appointee must sign the agreement on their behalf.

Deputies for Property and Affairs are appointed by the Court of Protection, to manage the property and affairs of the protected party ‘P’. Section 19 (6) of the Mental Capacity Act states that a deputy for property and affairs is P’s agent: “A deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part”. Therefore, when a deputy (acting within the scope of his authority) contracts with a third party on behalf of P, they do so as agent for P and not as principal under the contract. However, the contracts issued by Motability treat the deputy as “hirer” and impose obligations upon them as if they were the principal under the contract and not the agent of P. Insurance issued in respect of a Motability Vehicle is issued on the basis that the deputy, and not P, is the insured party.

This leads to a risky legal position for the deputy. It is common for Motability vehicles to be driven by someone other than the hirer, such as carers or family members of the person who lacks capacity. There are concerns that if a deputy is named as principal on the lease agreements, the deputy becomes liable for the actions of the drivers and users of the vehicles. For example, any claims on insurance would be made against the deputy and any offences committed by the driver, such as speeding, would in the first instance be charged to the deputy. AST have highlighted further concerns that any claims could affect the deputy in obtaining their own personal insurance or professional indemnity insurance.

The underlying problem is compounded by outdated government IT systems and the way Motability systems talk to them. The current IT system operated by the Department for Work and Pensions (DWP) cannot record a status of “deputy for property and affairs appointed by the Court of Protection”[2]. The DWP computer system is unable to distinguish between a deputy, attorney or appointee. Motability can only act on information recorded by the DWP. Because of this, Motability systems cannot recognise that a deputy for property and affairs acts for P as agent and not principal, and do not distinguish between the legal status of agent and principal.

The consequences of this situation are that a P may not get a vehicle to which they are entitled (if a deputy refuses to sign the agreement due to the risk involved) or the deputy signs the agreement and is faced with the risks outlined above.

AST acts as corporate deputy for property and affairs, appointed by the Court of Protection, for their client, the protected party ‘SS’. When AST became aware of their risky legal situation, they informally contacted the Ministry of Justice (MOJ), the DWP, Motability and Motability’s insurers to achieve a solution. Although Motability put in place a manual workaround, according to Deborah Pardoe, this wasn’t fit for purpose.

Therefore, on 28 April 2023, AST applied to the Court of Protection in relation to SS to try to obtain an order for Motability and its insurers to recognise the status of a deputy and to record the deputy as an agent rather than the principal.

The wheels of justice moved slowly and it wasn’t until 20 December 2024 that the court gave directions that Motability, the insurers, the DWP and the MOJ should seek to resolve the issues and report back to the court. No resolution was forthcoming, however, and on 23 April 2025, the court directed the Public Guardian to provide a report to aid discussions. The Office of the Public Guardian is an executive agency of the Ministry of Justice and its role is to support and supervise deputies, investigate concerns, and safeguard people who lack capacity.

AST applied to the court to progress matters. §5 of the PS from the DWP states: By a COP9 dated 19 June 2025 AST invites the court to join the various organisations involved as parties to these proceedings. AST seeks orders (a) directing Motability and Royal Sun Alliance (or any other insurer) “to acknowledge the Court Order appointing Allied Services Trust as Property and Affairs Deputy for SS” and (b) to direct Motability to “issue a Motability contract and insurance policy in the name of the client SS and not AST”; (c) to direct the DWP to record AST as a Court Appointed Deputy and not an appointee. (For clarification, Motability cars are now insured by Direct Line, who took over from Royal Sun Alliance in 2023).

According to §14 of the PG’s PS, Senior Judge Hilder listed the application for a hearing before the President of the Court of Protection. The court’s order of 23 June 2025 states:

“the court considers that

a) the ability of DWP to give proper recognition to deputyship status and

b) the engagement to date/willingness of the Office of the Public Guardian to engage with systemic problems in the operations of deputyship are matters of such significance that they ought to be considered further by the Court.” (my emphasis)

The positions of the DWP, Motability and the Public Guardian

Reading the position statements (PS) of the organisations involved provided me with valuable insight into issues about jurisdiction.

A major factor affecting this hearing was the relationship between the organisations and the power of the Court of Protection over those organisations.  The DWP is responsible for transferring mobility allowances to Motability Operations Limited (MOL). MOL is an independent company but its systems rely on information provided by the DWP. The Ministry of Justice funds and oversees the Office of the Public Guardian, and is responsible for the operation of the MCA 2005, but has no role in the administration of the Motability scheme. The DWP is completely separate to the OPG. The Court of Protection (CoP) is responsible for making decisions in the best interests of P if they are found to lack capacity. The CoP, although it appoints a deputy for property and affairs to act in P’s best interests, has no responsibility towards the deputy. MOL and the DWP do not believe that the court has jurisdiction to order them to do anything.

The nub of the issue was that the court could not order the DWP, or Motability, to act. And the OPG had limited responsibility for the problem too. The court was effectively being used to facilitate a resolution to the problem. And the applicant was faced with a problem to which there was no easy solution, and nobody was accepting responsibility for solving it.  §13 of the Public Guardian position statement states “the issue appeared to relate to the internal processes of the various bodies concerned”. Processes need to be improved – but what can be done?

The DWP is refusing to change its IT system.  §7 (b) and (c) of the DWP PS states that “the amendment to the computing systems that AST anticipates would be a substantial piece of work that the DWP is not in a position to effect at this time; and a proportionate, pragmatic approach as proposed by Mobility Operations Limited should be put in place”.

Motability have acknowledged that there is an issue with its current IT systems but also assessed that it would be too difficult to change their IT systems. However, they can use a “manual work around”. This can be done as long as the DWP can confirm that P is in receipt of the relevant qualifying benefit. Therefore, it still involves the DWP and MOL communicating.

The manual workaround that was trialled in early 2023, between AST and MOL, with the contract being manually altered to show P as the principal did not work, as information was not disseminated to the Insurance Provider, the DVLA and other third parties.  When the details were altered on the IT system, it meant that all correspondence would be sent to P, and not the deputy. So, the IT system changed the principal back to AST.

The new workaround agreed at this hearing is to show “P as the principal, by his/her Deputy” detailing the deputy who is named, and the AST address used for correspondence. The contract also records P’s address as the registered owner. This information can be retained on the Motability IT system and can be sent to the insurance provider, DVLA etc (which was not happening previously).

I also note from the position statements that the Public Guardian did not wish to be joined as a party to proceedings. The DWP submitted in its position statement that it was not desirable for it to be joined as a party. I couldn’t find any reference in the PS for MOL as to its position on being joined as a party. I understand that the Ministry of Justice and the Insurance Company for Motability (Direct Line) were invited to attend the hearing but didn’t.

2. The hearing

The hearing for COP 13704625, Friday 18th July 2025, was listed on the Court and Tribunal Hearings (CaTH) as follows:

“SS” is the P who ATS acts as deputy for. In common with most Royal Courts of Justice listings, the substantive content of the hearing was not indicated. I had no idea what the hearing would be about but as I haven’t observed a hearing before the President and I happened to be in London for another hearing that day, when I saw the listing the evening before, I decided to observe in person.

I arrived at the Royal Courts of Justice in good time for the hearing and made my way up the grand staircase in the West building to the 1st floor, where I knew Court 33 was located. I could see a number of people around a table just in front of the courtroom. I gathered that they were in some sort of discussion before the hearing. They were discussing a draft order but apart from that I wasn’t actively listening and couldn’t hear what they were saying anyway.  When the courtroom door opened at 10.20, they all made their way in and I followed them. I approached the clerk at her desk and said that I wanted to observe the hearing, asked for a copy of the transparency order (TO) so that I understood the reporting restrictions and mentioned that I would like a copy of the parties’ position statements. In a short time, I had received a hard copy of the position statement from the PG and MOL. Counsel for the DWP asked me for my email address and sent it to me immediately. This is in line with guidance in Poole J: AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3). I also received a hard copy of the TO from Counsel for the PG.  I really appreciated being given the position statements so quickly once I had entered the courtroom but I didn’t have time to read them before the hearing started, so I didn’t understand what it was about.

The hearing began when Sir Andrew McFarlane, President of the Court of Protection, entered the courtroom just after 10.30am and without any preamble, addresses “Miss Pardoe” and asks her to speak as “it’s your application”. 

 Deborah Pardoe, appearing as a Litigant in Person, started to say something about the application.  After a short while,  David Rees KC representing the Public Guardian stepped in and offered to do the introductions. The other representatives were: Nicola Kohn 39 Essex Chambers representing the DWP and Eliza Eagling 5 Stone Buildings  representing MOL.

The judge didn’t acknowledge me at all during the hearing and he didn’t do anything to make me feel particularly welcome.  There was also no summary for my benefit as advised by the former Vice-President, Mr Justice Hayden (“The Court of Protection and transparency”). These points are listed in our blog Fifteen Top Transparency Tips for Judges. I hope it’s not going to be the case that now that judges are aware that observers are likely to be provided with position statements (PSs) they will be less willing to allow time for a summary. We still need an opening summary since PSs are often sent so close to (or after) the time of the hearing that we don’t have time to read them by the time the hearing starts, as was the case with this hearing.

I must admit, sitting at the back I found it quite hard to hear in places, and difficult to follow. There were no microphones. I remember thinking that I was glad I would have the PSs to read afterwards.  I’ll do my best to give a flavour of what I heard and understood. The hearing proceeded as follows:

The judge states that he has been given a draft order and asks if it has been agreed. Ms Pardoe says not all of draft order has been agreed. The judge comments that the CoP understands the jurisdiction issue, repeats that a draft order has been agreed and is about a deputy not being named principal in the hire agreement. The judge then asks Ms Pardoe what jurisdiction the Court of Protection has to order the DWP to do something. Ms Pardoe replies “I don’t know, that’s why I’m asking the court”. The judge states that no court has jurisdiction and asks her “did you take legal advice?”. Ms Pardoe replies something about the DWP that I couldn’t catch.[3] Counsel for the PG then speaks and says that they have had a meeting outside the court. The CoP has limited powers when it comes to public bodies (he must include MOL as a public body even though technically I don’t think it is, as it’s a limited company), as it makes decisions on behalf of P. It is proposed by the organisations that Motability (MOL) change the hire agreement so that the P will be the principal and they will update all bodies including DVLA. (I think this refers to the revised manual workaround).

There was some technical discussion that I couldn’t follow at this point.

The judge then states that the order isn’t agreed. It is agreed by the public bodies but not the applicant. The collective case is that the court has sympathy for her position but that there is no remedy the CoP can order. Counsel for the PG states that there has been constructive discussion, and that the matter has been before the CoP for some time.

“Two years” the judge states baldly. He then asks how the order can be publicised to deputies. Counsel for the PG replies that court orders are not usually published on their website. The judge states again that it would be useful for “some sort of public recital” to go out so that there is wider publicity for deputies and MOL:  “If some good is going to come out of this, it needs to be publicised so people in future won’t (be uninformed? )…I am grateful to the PG for co-operating with this process”.

He then speaks to Counsel for MOL, asking her about manual entry to the system. She states that it may take some time for the process to be automatic, for MOL IT to be able to speak to DWP systems and that may stop a disabled person from receiving a vehicle ….so there would have to be the manual workaround. Other deputies should know who to contact (at MOL). The judge states that it is good to know that efforts can be made to alter Motability systems and he is grateful to Motability.

He then turns to Counsel for the DWP but as she doesn’t have a microphone and I am sitting right behind her, I can’t hear what she says in reply.

The judge then says: “Miss Pardoe, what further do you wish me to do?”

Ms Pardoe states that steps have been agreed and are a significant improvement. She then asks “As a deputy who do we go to for support with this sort of matter? The OPG are helpful but there are areas as a deputy that ….(I can’t hear).”

There was then the following exchange about who a deputy could turn to.

Judge: …and you feel you are being fobbed off without an easy avenue to resolve….

Ms Pardoe: This isn’t about P, it’s about being a deputy and discharging their role.

Judge: “But that’s not a role for the CoP, and what have you achieved now compared to two years ago?

I felt there was an implicit criticism that by following through with the application, she had wasted the court’s time.  But it was Senior Judge Hilder who had referred the matter to the higher court, so presumably Senior Judge Hilder must have felt that something more could be done.

Ms Pardoe replied that the previous workaround “didn’t work” so the proposal made, if it worked, would be an improvement. The judge asks her if she is content for the court order to say the applicant is content, as well as the public bodies. I think she agrees. She asks about the delay in the roll out of the manual work around.  Counsel for MOL replies that Motability is contacting its IT teams but can’t promise anything with regards to timelines. She mentions a special team is in place. The judge agrees to add a sub-paragraph to the order that mentions the “best endeavours” of Motability to deal with the issue quickly for individual applications.

The judge concluded by saying that the “court having no power to do anything has achieved something by bringing everyone together”.  

The judge then rose just before 11am. The hearing was over after just under 30 minutes.

Counsel stayed in the courtroom and were talking about how to publicise the workaround more widely. I then realised that they were looking at me and mentioning whether a blog could be published. I said that I didn’t think that would be a problem.

One difficulty I have encountered in writing this blog is that I haven’t received a copy of the approved order, because it hasn’t been sealed yet. The draft had to be amended and holidays are slowing things down.

I understand though that the approved order places the onus on an attorney or deputy to contact Motability to request the workaround. Motability will use its “best endeavours” to apply the Manual Amendment to the hire agreement. (section v of the order).

3. Reflections from the applicant

I contacted Deborah Pardoe after the hearing, in order to make sure that I had understood everything correctly.

She has been advised that the Public Guardian is working with external communications and stakeholder engagement teams for the order to be advertised as soon as possible so that deputies know about the workaround. She said that this situation has raised the question of who a deputy or attorney can go to for quick effective and efficient help and support.  

She also told me “I wanted to ensure that those working for and on behalf of the vulnerable of society are protected, by a correct working practice, and the correct recording of a deputyship appointment, and importantly for the Law from which those attorneys and deputies hold appointment to be respected by third parties”.

I asked her what she thought had been achieved from the process. She is clearly frustrated and disappointed that the onus is still on the deputy or attorney to contact Motability. She said that many deputies aren’t aware of the risk. What, for example, would happen if somebody was killed by a Motability car driver and the agreement was with the Deputy?

When I asked her what she thought she’d achieved, she summarised it like this:

“What has been achieved?

  1. A temporary revised manual workaround.

Although the opportunity to have a defined timeline on how, where and when that workaround will be put in place was lost.

  • Recognition by Government Departments and Motability that there is an issue with the current DWP and Motability IT systems that do need to be addressed.
  • Motability now acknowledging the Deputyship Order rather than relying on incorrect information supplied by DWP.

However, Motability have no requirement to evidence that processes discussed at the hearing will actually be implemented, “best endeavours” is a woolly term and non-committal.

  • Awareness that there appears to be no effective and efficient system to provide support to deputies or attorneys, hence the reason the case was taken to the President.

Whilst the above achievements are progress, there remains the disappointment that the Court did not use the opportunity of the hearing to go further to protect the position of the deputy.

This case was not about the Court requesting third parties to make changes for P, (case law relating to this stance was heavily relied upon during the hearing) it was about the Court requesting that the DWP and Motability acknowledge and respect the Deputyship Order appointing a Deputy.  This case was about the Court itself being respected, and for those working on its behalf to be protected.

Simply, the Court of Protection make decisions to protect the vulnerable of society, the Public Guardian is required to oversee those decisions.  How then, can the Court of Protection and the Public Guardian have no ability to protect those working for and on behalf of the Orders that the Court have made?

The hearing was brought before the President because of the lack of proactive engagement and resolution from those attending the hearing (and the Ministry of Justice and Direct Line who elected not to attend) and lack of support to the deputy from the Public Guardian in the two years leading up to the 18 July 2025.  HHJ Hilder gave all parties opportunity to engage.

Whilst the Public Guardian is in the process of arranging for the order to be published/advertised, following the hearing, the where, when or how the Final Order is to be published/advertised to support all those involved with Motability Vehicles is yet to be mentioned. Motability were not requested to evidence any advances they make to their internal systems to the Public Guardian.  Further the onus will currently remain upon the deputy, attorney or appointee to request the manual workaround…… but how can anyone ask for something if they do not know there is something to be asked for!

As a result, the many thousands of deputies, attorneys and indeed appointees currently remain working at risk.

A little tongue in cheek…… This case can be summed up as follows:

Everybody, Somebody, Anybody, and Nobody

A team had four members called Everybody, Somebody, Anybody, and Nobody.  There was an important job to be done.  Everybody was sure that Somebody would do it.  Anybody could have done it, but Nobody did it. Somebody got angry about that because it was Everybody’s job.  Everybody thought Anybody could do it.

Nobody realised that it’s Everybody’s job.  Everybody wouldn’t do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.”[4]

Sections from the approved order dated 18th July 2025 (added to blog 2nd September 2025):

AND UPON the Applicant, Public Guardian, Motability and the Secretary of State for Work and Pensions agreeing and the Court recording that:

  1. The Applicant is a Trust Corporation for the purposes of s.64(1) Mental Capacity Act 2005 and s.68(1) Trustee Act 1925.
  2. A person appointed as a deputy for property and affairs for P pursuant to section 16(2) of the Mental Capacity Act 2005 is, in accordance with s.19(6) MCA 2005, to be treated as P’s agent in relation to anything done or decided by the deputy within the scope of its appointment and in accordance with the MCA 2005.
  3. Accordingly, the Applicant, in acting as deputy for property and affairs for SS is to be treated as SS’s agent.
  4. Motability agrees to manually amend (“the Manual Amendment”) the hire agreement in the cases of SS and those other individuals in respect of whom the applicant acts as deputy for property and affairs and to recognise and name SS (or as the case may be the individual for whom the applicant is acting as deputy) as hirer thereunder (the manual amendment on Motability’s IT systems automatically generates an update to relevant third party service providers including the insurance provider and DVLA).
  5. Motability will use its best endeavours to apply the Manual Amendment to the hire agreements in respect of other individuals who are acting by their deputy or attorney under an enduring or lasting power of attorney upon request from the said deputy or attorney, as the case may be.
  6. Motability agrees to take steps to ensure that the status of a property and affairs deputy as agent for “P” (and the status of an attorney under a Lasting Power of Attorney as agent for the donor of the power) is understood and recognised by its organisation.
  7. The represented public bodies agree that the resolution of the IT difficulties as between Motability and the Secretary of State for Work and Pensions is a policy decision that falls outwith the powers of the Court of Protection.

AND UPON the Secretary of State acknowledging that her use of the terms “appointee” or “corporate appointee” as a badge on its IT system, Searchlight, may cover appointees, attorneys under enduring and Lasting Powers of Attorney (under Schedule 4 and s.9 Mental Capacity Act 2005) and deputies (under s.16 Mental Capacity Act 2005).

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] I am very grateful for the receipt of position statements from the represented organisations who attended the hearing: The Department for Work and Pensions, the Public Guardian and Motability Operations Limited. I also received some information after the hearing from AST, who did not write a formal position statement. They submitted a summary and request for decisions to the Court.  These have all helped me to understand this hearing better and enabled me to increase the accuracy of my reporting.  I have heavily relied upon these documents, especially for the background to the hearing.

[2] Only AST have tested this in court in relation to their client SS in COP13704625. But the issue is believed to be much wider.

[3] Deborah Pardoe told me afterwards that she had spoken to a lawyer informally but was worried about legal costs to the charity of obtaining formal representation. They offer their services on a not-for-profit basis.

[4] Anonymous poem, widely attributed to Charles Osgood: Osgood, C. (n.d.). The responsibility poem. In Apple Seeds: Inspirational quotes and short stories (J. Bartley, Ed.).